N OTE : This disposition is nonprecedential. 

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

______________________ FRED B. SCHMIDT, JR. , Claimant

- Appellant,

v.

ERIC K. SHINSEKI, S ecretary of Veterans A ffairs, 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

______________________

K ENNETH M. C ARPENTER , Carpenter, Chartered, of Topeka, Kansas, for claimant

- appellant.

D OMENIQUE K IRCHNER , Senior Attorney

, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent

appellee. On the brief were S TUART F. D ELERY , Acting Assistant Attorney General, and J EANNE E. D AVIDSON , Director , and M ELISSA M. D EVINE , Trial Attor ney

. Of2 SCHMIDT v. SHINSEKI

counsel on the brief were D AVID J. B ARRANS , Deputy Assistant General Counsel and L ARA K. E ILHARDT , Atto rney, United States Department of Veterans Affairs, of Washington, DC.

______________________

Before R ADER , Chief Judge, L OURIE , and O’M ALLEY , Circuit Judges.

P ER C URIAM

. Fred B. Schmidt, a veteran of the United States Air Force, seeks a March 1970 effective date for his service

connected post

- traumatic stress disorder (PTSD)

. The Board of Veterans’ Appeals (Board) denied this effective date. The United States Court of Appeals for Veterans Claims (Ve terans Court) affirmed the Board’s denial

. Because the Veterans Court’s decision contains no r eversible error

, this court affirm s

. I.
Mr. Schmidt served on active duty in the United States Air Force from July 1967 to March 1970. H e 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 O ffice ( RO ) denied his claim. The Notice letter sent to Mr. Schmidt
stat ed:
To establish entitlement to this benefit, the ev idence must show that you have a disabi l ity i ncurred in or aggravated by service, in line of duty. Your nervous condition is not a disability for which compensation may be paid. Ther efore, compensation is not pay a ble.

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 depre ssion. J.A. 17

– 20

. The RO denied the claim

. Mr. Schmidt filed another claim for compensation i n A ugust 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, t he Board made his disability rating retroacti ve 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 d ated November 20, 2009

. J.A. 52

– 59.

In the 2009 opinion , t he 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 claim ed that he had not received adequate notice of his right to appeal , t he 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 appe llate 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 Ve terans Court. In his appeal, Mr. Schmidt initially raised4 SCHMIDT v. SHINSEKI

two arguments that are relevant here : (1) the RO’s re asons 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

. Ho wever, 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.

T he 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) . I n response to Mr. Schmidt’s first argument , the Veter ans Court noted that the alleged vagueness of the 1970 Notice lette r 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 , t he 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 const itutional 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 cou rt may “decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and [] interpret constit u-SCHMIDT v. SHINSEKI 5

tional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). Que stions o f 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. N either argument is persuasive.
Regarding issue exhaustion, Mr. Schmidt argues that the imposition of an issue exhaustion requirement by the Veterans Court co nflicts with the rule set forth in Sims v. Apfel , 530 U.S. 103 , 11 1–12 (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 inquisitoria l and non

adversarial

. Id. However, this court need not decide the applicability of Sims to this proceeding. Even a ssuming Mr. Schmidt is correct that Sims applies , his argument is premised on t he Veterans Court actually im posing an issue exhaustion req uirement. T hat 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 co mplained 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 .”). T he Veterans Court then discussed the r equirements for RO n otices of de nials 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 tha t 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.

T he Veterans Court did c omment 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, t he Veterans Cou rt 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 presum ption of regularity is similarly misplaced

. T he 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 advan ces. 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 prov isions of 3.103 as i t existed in 1970 as it relates to the notice of appellate rights and l i mit his arg ument only as to the reasons for the decision. In other words, we will not proceed on the basis o f lack of notice of appellate rights based on the re ference to appellate, e xcuse me, appeal paragraph as argued in our brief.
[ CHIEF JUDGE Kasold :] S o 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 du e process argument.
[ CHIEF JUDGE Kasold :] Alright.
[ COUNSEL: ] Mr. Schmidt relies on the plain la nguage of 38 C.F.R. 3.103 as it exis t ed in 1970 which required the VA’s N otice of disallowance of a claim to include three sp e cific 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 arg u ing?
[ COUNSEL: ] That’s correct your Honor.

Oral A rg. 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; s ee 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. ”); Ca rbino 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 . . . .”) (e mphasis added)

. In fact, it is highly inappropriate for8 SCHMIDT v. SHINSEKI

counsel to withdraw an issue in the trial court and then reassert it here.

I V.
For the foregoing reasons, this court conclude s 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

.