NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

FRED B. SCHMIDT, JR.,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee.

______________________ 

2012-7178

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-0877, Chief Judge Bruce E. 

Kasold. 

______________________ 

Decided: November 7, 2013 

______________________ 

KENNETH M. CARPENTER, Carpenter, Chartered, of 

Topeka, Kansas, for claimant-appellant. 

DOMENIQUE KIRCHNER, Senior Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondentappellee. On the brief were STUART F. DELERY, Acting 

Assistant Attorney General, and JEANNE E. DAVIDSON, 

Director, and MELISSA M. DEVINE, Trial Attorney. Of 
2 SCHMIDT v. SHINSEKI

counsel on the brief were DAVID J. BARRANS, Deputy 

Assistant General Counsel and LARA K. EILHARDT, Attorney, United States Department of Veterans Affairs, of 

Washington, DC. 

______________________ 

Before RADER, Chief Judge, LOURIE, and O’MALLEY,

Circuit Judges.

PER CURIAM. 

Fred B. Schmidt, a veteran of the United States Air 

Force, seeks a March 1970 effective date for his serviceconnected post-traumatic stress disorder (PTSD). The 

Board of Veterans’ Appeals (Board) denied this effective 

date. The United States Court of Appeals for Veterans 

Claims (Veterans Court) affirmed the Board’s denial. 

Because the Veterans Court’s decision contains no reversible error, this court affirms. 

I.

Mr. Schmidt served on active duty in the United 

States Air Force from July 1967 to March 1970. He filed 

an initial claim for disability compensation regarding a

chronic nervous condition on March 6, 1970. J.A. 13–14. 

A Department of Veterans Affairs Regional Office (RO) 

denied his claim. The Notice letter sent to Mr. Schmidt 

stated: 

To establish entitlement to this benefit, the evidence must show that you have a disability incurred in or aggravated by service, in line of duty. 

Your nervous condition is not a disability for 

which compensation may be paid. Therefore, 

compensation is not payable. 

J.A. 16. The letter included a notation referring to an 

“appeal paragraph” enclosure. J.A. 16. However, the 

appeal paragraph itself is not included in the record. Mr. 

Schmidt did not appeal the RO’s denial. 
SCHMIDT v. SHINSEKI 3 

In September 1999, nearly thirty years later, Mr. 

Schmidt filed a claim for compensation for bipolar depression. J.A. 17–20. The RO denied the claim. Mr. Schmidt 

filed another claim for compensation in August 2001, this 

time for PTSD, with major depressive disorder, dysthymic 

disorder, and panic disorder without agoraphobia. J.A. 

22. The RO granted his claim, initially assigning Mr. 

Schmidt a 50% disability rating effective from April 14, 

2001. J.A. 23. The RO later increased his disability 

rating to 100% effective December 20, 2002. J.A. 31.

Mr. Schmidt continued to contest the effective date for 

his disability and appealed the RO’s decision to the Board. 

In response, the Board made his disability rating retroactive to September 20, 1999, but denied Mr. Schmidt’s 

request for a March 1970 effective date. J.A. 37–44. 

After an initial appeal to the Veterans Court and remand, 

the Board again denied Mr. Schmidt’s request for a March 

1970 effective date in an opinion dated November 20, 

2009. J.A. 52–59. 

In the 2009 opinion, the Board observed that the RO 

sent Mr. Schmidt its rating decision including an “appeals 

paragraph” regarding his appellate rights on March 31, 

1970, and Mr. Schmidt did not appeal that decision. J.A. 

56. While Mr. Schmidt claimed that he had not received 

adequate notice of his right to appeal, the Board reasoned 

that the mere assertion of non-receipt of notice does not 

rebut the presumption of regularity. J.A. 56. Relying on 

this presumption, the Board concluded that the RO had 

provided Mr. Schmidt with adequate notice of his appellate rights pursuant to 38 C.F.R. § 3.103. J.A. 56. Because Mr. Schmidt had not demonstrated that the March 

1970 rating decision contained clear and unmistakable

error, the Board found that decision was final, and denied 

his request for an earlier effective date. J.A. 57. 

