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, Commer-
cial 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, Attor-
ney, 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 dur-
ing the Vietnam War and who now suffers from post-
traumatic 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 sched-
ule. 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 ac-
quired 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. Single-
ton’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. Single-
ton 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. Single-
ton’s disability “for the various periods of time during the
pendency of the claim, a practice known as ‘staged’ rat-
ings.” 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 ar-
gued 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 find-
ings or its application of law to facts absent a constitu-
tional 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 im-
provement[.]” See 2010 Ct. Op. at 378. As already noted,
the Veterans Court rejected this line of reasoning. Apply-
ing 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. Sin-
gleton applied a fresh coat of paint in the hope of attract-
ing more favorable judicial treatment. Mr. Singleton no
longer seeks a holding that § 3.344 applies to retrospec-
tive 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. Single-
ton only 70% disabled from November 1, 1991 to Decem-
ber 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 ar-
gument 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 constitu-
tional gloss Mr. Singleton has applied to his case before
this court was not present below, his argument is essen-
tially 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 argu-
ments under § 3.344. Litigants are charged with present-
ing 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 funda-
mental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful man-
ner.” 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 re-
quires 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 proce-
dures used, and the probable value, if any, of ad-
ditional or substitute procedural safeguards; and,
finally, the Government’s interest, including the
function involved and the fiscal and administra-
tive burdens that the additional or substitute pro-
cedural 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 recog-
nized 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 man-
dated 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 disabil-
ity 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 retrospec-
tively. 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 dis-
agreed, deferring to the VA’s position that such proce-
dures were inapplicable to staged ratings. Id. at 1336–37.
A similar logic applies here. In the circumstance pre-
sented 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 proc-
ess applied to Mr. Singleton’s case was more than suffi-
cient 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 oppor-
tunity to argue for whatever ratings he thought best
applied. Unsatisfied with the Board’s staged rating
decision, he appealed to the Veterans Court and, unsatis-
fied 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 justifica-
tion 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 inter-
est 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 con-
cerning the staged ratings and legal process sufficient to
satisfy his Fifth Amendment rights. We see no constitu-
tional deprivation in the conduct of his case, and we
therefore affirm.
AFFIRMED