Stubblefield v. Wilkie

Case: 19-2180 Document: 37 Page: 1 Filed: 08/06/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

BRETT J. STUBBLEFIELD, SR., Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2019-2180 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-2797, Judge Michael P. Allen. ______________________

Decided: August 6, 2020 ______________________

KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, for claimant-appellant.

ROBERT R. KIEPURA, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent-appellee. Also represented by ETHAN P. DAVIS, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA PREHEIM; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Case: 19-2180 Document: 37 Page: 2 Filed: 08/06/2020 2 STUBBLEFIELD v. WILKIE

______________________

Before LOURIE, O’MALLEY, and CHEN, Circuit Judges. O’MALLEY, Circuit Judge. Brett J. Stubblefield appeals from a decision of the Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”) denying service connection for post-traumatic stress disorder (“PTSD”). Stubblefield v. Wilkie, No. 18-2797, 2019 WL 1511223 (Vet. App. Apr. 8, 2019). Before the Veterans Court, Stubblefield argued that the Board’s reliance on a November 2011 VA examination was errone- ous because the examination was inadequate. Before us, Stubblefield argues that the regulations governing service connection for PTSD are invalid in light of our decision in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Be- cause Stubblefield did not present this argument to the Veterans Court, he has waived his right to raise it on ap- peal. We therefore affirm. I. BACKGROUND Stubblefield served honorably in the Army Reserves from April 1981 to July 1987, with active duty training from April 1981 to July 1981. During his active duty train- ing, Stubblefield reports that he was threatened with a ri- fle by a fellow recruit. Shortly after his training, in October 1981, Stubblefield’s vehicle collided with a freight train near his home in Missouri, causing him to suffer partially debilitating spine and jaw injuries. In the years since the accident, Stubblefield has experienced various mental health issues and occupational impairments. In April 2011, Stubblefield submitted a claim for VA benefits for PTSD. The VA scheduled Stubblefield for an examination with a VA psychologist, Dr. Andrew Darchuk, which was held in November 2011. Dr. Darchuk was “un- able to verify the presence of symptoms” of PTSD due to

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Stubblefield’s inconsistent statements during the examina- tion. J.A. 29. Dr. Darchuk further noted that Stub- blefield’s symptoms were consistent with both “organic brain injury” and “some mood and anxiety disorders.” J.A. 40. Given Stubblefield’s history and automobile accident, Dr. Darchuk was left with a strong suspicion that Stub- blefield’s symptoms were connected to organic brain injury. Id. Dr. Darchuk did not provide any final diagnosis for Stubblefield’s condition. In August 2012, the St. Louis, Missouri regional office (“RO”) issued a decision denying Stubblefield’s PTSD claim due to the lack of a current disability and the absence of an in-service stressor event. Stubblefield timely appealed to the Board. The Board considered the record and denied service connection for PTSD on the same grounds as the RO. Stubblefield appealed to the Veterans Court. He ar- gued that the November 2011 examination was inadequate because it failed to provide any diagnosis and made only suggested conclusions based on speculation. He further ar- gued that the Board failed to provide adequate reasons for its reliance on the November 2011 examination. The Vet- erans Court found that the Board sufficiently justified reli- ance on the November 2011 examination and that Stubblefield failed to establish that the examination was inadequate. The Veterans Court further concluded that anything that might be lacking in the examination’s PTSD analysis was harmless because the Board found Stub- blefield lacks credibility due to inconsistent statements—a finding Stubblefield did not challenge on appeal. Stubblefield filed a motion for reconsideration or panel review. He argued that the November 2011 examination was inadequate in its conclusion that he does not suffer from PTSD because the examination report indicates that Stubblefield has many of the symptoms. He further argued that, if PTSD was not the proper diagnosis, the Board was

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obligated to assess whether some other condition was pre- sent and to assess whether that condition was service con- nected. The Veterans Court denied reconsideration, granted panel review, and adopted the original opinion as the decision of the panel. Stubblefield appeals. We have jurisdiction to hear ap- peals of purely questions of law pursuant to 38 U.S.C. §§ 7292(a), (c). II. DISCUSSION “Arguments not made in the court or tribunal whose order is under review are normally considered waived.” Gant v. United States, 417 F.3d 1328, 1332 (Fed. Cir. 2005). In appropriate circumstances, we can address issues not previously raised if the resolution of those issues is “beyond any doubt” or if an injustice might otherwise occur. Single- ton v. Wulff, 428 U.S. 106, 121 (1976). We can also excuse waiver if the appeal presents “an issue of exceptional im- portance.” Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, 1326–27 (Fed. Cir. 2019). On appeal, Stubblefield argues that the regulations governing a determination of service connection for PTSD, specifically 38 C.F.R. §§ 4.2, 4.125(a), and 3.304(f), imper- missibly require a diagnosis. He contends that the diagno- sis requirements are inconsistent with our interpretation of 38 U.S.C. § 1110 in Saunders v. Wilkie, 886 F.3d 1356 (2018), in which we held that pain can qualify as a disabil- ity under § 1110. He asserts that under Saunders, entitle- ment to service connection must be based on whether a veteran demonstrates a loss of functioning amounting to a disability; it does not require any formal diagnosis. Stubblefield maintains that this argument was not waived by his failure to “explicitly” raise it before the Vet- erans Court. Appellant’s Reply Br. 1. He argues that be- cause he “presented the question of whether VA’s examination report . . . was inadequate to determine his

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entitlement to service connected compensation,” the Saun- ders argument was implicitly raised before the Veterans Court. Id. at 1–2. He further contends that the Veterans Court necessarily interpreted the requirements of 38 U.S.C. § 1110 in its holding, meaning this issue was not raised for the first time on appeal. We disagree. Stubblefield’s briefing to the Veterans Court contains no mention of Saunders or any argument that the applica- ble regulations are invalid. Rather, he argued that the VA examination was insufficient in its analysis and did not support a conclusion of no PTSD. In its opinion, the Veter- ans Court noted that Stubblefield “questions the exam- iner’s conclusion that he did not meet the medical criteria to establish a PTSD diagnosis.” Stubblefield, 2019 WL 1511223, at *2. It did not, however, expressly interpret any regulation or address the regulations’ validity. Although an argument first raised in a motion for re- consideration would also likely be waived, we note that Stubblefield failed to raise his Saunders-based argument even at that stage. Stubblefield raised two issues in his motion for reconsideration. He reiterated his argument that, given the symptoms noted in the examination, the Board’s conclusion that he did not meet the criteria for a PTSD diagnosis was unsupportable. And he argued that the examiner failed to answer “the critical question of whether these symptoms represent a mental condition con- nected to the veteran’s service.” J.A. 8. Neither of these arguments invoke the validity of regulations governing compensation for PTSD in light of Saunders. Nor do his arguments address the correct interpretation of § 1110. Stubblefield does not cite the statute in his motion; he does not mention this court’s holding in Saunders; and he does not attempt to parse the correct legal definition of the term “disability,” all of which he does for the first time on appeal. Because Stubblefield failed to question the validity of 38 C.F.R. §§ 4.2, 4.125(a), and 3.304(f) before the Veterans

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Court, his argument is waived. Stubblefield does not, moreover, argue any exceptional or compelling reasons for us to excuse the waiver. We see none. Accordingly, we de- cline to depart from our general rule and hold that Stub- blefield’s Saunders-based argument is waived. III. CONCLUSION For the reasons stated above, we find Stubblefield’s statutory interpretation argument is waived. We have con- sidered Stubblefield’s remaining argument but find it to be without merit. We therefore affirm the Veterans Court’s decision. AFFIRMED