Mr. Schmidt appealed the Board’s opinion to the Veterans Court. In his appeal, Mr. Schmidt initially raised 
4 SCHMIDT v. SHINSEKI

two arguments that are relevant here: (1) the RO’s reasons for denying his 1970 claim were not specific enough 

and thus violated 38 C.F.R. § 3.103 and the Due Process 

Clause of the Fifth Amendment; and (2) the Board erred 

by applying the presumption of regularity to conclude 

that he received proper notice regarding the time and 

method to appeal the March 1970 rating decision. However, during oral argument before the Veterans Court, 

Mr. Schmidt’s counsel expressly withdrew the second 

argument concerning the presumption of regularity and 

stated he was only pursuing his first argument. Oral Arg. 

at 1:25-2:40, Schmidt v. Shinseki, No. 10-0877 (Vet. App. 

argued May 10, 2012), available at

http://www.uscourts.cavc.gov/oral_arguments_audio.php.

The Veterans Court subsequently affirmed the 

Board’s decision. Schmidt v. Shinseki, No. 10-0877, 2012 

U.S. App. Vet. Claims LEXIS 1301 (June 27, 2012). In 

response to Mr. Schmidt’s first argument, the Veterans 

Court noted that the alleged vagueness of the 1970 Notice

letter was not reasonably raised by the record. Id. at *5. 

The Veterans Court also stated that the law in 1970 did 

not require a detailed explanation for the decision. Id. 

Finally, the Veterans Court did not consider Mr. 

Schmidt’s second argument except to note that counsel

“explicitly withdrew” it. Id. at *2. 

Mr. Schmidt appeals the Veterans Court’s decision. 

This court has jurisdiction under 38 U.S.C. § 7292.

II.

This court has sharply circumscribed jurisdiction to 

review decisions of the Veterans Court. Absent a constitutional issue, this court “may not review (A) a challenge 

to a factual determination, or (B) a challenge to a law or 

regulation as applied to the facts of a particular case.” 38 

U.S.C. § 7292(d)(2). Nevertheless, this court may “decide 

any challenge to the validity of any statute or regulation 

or any interpretation thereof . . . and [] interpret constitu-
SCHMIDT v. SHINSEKI 5 

tional and statutory provisions, to the extent presented 

and necessary to a decision.” 38 U.S.C. § 7292(c). Questions of law are reviewed de novo. 38 U.S.C. § 7292(d)(1).

III.

Mr. Schmidt argues that the Veterans Court erred in 

two respects. First, he contends that the Veterans Court 

improperly applied an issue exhaustion requirement to 

his “vagueness” argument. Second, he alleges that the 

Veterans Court erroneously applied the presumption of 

regularity. Neither argument is persuasive.

Regarding issue exhaustion, Mr. Schmidt argues that

the imposition of an issue exhaustion requirement by the 

Veterans Court conflicts with the rule set forth in Sims v. 

Apfel, 530 U.S. 103, 111–12 (2000). In that case, the 

Supreme Court held, in a plurality opinion, that issue 

exhaustion in Social Security Administration proceedings 

is inappropriate because they are inquisitorial and nonadversarial. Id. However, this court need not decide the 

applicability of Sims to this proceeding. Even assuming 

Mr. Schmidt is correct that Sims applies, his argument is 

premised on the Veterans Court actually imposing an 

issue exhaustion requirement. That premise is incorrect. 

Nothing in the Veterans Court’s opinion suggests it 

applied an issue exhaustion requirement. Rather, the 

Veterans Court considered the record and concluded that 

it failed to reasonably raise the vagueness issue complained of by Mr. Schmidt. See Robinson v. Shinseki, 557 

F.3d 1355, 1361 (Fed. Cir. 2009) (“[C]laims which have no 

support in the record need not be considered by the 

Board.”). The Veterans Court then discussed the requirements for RO notices of denials as of 1970 and 

concluded that the law at that time did “‘not require that 

the RO’s reason for denying the claim be ultimately 

correct or thoroughly explained, only that it be included in 

the notice.’” Schmidt, 2012 U.S. App. Vet. Claims LEXIS 

1301, at *5 (quoting Fournier v. Shinseki, 23 Vet. App. 
6 SCHMIDT v. SHINSEKI

480, 486 (2010)). Here, it is uncontroverted that Mr. 

