United States Court of Appeals 

for the Federal Circuit 

__________________________ 

GEORGE SINGLETON, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7106 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 08-1131, Judge Bruce E. 

Kasold. 

__________________________ 

Decided: August 8, 2011 

__________________________ 

KENNETH M. CARPENTER, Carpenter, Chartered, of 

Topeka, Kansas, argued for claimant-appellant. 

MARTIN F. HOCKEY, JR., Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

respondent-appellee. With him on the brief were TONY 

WEST, Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and TODD M. HUGHES, Deputy Director. Of 
SINGLETON v. DVA 2

counsel on the brief were MICHAEL J. TIMINSKI, Deputy 

Assistant General Counsel and DANA RAFFAELLI, Attorney, United States Department of Veterans Affairs, of 

Washington, DC. 

__________________________ 

Before BRYSON, PLAGER, and PROST, Circuit Judges. 

PROST, Circuit Judge. 

George Singleton is a Navy veteran who served during the Vietnam War and who now suffers from posttraumatic stress disorder (“PTSD”) and schizophrenia. 

He applied for disability benefits in February 1981 but his 

claim was rejected. Much later, the United States Court 

of Appeals for Veterans Claims (“Veterans Court”) and 

the Board of Veterans’ Appeals (“Board”) concluded that 

Mr. Singleton was in fact entitled to benefits stemming 

from that initial claim. This case concerns the procedures 

the Board applied to retrospectively assess the extent of 

Mr. Singleton’s disability (and so compute the value of his 

claim) during the twenty-seven years from 1980 to 2007. 

Mr. Singleton contends that the Board’s procedures 

denied him due process. For the reasons set forth below, 

we disagree. 

I. BACKGROUND

For our purposes, the story of this case began April 

11, 1980, when the Department of Veterans Affairs (“VA”) 

added diagnosis of PTSD to the disabilities rating schedule. See generally Schedule for Rating Disabilities; New 

Diagnostic Code, 45 Fed. Reg. 26,326 (Apr. 18, 1980) 

(later codified at 38 C.F.R. pt. 4). About ten months after 

PTSD was added to the schedule, Mr. Singleton filed a 

claim for disability benefits in connection with an acquired psychiatric disorder, namely schizophrenia and 
3 SINGLETON v. DVA

PTSD. Mr. Singleton contended that his condition was 

traceable to his Navy service in the 1970s, but his claim 

was denied for lack of service connection after the VA was 

unable to verify some of his allegations. For various 

reasons, this denial never became final and Mr. Singleton’s case remained open but dormant. See Singleton v. 

Nicholson, No. 04-2396, 2006 WL 4111519, at *1 (Vet. 

App. Dec. 22, 2006) (“2006 Ct. Op.”) (analyzing the status 

of Mr. Singleton’s claim between 1981 and 2001). 

Time passed. On August 7, 2001, Mr. Singleton asked 

that his claim be reopened and submitted new evidence of 

service connection. This time, the VA granted service 

connection and assigned a 100% disability rating effective 

the date of the 2001 filing. On appeal to the Board, Mr. 

Singleton argued that his benefits should be back-dated 

further in accordance with his 1981 claim. The Board 

held a hearing in April 2004 concerning this argument, 

which it subsequently rejected. Bd. Vet. App. 0429095 

(Oct. 22, 2004), rev’d, 2006 Ct. Op.

The Veterans Court, however, agreed with Mr. Singleton that benefits should have been awarded in the period 

before the 2001 filing reopened the case. 2006 Ct. Op. at 

*2. It ordered the Board to determine an earlier effective 

date for Mr. Singleton’s benefits and to compute his back 

benefits accordingly. The Veterans Court specifically 

instructed the Board to determine the level of Mr. Singleton’s disability “for the various periods of time during the 

pendency of the claim, a practice known as ‘staged’ ratings.” Id. 

On remand the Board determined that Mr. Singleton 

was entitled to benefits dating back to the addition of 

PTSD to the rating schedule, April 11, 1980. Bd. Vet. 

App. 0723470 (July 30, 2007) (“July 2007 Bd. Op.”), aff’d 
SINGLETON v. DVA 4

sub nom. Singleton v. Shinseki, 23 Vet. App. 376 (2010). 

