United States Court of Appeals 

for the Federal Circuit ______________________ 

OWEN M. BOZEMAN, JR.,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2015-7020

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 13-1992, Judge William A. Moorman.

______________________ 

Decided: March 1, 2016

______________________ 

MATTHEW J. ILACQUA, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claimant-appellant. Also 

represented by ROBERT VINCENT CHISHOLM, ZACHARY 

STOLZ, NICHOLAS L. PHINNEY; CHRISTOPHER J. CLAY, 

Disabled American Veterans, Cold Spring, KY; BARBARA

J. COOK, Cincinnati, OH.

MARTIN F. HOCKEY, JR., Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for respondent-appellee. 

Also represented by BENJAMIN C. MIZER, ROBERT E.
2 BOZEMAN v. MCDONALD

KIRSCHMAN, JR.; Y. KEN LEE, MEGHAN ALPHONSO, Office of 

General Counsel, United States Department of Veterans 

Affairs, Washington, DC. 

______________________ 

Before LOURIE, SCHALL, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge. 

Owen M. Bozeman appeals from a final judgment of 

the United States Court of Appeals for Veterans Claims

affirming a Board of Veterans’ Appeals decision denying 

Mr. Bozeman entitlement to an earlier effective date. The 

Veterans Court invoked the doctrine of issue exhaustion 

and refused to consider Mr. Bozeman’s argument that the 

Board failed to consider relevant evidence contained in 

the record. Because Mr. Bozeman’s argument was not a 

new legal argument raised for the first time on appeal, 

the use of issue exhaustion was improper. Therefore, we 

vacate and remand. 

I 

Mr. Bozeman served on active duty in the United 

States Army from July 1967 until August 1970, including 

a one-year tour of duty in Vietnam. In January 1993, 

Mr. Bozeman filed a claim for disability benefits with the 

United States Department of Veterans Affairs (VA) after 

spending six weeks at a VA Medical Center for treatment 

related to substance abuse. In August 1993, the VA 

awarded Mr. Bozeman service-connected benefits for PostTraumatic Stress Disorder (PTSD), rated as 10 percent 

disabling, effective January 5, 1993. 

From 1998 to 2000, Mr. Bozeman’s condition deteriorated, at least in part due to his PTSD. In 1998, Mr. 

Bozeman was awarded a 30 percent disability rating, 

which was increased to a 50 percent disability rating in 

1999. In 2000, the VA denied Mr. Bozeman’s claim for an 

increased rating. 
BOZEMAN v. MCDONALD 3

Mr. Bozeman underwent a VA Compensation and 

Pension Examination (C&P Exam) in 2002. The examiner found that Mr. Bozeman’s PTSD symptoms “were not 

reported as problematic or numerous, or severe.” J.A. 63. 

Rather, the examiner diagnosed Mr. Bozeman with polysubstance abuse and opined that “his impairments are, 

at least currently or recently, due to polysubstance 

abuse.” Id. Based on this examination, the Regional 

Office (RO) found Mr. Bozeman’s PTSD unchanged and 

denied an increase in rating. Mr. Bozeman submitted a 

timely Notice of Disagreement (NOD) in March 2003.

Mr. Bozeman was hospitalized from February 2003 to 

March 2003, and again from April 2004 to May 2004, due 

to “suicidal and homicidal thoughts[,] . . . nightmares, 

social isolation, mistrust of others and sleep disturbances 

with severe depression.” Id. at 79. In April 2004, the RO 

requested another C&P Exam, which was conducted in 

August 2005. The examiner concluded that Mr. Bozeman 

suffered from “chronic PTSD symptomatology off and on 

for the last 25 years”; that his “history of substance abuse 

may be a secondary way of coping with stress related to 

Vietnam”; and that he would have “difficulty . . . work[ing] in gainful employment, because of his 

PTSD symptoms as well as the underlying anger and 

hostility.” Id. at 77.

In February 2006, Mr. Bozeman’s disability rating for 

PTSD was increased to 70 percent, effective July 1, 2004. 

Mr. Bozeman appealed, seeking an earlier effective date. 

The RO issued a rating decision in August 2006, assigning a 70 percent rating for PTSD effective February 24, 

2003, awarding a temporary 100 percent disability rating 

for the hospitalization from April 2004 to July 2004,

assigning a 70 percent disability rating from July 2004, 

and awarding Mr. Bozeman entitlement to individual 

unemployability, effective February 24, 2003. 

Mr. Bozeman appealed, and in January 2012, the Board 

denied his claims for entitlement to a rating in excess of 
4 BOZEMAN v. MCDONALD

50 percent prior to February 24, 2003, and entitlement to 

a rating in excess of 70 percent after February 24, 2003, 

but granted a disability rating of 100 percent, effective 

November 22, 2010. 

Mr. Bozeman appealed to the Veterans Court, and in 

January 2013 the parties entered into a joint motion for 

remand (JMR) after agreeing that the Board failed to 

provide an adequate statement of its reasons and bases 

for its decision. The JMR instructed that “[o]n remand, 

Appellant is entitled to submit additional evidence and 

argument in support of his claim . . . and VA is obligated 

to conduct a critical examination of the justification for its 

decision.” J.A. 105. On remand, Mr. Bozeman’s representative submitted a brief on his behalf reiterating the 

terms of the JMR and asking the Board, “based upon the 

previously advanced arguments, and cumulative weight of 

the evidence[,]” to comply with the Veterans Court’s order 

“and for further action consistent with the discussion 

contained in the [JMR].” Id. at 5. 