Schmidt received a Notice letter stating “Your nervous 

condition is not a disability for which compensation may 

be paid.” J.A. 16.

The Veterans Court did comment on the failure of Mr. 

Schmidt’s counsel to argue the alleged vagueness of the 

RO’s decision before the Board. But cautioning Mr. 

Schmidt’s counsel against piecemeal litigation is not the 

same as requiring issue exhaustion. Indeed, the Veterans 

Court did not base its judgment on counsel’s failure to 

previously raise this argument. It decided the issue on 

the merits. 

Mr. Schmidt’s next contention that the Veterans 

Court erred by affirming the Board’s use of the presumption of regularity is similarly misplaced. The Veterans 

Court did not address Mr. Schmidt’s presumption of 

regularity argument because Mr. Schmidt expressly 

withdrew it. And contrary to Mr. Schmidt’s assertions, 

the argument he briefed and then withdrew before the 

Veterans Court is the same as that which he now advances. The following colloquy between Mr. Schmidt’s counsel 

and Judge Kasold demonstrates as much: 

[COUNSEL:] Mr. Schmidt would like to withdraw 

a portion of his argument relative to the provisions of 3.103 as it existed in 1970 as it relates to 

the notice of appellate rights and limit his argument only as to the reasons for the decision. In 

other words, we will not proceed on the basis of 

lack of notice of appellate rights based on the reference to appellate, excuse me, appeal paragraph 

as argued in our brief. 

[CHIEF JUDGE Kasold:] So the only issue you 

are going to discuss is whether or not you were 

given sufficient information as to the reason it 

was denied? 
SCHMIDT v. SHINSEKI 7 

[COUNSEL:] That’s correct your Honor, and the 

due process argument. 

[CHIEF JUDGE Kasold:] Alright. 

[COUNSEL:] Mr. Schmidt relies on the plain language of 38 C.F.R. 3.103 as it existed in 1970 

which required the VA’s Notice of disallowance of 

a claim to include three specific things: First the 

reason for the decision, second the claimant’s 

right to initiate the appeal by filing a notice of 

disagreement, and third, the time limits which 

such notice for appeal must be filed. 

[CHIEF JUDGE Kasold:] Just to be clear, the 

second and third you’re no longer arguing? 

[COUNSEL:] That’s correct your Honor. 

Oral Arg. at 1:25-2:40, Schmidt v. Shinseki, No. 10-0877 

(Vet. App. argued May 10, 2012), available at

http://www.uscourts.cavc.gov/oral_arguments_audio.php. 

In view of Mr. Schmidt’s express withdrawal of his 

argument before the Veterans Court, this court does not 

consider it appropriate to entertain the argument for the 

first time on appeal. Forshey v. Principi, 284 F.3d 1335, 

1358 (Fed. Cir. 2002) (en banc), superseded on other 

grounds by statute, Veterans Benefits Act of 2002, Pub. L. 

No. 107-330, § 402, 116 Stat. 2820, 2832; see also 

Emenaker v. Peake, 551 F.3d 1332, 1339 (Fed. Cir. 2008)

(“[B]ecause it would be imprudent for us to address the

issue without the benefit of its having been properly 

presented to, and decided by, the Veterans Court, we 

decline to address the issue in the first instance.”); Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999); 38 U.S.C. 

§ 7261 (“[T]he Court of Appeals for Veterans Claims, to 

the extent necessary to its decision and when presented, 

shall (1) decide all relevant questions of law . . . .”) (emphasis added). In fact, it is highly inappropriate for 
8 SCHMIDT v. SHINSEKI

counsel to withdraw an issue in the trial court and then 

reassert it here.

IV.

For the foregoing reasons, this court concludes that 

the Veterans Court did not err in affirming the Board’s 

denial of the March 1970 effective date. The Veterans 

Court’s decision is therefore affirmed.