N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ WOODROW DIGGS,

Claimant

- Appellant

v.

DAVID J. SHULKIN, SECRETARY OF VETERAN S AFFAIRS, Respondent

- Appellee

______________________

2016

- 2243

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 1 4- 2017, Judge Alan G. Lance, Sr.

______________________

Decided: July 14, 2017

______________________

J OHN F. C AMERON , Montgomery, AL, argued for claimant

- appellant.

R EBECCA S ARAH K RUSER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent -appellee. Also represented by T ANYA K OENIG , B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R

. , S COTT D. A USTIN ; C HRISTINA L YNN G REGG , Y. K EN L EE , Office of General Counsel,DIGGS v. SHULKIN 2

United States Department of Veterans Affairs, Washin gton, DC.

______________________

Before M OORE , O’M ALLEY , and R EYNA , Circuit Judges.

R EYNA , Circuit Judge

. Woodrow Diggs appeals a decision of the Court of A ppeals for Veterans Claims. Mr. Diggs argues that the Veterans Court erred by applying an improper legal standard in concluding that Mr. Di ggs had not filed a substantive appeal

. Because the Veterans Court applied the correct legal standard , we affirm

. B ACKGROUND

1. Mr. Diggs’ Military Service

In June 1970, Mr. Diggs entered active duty military service. I n July 1970, Mr. Diggs was admitte d to the U.S. Army Hospital, Fort Polk, Louisiana for psychiatric evaluation. J.A. 76

– 79. The treating physician diagnosed Mr. Diggs with schizophrenia and neutropenia

. 1
During his hospitalization, Mr. Diggs told a military psychiatrist, Dr. Ulmer, that he had shot a drill instru ctor. J.A. 77. Although he apparently believed he had shot his instructor, he had not . J.A. 104. Dr. Ulmer’s notes reflect that Mr. Diggs provided a history that he “claims to both hear and see devil [for] 11⁄2 years.” J.A. 77. Su bsequent treatment notes reflect that Mr. Diggs stated that he had been convicted of grand larceny at 13, suspended or expelled from school three times, and was fired from about eight different jobs. J.A. 77.

1 Neutropenia is an abnormally low concentration of neutrophils (a type of white blood cell) in the blood. Petitioner’s neutropenia diagnosis is not at issue on appeal.DIGGS v. SHULKIN 3

In November 1970, Mr. Diggs was discharged from the army after a Medical Evaluation Board found that he

was unfit for further military service. J.A. 3, 148.
Following his discharge , Mr. Diggs was hospitalized multiple times for psychiatric problems. During a 1972 hospitalization at the VA Me dical Center in Miami, Dr. Wainer noted that Mr. Diggs was hospitalized “while on active du ty, after shooting his drill [sergeant] because he was continuously bugging him. It was most probable that at that time, he had an acute psychotic break.” J.A. 225

. During a 1973 hospitaliz ation at the same facility, Dr. Herrero noted that Mr. Diggs had “a history of a psychotic break while in active duty and also has a hist ory of use of different hallucinogenic drugs.” J.A. 236. During his incarceration in 1976, Dr. Parado noted that Mr. Diggs stated that he “has been hearing voices since he was in the U.S. Army.” J.A. 329.
2. Mr. Diggs’ Veterans Claims
Immediately following his discharge , Mr. Diggs filed a series of claims for disability seeking service connec tion for schizophrenia. All of the claims were denied. His repeated requests for reconsideration were also deni ed. In 1978, the Board of Veterans Appeals denied Mr. Diggs ’ appeal for service connection. T he Board found that despite the usual presumptio n of soundness for veterans, given the detailed clinical history in this case, Mr. Diggs’ schizophrenia “clearly and unmistakably predated his service induction.” J.A. 649. The B oard also found no “aggravation of the condition in issue.” Id

. The B oard found that there was “no persuasive evidence that there was an advance in the basic underlying psychopathology during his period of active duty”; rather, it saw the ev idence as reflecting only continuance during service of Mr. Diggs’ preservice psychiatric problems, including halluc inations. Id . The B oard also found that “any change inDIGGS v. SHULKIN 4

his condition was within the limits of normal progression of the preservice defect.” Id

. F rom 1978 to 1995, Mr. Diggs repeatedly requested to reopen his claim for service connection. Each request was denied for failure to furnish new and material evidence. Following a claim he made in 1994, Mr. Diggs filed a timely Notice of Disagreement (“NOD”)

. On November 3, 1994, i n response to the NOD, the R egional O ffice issued its Statement of the Case (“SOC”) , continuing its denial of service connection because Mr. Diggs’ claim was “not supported by the official service medical records nor is there evidence of treatme nt for a nervous condition while the veteran wa s in service.” J. A

