Murphy v. Wilkie

Case: 19-2064 Document: 59 Page: 1 Filed: 12/21/2020

United States Court of Appeals
for the Federal Circuit
______________________

DAVID G. MURPHY,
Claimant-Appellant

v.

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

2019-2064
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3080, Judge Michael P. Allen.
______________________

Decided: December 21, 2020
______________________

CHRISTIAN ARTHUR MCTARNAGHAN, Chisholm
Chisholm & Kilpatrick, Providence, RI, argued for claim-
ant-appellant. Also represented by APRIL DONAHOWER,
ZACHARY STOLZ, CHRISTOPHER J. CLAY; BARBARA J. COOK,
Barbara J. Cook, Attorney at Law, Cincinnati, OH.

SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by JEFFREY B. CLARK, MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK
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2 MURPHY v. WILKIE

SCADDEN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________

Before LOURIE, CLEVENGER, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
David G. Murphy, a veteran of the United States Army,
appeals a decision from the Court of Appeals for Veterans
Claims (Veterans Court) denying his claim for disability
benefits. Mr. Murphy argues that the Veterans Court
erred in determining that the Board of Veterans’ Appeals
(Board) lacked jurisdiction over his claim for disability
benefits due to his schizophrenia. We affirm.
BACKGROUND
Mr. Murphy served in the United States Army from
December 1971 to February 1974. Since his separation
from service, Mr. Murphy has suffered various conditions
for which he has sought disability benefits from the De-
partment of Veterans Affairs (VA). He first sought such
relief from a VA regional office (RO) in February 2003 for
post-traumatic stress disorder (PTSD); the RO denied this
claim because Mr. Murphy lacked a PTSD diagnosis. Mur-
phy v. Wilkie, No. 17-3080, 2019 WL 1029407, at *1 (Vet.
App. Mar. 5, 2019). This decision became final. Though he
lacked a PTSD diagnosis, a private doctor had diagnosed
Mr. Murphy with paranoid type schizophrenia in 1982. Id.
In October 2006, Mr. Murphy submitted another claim to
the RO for various disabilities, including schizophrenia
with anxiety, depression, and mood swings. Id. He also
requested that the RO reopen his claim for PTSD. Id. The
RO denied the claim for schizophrenia for failure to show
nexus for service connection and declined to reopen the
claim for PTSD for lack of material evidence. Id. From
2007 to 2012, the RO denied multiple requests by Mr. Mur-
phy to reopen his claims for schizophrenia and PTSD,
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MURPHY v. WILKIE 3

sometimes denying them separately and sometimes deny-
ing them together. Id. 1
The claim at issue in this appeal involves a request to
reopen filed by Mr. Murphy in February 2012 (2012 RTR).
In this filing, Mr. Murphy stated, “Please take action to
consider the following: Entitlement to service connection
for PTSD,” J.A. 149, and under the section entitled “Reo-
pening of previously denied disability,” id. at 150 (capitali-
zation removed), Mr. Murphy listed only “PTSD,” id. In
adjudicating this claim, the VA administered a medical ex-
amination to Mr. Murphy in which the physician found no
PTSD diagnosis but did note a diagnosis for schizophrenia.
Murphy, 2019 WL 1029407, at *2. The RO therefore denied
Mr. Murphy’s request to reopen his PTSD claim because he
lacked a PTSD diagnosis.
In December 2012, Mr. Murphy filed a Notice of Disa-
greement (NOD) with the RO that contained a cover page
stating that he disagreed with the RO’s decision on his
“[e]ntitlement to service connection for post-traumatic
stress disorder,” J.A. 179, and a handwritten attachment
in which Mr. Murphy mentions “schizophrenia” and
“PTSD” multiple times, see J.A. 180–81. In January 2013,
the RO filed its Statement of the Case (SOC) and Mr. Mur-
phy filed his appeal Form 9 and accompanying statement
shortly after. Murphy, 2019 WL 1029407, at *2. The
Form 9 included numerous mentions of both “PTSD” and
“schizophrenia,” J.A. 203–09, like Mr. Murphy’s NOD, and
specifically on the cover sheet, Mr. Murphy mentions that

