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NOTE: This disposition is nonprecedential.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
Case: 19-2180 Document: 37 Page: 3 Filed: 08/06/2020
STUBBLEFIELD v. WILKIE 3
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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4 STUBBLEFIELD v. WILKIE
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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STUBBLEFIELD v. WILKIE 5
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
Case: 19-2180 Document: 37 Page: 6 Filed: 08/06/2020
6 STUBBLEFIELD v. WILKIE
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