. 1515

– 20

. On March 3, 1995, a VA employee wrote a Field E xamination Report for fiduciary purposes concerning who should be the payee of Mr. Diggs’ VA pension bene fits. J.A. 1538

– 41. That document also included a statement, under the “Entitlement To Other Benefits” section, that “[t]he veteran does not appear to be in need of either aid and attendance or housebound benefits. He has no VA life insurance. He is aware of medical benefits. H e has filed a claim for service connection regarding his mental disorder .” J.A

. 1539 (emphasis added)

. Another F ield E xamination R eport in May 1995 considered Mr. Diggs ’ capacity to manage funds and concluded that Mr. Diggs ’ VA benefits should continue t o be sent to his wife. J.A

. 1542

– 46. The report also stated, in the “Entitlement To Benefits” section, that “[t]he veteran also mentioned to me that he h as a claim pending for service

- connection for his mental condition and his claim is presently in the Vete rans Court of Appeals.” J.A

. 1545 (emphasis added)

. In November 1997, Mr. Diggs again requested to re open his claim for service connection. J.A. 4. The Regional Office denied service connection in July 1999, but on appeal, the Board sought a medical opinion regarding whether Mr. Diggs’ condition worsened during service.DIGGS v. SHULKIN 5

On May 8, 2003, Mr. Diggs received a medical exam ination from the VA, and the VA subsequently granted Mr. Diggs service connection in 2004. J.A. 1923

– 28; 1994

– 98. Mr. Diggs’ servi ce connection for schizophrenia was granted effective the date of his 1997 claim.
Mr. Diggs challenged that 1997 effective date both on direct appeal

, and through an assertion of clear and unmistakable error (“ CUE ”) in the 1978 board decision. 2 On direct appeal, Mr. Diggs argued that he was entitled
to an earlier date because he had earlier claims for service connection that remained unadjudicated. J.A. 3176. Specifically, Mr. Diggs argued that his March 1995 statement to the VA as recorded i n the VA examiner’s report constituted a timely substantive appeal of the November 1994 SOC

. This argu ment was rejected by the B oard in an April 17, 2014 deci sion , finding that the report did not indicate disagreement with any VA decision or contain any o f the information contemplated by 38 U.S.C. § 7105(d)(3) . J.A. 21. Mr. Diggs appealed to the Veterans Court, which affirmed the Board’s decision

. The Veterans Court held “that the Board properly found that the March 1995 report does not meet the criteria to be construed as a Substantive Appeal, as it does not reflect any disagreement with or desire to appeal the November 1994 SOC.” J.A. 8 (citing Gibson v. Peake , 22 Vet. App. 11, 15 (2007); 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.202). This appeal followed.

D ISCUSSION

1. Standard of Review and Jurisdiction
This court may review a Veterans Court decision “with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation.” 38 U.S.C.

2 Mr. Diggs has withdrawn his CUE argument and therefore it is no longer at issu e for this appeal.DIGGS v. SHULKIN 6

§ 7292(a). This court may not, however, “review the Veterans Court’s factual findings or its application of law to facts absent a constitutional issue.” Singleton v. Shinseki , 659 F.3d 1332, 1334 (Fed. Cir. 2011) (citations omitted).
In reviewing a Veterans Court decision, this court may decide “all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). This court “reviews de novo statutory and reg ulatory interpretations relied upon by the Vete rans Court.” Mayfield v. Nicholson , 499 F.3d 1317, 1321 (Fed. Cir. 2007).
As a preliminar y matter, the government contend s that we must dismiss this appeal for lack of jurisdiction. The Secretary argues we l ack jurisdiction to hear the appeal because the appeal is not directed to a question of law, but rather to a pplication of law to fact s. We dis agree. Both parties agree that the facts are undisputed. Mr. Diggs argues on appeal that the Veterans Court fa iled to apply the controlling rule of law in Rivera v. Shinseki

, 654 F.3d 1377 (Fed. Cir. 2011)

, and applied an improper legal standard in adopting the Board’s four

- corners test. These questions concern whether the correct rule of law was applied and invoke questions of law that are revie wa ble by this c ourt. Willsey v. Peake , 535 F.3d 1368, 1372 (Fed. Cir. 2008). This court, therefore, has jurisdiction to review the Veterans Court decision raised in this appeal.