1 In August/September 2007 and September 2008,
Mr. Murphy underwent two VA medical examinations.
Murphy, 2019 WL 1029407, at *1. Mr. Murphy argued to
the Veterans Court that this evidence was never addressed
by the VA. Id. If this contention is true, nothing in our
decision today precludes Mr. Murphy from submitting a
new request to reopen to the VA citing this evidence.
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4 MURPHY v. WILKIE

he is seeking to appeal his “PTSD/Schizo-Affective Bipolar
Type Issues,” id. at 203. Upon receipt of the Form 9, the
RO determined in February 2014 that, in addition to seek-
ing appeal of the RO’s denial of his 2012 RTR for his PTSD
claim, Mr. Murphy was also seeking, through his Form 9,
to reopen his previously denied benefits claim for schizo-
phrenia. The RO, however, denied this request to reopen
Mr. Murphy’s schizophrenia claim in July 2014 for lack of
new and material evidence. Murphy, 2019 WL 1029407, at
*3. Mr. Murphy did not appeal this denial. Id.
The Board heard testimony for Mr. Murphy’s PTSD ap-
peal in September 2014, and in a February 2015 decision,
the Board remanded the PTSD claim for further develop-
ment. Id. In May 2015, the RO maintained its denial and
this decision was then reviewed by the Board on appeal.
Id. In denying this appeal, the Board explained the follow-
ing with regard to Mr. Murphy’s schizophrenia claim:
The Board notes that generally the scope of a claim
of service connection for a specific psychiatric en-
tity (here, PTSD) encompasses all psychiatric enti-
ties shown, however diagnosed. Clemons v.
Shinseki, 23 Vet. App. 1 (2009). However, prior fi-
nal rating decisions separately denied service con-
nection for psychiatric disabilities other than
PTSD, and such other psychiatric disabilities [like
Mr. Murphy’s schizophrenia] are not the subject of
the instant claim. A July 2014 rating decision de-
clined to reopen a claim of service connection for
schizophrenia with anxiety, depression, and mood
swings; the Veteran did not file a notice of disagree-
ment with that rating decision, and that matter is
not before the Board.
J.A. 259.
Mr. Murphy appealed the Board’s decision to the Vet-
erans Court, arguing that the Board should have consid-
ered his schizophrenia claim. The Veterans Court
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MURPHY v. WILKIE 5

concluded that “[t]he Board clearly and appropriately at-
tempted to police its jurisdiction.” Murphy, 2019 WL
1029407, at *3 (citation omitted). Primarily, the Veterans
Court reasoned that Clemons, which it characterized as
“prevent[ing the] VA from denying a claim solely because
the claimant incorrectly labeled an existing underlying
condition that [the] VA would have discovered with further
developing the claim,” id. at *5, does not apply because
“Clemons itself draws clear distinctions between determin-
ing the scope of claims in the context of initial claims ver-
sus that of reopened claims,” id. (citing Clemons, 23 Vet.
App. at 7–9). Because Mr. Murphy’s claim was a request
to reopen, as opposed to an initial claim, the Veterans
Court determined that the reasoning of Boggs v. Peake, 520
F.3d 1330 (Fed. Cir. 2008) applied. Id. Applying Boggs,
the Veterans Court held that the Board correctly found it
lacked jurisdiction over the schizophrenia claim, properly
respecting the finality of previous agency decisions. See id.
In an alternative holding, however, the Veterans Court ap-
plied Clemons and concluded that Mr. Murphy did not have
“reasonable expectations of reopening both the schizophre-
nia and PTSD claims, at least not in February 2012” when
he filed his request to reopen. Id. (citation omitted). The
Veterans Court further explained, “In his February 2013
Form 9 and accompanying statement, [Mr. Murphy]
demonstrated a convincing understanding of the schizo-
phrenia and PTSD claims as separate claims and inde-
pendent bases for service connection.” Id. (citation
omitted). Mr. Murphy appeals this decision to our court. 2

2 Relevant to this appeal, though Mr. Murphy is now
represented by counsel, he was not represented by counsel
at the time of filing of his 2012 RTR and through much of
the proceedings at the VA.
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6 MURPHY v. WILKIE