Five months later, the Board established the following 

staged ratings for Mr. Singleton’s disability:1

Period I (April 11, 1980–December 9, 1980):

 50% 

Period II (December 10, 1980–October 31, 1991):

 100% 

Period III (November 1, 1991–December 28, 2000):

 70% 

Period IV (December 29, 2000 onward): 100% 

Dec. 2007 Bd. Op. Notably, the Board held that the 70% 

rating for Period III was justified because Mr. Singleton 

was able to maintain jobs during that period and was 

married. Id.

Mr. Singleton appealed to the Veterans Court. He argued that the transition from a 100% rating in Period II 

to 70% in Period III was a “reduction” in his benefits and 

that, under the applicable regulations, he was entitled to 

an opportunity to submit new evidence and argument 

and, potentially, to undergo a medical exam before such a 

reduction could be made. The Veterans Court disagreed 

and affirmed the Board. Singleton v. Shinseki, 23 Vet. 

App. 376 (2010) (“2010 Ct. Op.”). Mr. Singleton timely 

 1 Having set April 11, 1980 as the effective date for 

Mr. Singleton’s disability, the Board initially remanded to 

the Regional Office for determination of rating. July 2007 

Bd. Op. Following a motion for reconsideration by Mr. 

Singleton, however, the Board withdrew the remand and 

took it upon itself to determine ratings. Bd. Vet. App. 

0738783 (Dec. 10, 2007) (“Dec. 2007 Bd. Op.”), aff’d sub 

nom. Singleton v. Shinseki, 23 Vet. App. 376 (2010). 
5 SINGLETON v. DVA

appealed. This court has jurisdiction to review the legal 

determinations of the Veterans Court. 38 U.S.C. § 7292. 

Our review of those legal determinations is de novo. This 

court may not review the Veterans Court’s factual findings or its application of law to facts absent a constitutional issue. Id.; see also Reizenstein v. Shinseki, 583 F.3d 

1331, 1334 (Fed. Cir. 2009). 

II. ANALYSIS

Mr. Singleton’s argument in this appeal is a variation 

of the case he presented to the Veterans Court. There, 

Mr. Singleton contended that because the Board’s staged 

rating assessment included a total disability period 

exceeding five years (i.e., Period II, from 1980 to 1991), 

Mr. Singleton’s disability during that period became 

“stabilized.” See 38 C.F.R. § 3.344. He urged that when 

his rating became stabilized, the VA was precluded from 

reducing it from the stabilized level without following the 

procedural provisions of § 3.344, which included “a recent, 

full, and complete medical examination indicating improvement[.]” See 2010 Ct. Op. at 378. As already noted, 

the Veterans Court rejected this line of reasoning. Applying the logic of this court’s decision in Reizenstein, the 

Veterans Court held that the protections of § 3.344 were 

not to be applied in cases of retrospective staged ratings. 

Rather than simply present this court with the same 

argument the Veterans Court already rejected, Mr. Singleton applied a fresh coat of paint in the hope of attracting more favorable judicial treatment. Mr. Singleton no 

longer seeks a holding that § 3.344 applies to retrospective staged ratings. Instead, he argues that the VA’s 

failure to require application of the procedures of § 3.344 

(or some other hypothetical procedures closely resembling 

them) when retrospectively assessing Mr. Singleton’s 
SINGLETON v. DVA 6

disability effectively denied Mr. Singleton of property 

without due process and so fails constitutional muster.2

The subject “property,” according to Mr. Singleton, 

was the total disability rating that would begin December 

10, 1980. The “denial” of that property, again according 

to Mr. Singleton, occurred when the Board held that 

“Period II” of Mr. Singleton’s total disability ended on 

October 30, 1991, and “Period III” began, with Mr. Singleton only 70% disabled from November 1, 1991 to December 28, 2000. Mr. Singleton argues that the due process 

clause required a separate evidentiary proceeding before 

the Board could conclude that a period of 70% disability 

should follow one of total disability. 

We disagree. To begin with, we note that, assuming 

the staged ratings assigned by the Board ultimately 

 2 The government urges that this constitutional argument was not made to the Veterans Court or the Board 

and so should be held waived. There is precedent for this 

court declining to hear arguments, even constitutional 

arguments, not raised to previous tribunals. See Solorio 

v. United States, 483 U.S. 435, 451 n.18 (1987); Smith v. 