2. Applicability of Rivera v. Shi nseki

A core issue that was before the Veterans Court co ncern s a March 1995 report prepared by a VA field exa miner. J.A. 7, 1538 –4 1. Mr. Diggs did not file it himself, and it merely notes that Mr. Diggs “has filed a claim for service connection regarding his mental disorder.” J.A. 1539. The record also shows a second VA field examin ation report from May 1995, which states that “the veteran also mentioned to [the examiner] that he has a claimDIGGS v. SHULKIN 7

pending for service

- connection for his mental condition and hi s claim is presently in the Veterans Court of A ppeals.” J.A. 1545.
Mr. Diggs argued that the March 1995 report const ituted an appeal of the November 1994 SOC

. The Vete rans Court disagreed , holding “that the Board properly found that the March 1995 report does not meet the criteria to be construed as a Substantive Appeal, as it does not reflect any disagreement with or desire to appeal the November 1994 SOC.” J.A. 8 (citing Gibson v. Peake

, 22 Vet. App. 11, 15 (2007); 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 2 0.202). Specifically , the Veterans Court noted the Board’s finding that the March 1995 report does not contain any of the information contemplated by 38 U.S.C. § 7105(d)(3). J.A. 7. That subsection states:
The claimant will be afforded a period of sixty days from the date the statement of the case is mailed to file the formal appeal. This may be e xtended for a reasonable period on request for good cause shown. The appeal should set out specific alleg a tions of error of fact or law, such allegations rela t ed to specific items in the statement of the case. The benefits sought on appeal must be clea rly identified.
38 U.S.C. § 7105(d)(3).
On appeal, Mr. Diggs argues that the Veterans Court failed to apply the controlling rule of law in Rivera v. Shinseki

, 6 54 F.3d 1377 (Fed. Cir. 2011 ). In Rivera , we held that “Section 7105(d)(3) does not prescribe a partic ular format for the veteran ’ s appeal or a particular degree of specificity that must be provided .” Id . at 1381. “[L]ess specificity is nec essary when t he regional office’ s decision turns on only a single issue and the nature of the claimed error with respect to that issue is obvious from the dec ision itself. ” Id . “ In fact, when the regional office decides only one issue and references only one issue in the stat e-DIGGS v. SHULKIN 8

ment of the case, the vet eran’ s expression of a desire to appeal from the regional office ’ s decision effectively ide ntifies the issue to be decided by the Board.” Id

. Mr. Diggs argues that his statements to the VA exa miner expressed a desire to appeal , and that those stat ements under Rivera were sufficient to constitute an expression to appeal. Mr

. Diggs argues that the Veterans Court erred when it relied on Gibson , rather than Rivera

. We disagree

. The Veterans Court cited Gibson for the

cor rect legal proposition that to qualify as an appeal, the veteran’s statement must reflect disagreement. 22 Vet. App. at 15

. Although Rivera hold s that “ the veter an’ s expression of a desire to appeal from the regional office’ s decision ” might itself be a sufficient appeal in some cases, 654 F.3d at 1381, the Board found that the March 1995 report “ does not reflect any disagreement with or desire to appeal the November 1994 SOC .” J.A. 8. The Veterans Court affirmed the Board’s conclusion that “[t]here is no indication of disagreement with any VA decision co ntained within the report.” J.A. 8, 21. The Veterans Court , therefore, did not need to address Rivera

. Mr. Diggs argues that in reaching this conclusion, the Board and the Veterans Court improperly c onfined their analysis and consideration to the four corners of Mr. Diggs’ March 1995 document and ignored all other doc uments in his claims file

. Mr. Diggs notes that 38 C.F.R. § 20.202 requires the Board to read filings by claimants in a liberal manner. Mr. Diggs also cites Douglas v. Derwinski , 2 Vet. App. 435, 439 (1992), which found that the Board’s review is not limited to the four corners of a Form 1

- 9 substantive appeal, and that the Board must consider all the evidence of record.
In this case, how ever, there was no appeal filed in 1995. Mr. Diggs did not make any sort of filing in 1995, and the oral statements he did make did not include aDIGGS v. SHULKIN 9

request for an appeal. There is no requirement that the Board interpret filings liberally where no filings w ere made. Douglas does not apply in this case bec ause the claimant in Douglas had actually filed an appeal

. We find that the Veterans Court did not err in refu sing to apply a “four

- corners” test

. We affirm the Veterans Court’s decision.

3. Notice to Mr. Diggs
Finally, Mr. Diggs argues that the Board failed to provide him notice of the inadequacy of his 1995 “ appeal ” as required under 38 C.F.R. § 20.203 (1994)

. The Vete rans Court did not address this issue in its opinion as it was never raised by Mr. Digg s. Notwithstanding, t he Veterans Court found there was

no s ubstantive a ppeal filed and, as such

, it did not need to reach the issue of whether the Board should have provi ded notice of that nonexistent appeal’s inadequacy. Ther efore, Mr. Diggs’ argument th at the Board failed to provide him notice is unpersuasive.

C ONCLUSION

Because the Veterans Court applied the correct rule of law, we affirm the Veterans Court’s decision.

AFFIRMED

C OSTS

No costs.