DISCUSSION
Our court has limited jurisdiction to review Veterans
Court decisions. We “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or regu-
lation as applied to the facts of a particular case.” 38
U.S.C § 7292(d)(2). This court does, however, have juris-
diction to “decide all relevant questions of law, including
interpreting constitutional and statutory provisions.”
§ 7292(d)(1). We review legal determinations of the Veter-
ans Court de novo. Prenzler v. Derwinski, 928 F.2d 392,
393 (Fed. Cir. 1991).
Mr. Murphy alleges legal error in the Veterans Court’s
decision to apply the reasoning of Boggs as opposed to
Clemons. Appellant’s Br. at 8. We agree with Mr. Murphy
in this respect. But because the Veterans Court decision
included an alternative holding based on the reasoning of
Clemons, we affirm.
For sake of background, we begin with a brief overview
of Boggs and Clemons, two opinions related to determining
the scope of a veteran’s claim. Mr. Boggs was a veteran
who filed a claim for a left ear condition at the VA in 1955.
Boggs, 520 F.3d at 1332. Following a diagnosis of conduc-
tive hearing loss, the RO denied the claim for lack of a
nexus to service. Id. Almost 50 years later, Mr. Boggs filed
another application for left ear hearing loss following a di-
agnosis of sensorineural hearing loss. 3 Id. Treating this
claim as new and separate from the previous hearing loss
claim, the RO denied this claim for lack of service connec-
tion. Id. On appeal, the Board found that the newly

3 Somewhat critical to the holding of Boggs, conduc-
tive hearing loss affects the middle or outer ear while sen-
sorineural hearing loss affects the inner ear or auditory
nerve; the two conditions also tend to result from different
causes. See 520 F.3d at 1332–33.
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MURPHY v. WILKIE 7

diagnosed sensorineural hearing loss was cumulative of
the conductive hearing loss, and therefore, considering the
claims as one, it denied the second filing as a request to
reopen finding no new and material evidence. Id. at 1333.
The Veterans Court, on appeal from the Board, held that it
was correct to treat the two diagnoses together as one claim
as they both involved loss of hearing. Id. We reversed and
remanded, reasoning that the “‘factual basis’ of a claim for
purposes of 38 U.S.C. § 7104(b) is the veteran’s [actual] dis-
ease or injury rather than the symptoms of the veteran’s
disease or injury.” Id. at 1335. We explained that the
proper reading of 38 U.S.C. § 7104(b), and the test there-
under, is that “claims based on separate and distinctly di-
agnosed diseases or injuries must be considered separate
and distinct claims.” Id. at 1336. As applied to Mr. Boggs’s
case, the Veterans Court was to determine on remand
whether Mr. Boggs’s hearing conditions were based upon
different diagnosed diseases or injuries, id. at 1337, such
that the second-filed claim would be considered new, and
not subject to the more demanding new and material evi-
dence standard of a request to reopen. Of note, we ex-
plained that by treating different diagnosed disease or
injury claims distinctly, agency decisions are still afforded
the respect of finality without unfairly precluding veterans
from pursuing claims for distinct diseases or injuries. Id.
A year later, the Veterans Court decided Clemons. In
that case, Mr. Clemons filed a benefits claim for mental
disability, naming PTSD and listing myriad symptoms re-
lating to his mental illness. Clemons, 23 Vet. App. at 4.
The RO, and later the Board, denied Mr. Clemons’s claim,
explaining that he lacked a confirmed diagnosis of PTSD,
even though the VA had diagnosed Mr. Clemons with an-
other mental disorder, schizoid personality disorder. Id.
The Veterans Court reversed on appeal, explaining that it
essentially violated principles of fairness for the VA to limit
Mr. Clemons’s claim just to PTSD, because veterans usu-
ally lack medical expertise and are thus not competent to
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8 MURPHY v. WILKIE

diagnose themselves. See id. at 5–6. The Veterans Court
concluded that the VA had to consider whether
Mr. Clemons’s schizoid personality disorder entitled him to
benefits. Id. at 6. In reaching this holding, the Veterans
Court explained that the VA must look to all possible dis-
eases that the veteran could have reasonably expected to
have included in his claim. Id. at 5. Particularly, the Vet-
erans Court explained that in conducting this analysis, the
VA “should construe a claim based on the reasonable ex-
pectations of the non-expert, self-represented claimant and
the evidence developed in processing that claim.” Id.
The Clemons decision also included a discussion of
Boggs:
Boggs stands for the proposition that, if there is a
final agency decision denying a claim based on a
particular diagnosis, and subsequently a new and
different diagnosis is submitted for [the] VA’s con-
sideration, the second diagnosis must be consid-
ered factually distinct from the first and must be
considered to relate to a separate claim.
Id. at 8. Further, the Veterans Court distinguished its
holding in Clemons from concerns in Boggs for finality, by
explaining that no finality concerns were involved in this
case because no previous and final agency decision exists
when the scope of an initial claim is involved, and “the ad-
vantages of treating separate diagnoses as separate claims
in cases to reopen do not exist where separate diagnoses
are rendered for the same reported symptoms during the
initial processing of a claim for benefits.” Id. at 8.
In short, both Boggs and Clemons present principles to
use in determining the scope of a veteran’s claim. Boggs
teaches that when a veteran has two diagnoses with sepa-
rate factual bases, these diagnoses should be treated as two
separate claims, i.e., two requests for benefits that the VA
must consider as independent bases for benefits. Boggs
does not require, however, that these claims maintain
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MURPHY v. WILKIE 9