In May 2013, the Board again denied entitlement to a 

rating in excess of 50 percent for PTSD prior to February 

24, 2003, finding that “[t]he most competent and credible 

evidence of record indicates that [Mr. Bozeman’s] serviceconnected PTSD was not producing or nearly approximating occupational and social impairment with deficiencies 

in most areas, or total occupational and social impairment 

prior to February 24, 2003.” Id. at 120. 

Mr. Bozeman again appealed to the Veterans Court, 

arguing that the Board failed to address relevant, material evidence contained in the 2005 examination report—

i.e., that Mr. Bozeman’s history of substance abuse may 

be a way of coping with his PTSD—which contradicts the 

2002 examination report relied upon by the Board in its 

decision. The Veterans Court, after finding that the JMR 

did not limit the scope of the Board’s review on remand, 

invoked the doctrine of issue exhaustion because
BOZEMAN v. MCDONALD 5

Mr. Bozeman failed to raise this argument on the previous appeal, in connection with the JMR, or before the 

Board on remand. Specifically, the court concluded that

the “VA’s interest in having a fair and full opportunity to 

consider all theories relevant to Mr. Bozeman’s appeal 

outweighs his interest in having his argument heard for 

the first time on appeal,” therefore, “the interest of judicial efficiency weighs in favor of invoking the exhaustion 

doctrine in this matter.” J.A. 7. On October 29, 2014, the 

Veterans Court denied Mr. Bozeman’s motion for single 

judge reconsideration, and entered judgment. 

Mr. Bozeman appeals. We have jurisdiction under 38 

U.S.C. § 7292(a), (c). 

II

We may set aside a Veterans Court decision only 

when it is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with the law.” Id. at 

§ 7292(d)(1)(A). 

As we explained in Maggitt v. West, when Congress 

has not mandated the exhaustion of administrative 

remedies, exhaustion is generally a matter of judicial 

discretion. 202 F.3d 1370, 1377 (Fed. Cir. 2000). Thus, 

the Veterans Court may hear arguments raised for the 

first time, but “it is not compelled to do so in every instance.” Id. Because the decision to invoke the doctrine 

of issue exhaustion is a discretionary one, its application 

is largely a matter of application of law to fact, a question 

over which we lack jurisdiction. Cook v. Principi, 353 

F.3d 937, 939 (Fed. Cir. 2003) (“This court is limited by its 

jurisdictional statute and, absent a constitutional issue, 

may not review challenges to factual determinations or 

challenges to the application of a law or regulation to 

facts.”). But to the extent that the issue raised involves 

solely a legal interpretation, we possess jurisdiction. 
6 BOZEMAN v. MCDONALD

In Scott v. McDonald, we outlined the three scenarios 

in which the invocation of issue exhaustion is appropriate: 

(1) the veteran, on an appeal from the RO to the Board, 

fails to identify errors made by the RO either by stating 

that all issues in the statements of the case are being 

appealed or by specifically identifying the issues being 

appealed; (2) the veteran raises an argument for the first 

time on appeal to the Veterans Court and the Veterans 

Court determines that the VA’s institutional interests 

outweigh the interests of the veteran under the balancing 

test set forth in Maggitt; and (3) the veteran raises an 

argument for the first time on appeal to this court and we 

do not consider it because we lack jurisdiction to hear 

arguments that have not been addressed by or presented 

to the Veterans Court. 789 F.3d 1375, 1378–80 (Fed. Cir. 

2015). We affirmed the Veterans Court’s invocation of 

issue exhaustion under the second scenario. Id. at 1381. 

Here, the Veterans Court found that Mr. Bozeman 

raised an argument for the first time on appeal and thus 

invoked issue exhaustion under the second scenario

outlined above. However, we conclude that the Veterans 

Court has erroneously expanded the legal definition of 

issue exhaustion to apply to a claimant’s citation of additional record evidence in support of his previously raised 

claim for an earlier effective date. There is no dispute 

that Mr. Bozeman sufficiently preserved his claim of 

entitlement to an earlier effective date for his PTSD 

claim. The mere citation of evidence already contained in 

the record to further support that claim is not a new legal 

argument for purposes of issue exhaustion. Thus, the 

Court’s decision to invoke issue exhaustion rested on an 

erroneous legal interpretation of the doctrine. 

Mr. Bozeman continuously argued that, based on the 

record, he was entitled to an earlier effective date. That 

he did not specifically cite the 2005 examination report 

until the second appeal does not transform his earlier 

effective date claim into a new legal argument. This is 
BOZEMAN v. MCDONALD 7

particularly true because the joint motion for remand did 

not limit the Board’s review on remand but specifically

instructed the Board to “conduct a critical examination of 

the justification for its decision.” J.A. 105. And, on 

remand, Mr. Bozeman requested that the Board consider 

the “cumulative weight of the evidence.” Id. at 5. Consequently, an argument that the Board failed to consider 

evidence contained in the record, which supports a veteran’s established legal claim, should not be considered a 

new legal argument raised for the first time on appeal.1 

Of course, just because an argument is based on evidence already in the record does not mean that it can 

never be subject to the doctrine of issue exhaustion. A 

new legal argument raised for the first time on appeal, 

even if based on already established evidence, can be 

subject to the issue exhaustion requirement. That is 

largely a decision for the Veterans Court. Here, however, 

we narrowly conclude that issue exhaustion cannot be 

invoked to bar citation of record evidence in support of a 

legal argument that has been properly preserved for 

appeal. 

Accordingly, we vacate the decision of the Veterans 

Court and remand for further proceedings consistent with 

this opinion. 

VACATED AND REMANDED

 

1 We offer no opinion as to whether or not the Board 

did, in fact, fail to consider relevant evidence contained in 

the record.