West, 214 F.3d 1331, 1334 (Fed. Cir. 2000). We agree 

with the government that it is incumbent upon appellants 

to timely raise all arguments in support of their cases 

before trial and intermediate tribunals, and failure to do 

so can lead to waiver before this court. Nevertheless, we 

decline the government’s invitation to affirm the Veterans 

Court on waiver grounds alone. Though the new constitutional gloss Mr. Singleton has applied to his case before 

this court was not present below, his argument is essentially consistent with his previous positions and in this 

unique circumstance we will hear it. We reject, however, 

Mr. Singleton’s suggestion that his failure to present his 

constitutional claims earlier is excusable because he did 

not know that the Veterans Court would reject his arguments under § 3.344. Litigants are charged with presenting all of their arguments in a timely fashion. 
7 SINGLETON v. DVA

become final, they will have been the subject of (1) an 

evidentiary hearing held by the Board in 2004, (2) an 

appeal to the Veterans Court, and (3) an appeal to this 

court. 

As the government noted in its briefing, “The fundamental requirement of due process is the opportunity to 

be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) 

(internal quotation marks omitted). In that case the 

Supreme Court set forth guidance for determining the 

constitutional sufficiency of a process that results in a 

deprivation of property: 

[O]ur prior decisions indicate that identification of 

the specific dictates of due process generally requires consideration of three distinct factors: 

First, the private interest that will be affected by 

the official action; second, the risk of an erroneous 

deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, 

finally, the Government’s interest, including the 

function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 

Id. at 334–35. Applying this guidance to Mr. Singleton’s 

case leads us to conclude that the process applied by the 

Board and the Veterans Court was sufficient to meet 

constitutional requirements. 

As to the first factor, this court has previously recognized a constitutionally-protected property interest in a 

veteran’s entitlement to disability benefits. Cushman v. 

Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). This 
SINGLETON v. DVA 8

recognition was based on our reasoning that “[v]eteran’s 

disability benefits are nondiscretionary, statutorily mandated benefits. A veteran is entitled to disability benefits 

upon a showing that he meets the eligibility requirements 

set forth in the governing statutes and regulations.” Id.

(emphasis added). To the extent that Mr. Singleton has a 

protectable property interest here to disability benefits, 

that interest extends only so far as the law creates it. 

And while Mr. Singleton is correct that § 3.344 confers a 

measure of additional security to veterans whose disability rating has “stabilized” (i.e., has remained at the same 

level for over five years), we see nothing in the regulation 

or the caselaw suggesting that this extra security is 

available when establishing staged ratings retrospectively. This court has previously expressed skepticism 

that retrospective assessment of changes in a veteran’s 

disability rating could work a “reduction” in the veteran’s 

compensation. See Stelzel v. Mansfield, 508 F.3d 1345, 

1347–49 (Fed. Cir. 2007). We therefore disagree with Mr. 

Singleton that any constitutionally-protected interest he 

has extends so far as to provide him security against a 

staged rating computation in which a period of total 

disability is followed by one of a lower rating. 

This conclusion is consistent with our opinion in 

Reizenstein. 583 F.3d 1331. There, the veteran claimant 

argued that the Board, operating in the retrospective 

staged rating context, could not “reduce” his disability 

rating from one period to the next without providing a 

medical examination as per 38 C.F.R. § 3.343. We disagreed, deferring to the VA’s position that such procedures were inapplicable to staged ratings. Id. at 1336–37. 

A similar logic applies here. In the circumstance presented in this case, we see no constitutional deprivation 

in the VA adopting for staged ratings a set of procedures 

tailored to that context. 
9 SINGLETON v. DVA

Turning to the second factor, we deem that the process applied to Mr. Singleton’s case was more than sufficient to minimize the risk of Mr. Singleton being 

erroneously deprived of his benefits. Mr. Singleton had a 

2004 hearing before the Board. In 2007 he specifically 

requested staged rating of the Board and had the opportunity to argue for whatever ratings he thought best 

applied. Unsatisfied with the Board’s staged rating 

decision, he appealed to the Veterans Court and, unsatisfied with that decision, he appealed to this court. He has 

shown no reason why this was not sufficient process to 

expose any error in the Board’s decision, nor any justification to expect that yet another round before the Board 

would make the process substantially more fair. We 

therefore conclude that the process here was sufficient to 

protect Mr. Singleton’s interests. 

Finally, the government has a straightforward interest in the speedy resolution of Mr. Singleton’s claim. 

Adding further rounds of review (and, potentially, further 

rounds of appeal) would require yet more hours of labor 

and additional adjudication costs for the government. 

In sum, Mr. Singleton has had his day in court concerning the staged ratings and legal process sufficient to 

satisfy his Fifth Amendment rights. We see no constitutional deprivation in the conduct of his case, and we 

therefore affirm. 

AFFIRMED