separate procedural postures—separate claims can be con-
sidered by the VA in lockstep. Clemons, though not binding
on this court, provides valuable guidance as to how the VA
should interpret filings from a veteran: in accordance with
the general pro-veteran canon, Clemons explains that the
VA shall afford lenity to a veteran’s filings that fail to enu-
merate precisely the disabilities included within the
bounds of a claim. It further teaches that this goal is best
accomplished by looking to the veteran’s reasonable expec-
tations in filing the claim and the evidence developed in
processing that claim. Thus, while both Boggs and
Clemons speak to claim scope, they are not inherently con-
flicting and do not address the same inquiries.
The Veterans Court erred when it concluded that
Mr. Murphy’s “reliance on Clemons is misplaced because
Clemons itself draws clear distinctions between determin-
ing the scope of claims in the context of initial claims ver-
sus that of reopened claims.” Murphy, 2019 WL 1029407,
at *5 (citation omitted). Though we do not read Clemons to
require such a holding, insofar as the Veterans Court here,
and the government, see Appellee’s Br. at 16, seek to limit
the holding of Clemons by suggesting that it cannot apply
to requests to reopen in view of Boggs, such a limitation is
improper.
This conclusion aligns with the well-established princi-
ple that the VA is required “to fully and sympathetically
develop the veteran’s claim to its optimum before deciding
it on the merits.” Hodge v. West, 155 F.3d 1356, 1362 (Fed.
Cir. 1998) (quoting H.R. Rep. No. 100-963, at 13 (1988), re-
printed in 1988 U.S.C.C.A.N. 5782, 5795). Our cases have
understood this mandate to mean that “the VA must deter-
mine all potential claims raised by the evidence, applying
all relevant laws and regulations, regardless of [the claim’s
label],” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir.
2001), and we have held that such a requirement extends
to all pro se pleadings and filings submitted to the VA, see
Szemraj v. Principi,, 357 F.3d 1370, 1373 (Fed. Cir. 2004);
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10 MURPHY v. WILKIE

see also Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed.
Cir. 2005); Moody v. Principi, 360 F.3d 1306, 1310 (Fed.
Cir. 2004). Though we have not previously addressed the
particular circumstances at issue here as to reopened
claims, the Clemons lenient-claim-scope rule as applied to
a pro se veteran’s request to reopen falls squarely within
the purview of this mandate. Szemraj, 357 F.3d at 1373
(“Roberson is not limited to its particular facts.”). The gov-
ernment attempts to draw a meaningful distinction be-
tween “the duty to sympathetically read a pro se claimant’s
pleadings [including requests to reopen]” and the applica-
tion of the Clemons rule to determine if a veteran’s “claim
necessarily encompasse[s] other mental health conditions,”
see Appellee’s Br. at 17, but we see none. Clemons is but
one application of the general lenity rule established by
Hodges, Roberson, and their doctrinal progeny.
As we explained in Shea v. Wilkie, the scope of a pro se
claimant’s claim may be determined “indirectly through ex-
amination of evidence to which those documents them-
selves point when sympathetically read.” 926 F.3d 1362,
1368 (Fed. Cir. 2019). Clemons provides further gloss as to
what should inform the VA’s review of a pro se veteran’s
claim filing—a veteran’s reasonable expectations. This
consideration stems directly from the regulation governing
the VA’s identification of and actions in response to re-
quests for benefits. See 38 C.F.R. § 3.155(a)–(b) (2020) (in-
dicating that a veteran’s “desire to file” for benefits is a key
component of filing a claim); § 3.155(d) (explaining that the
VA, in acting upon a claim, considers all issues “reasonably
within the scope” of the claim that may entitle the veteran
to benefits); see also Ingram v. Nicholson, 21 Vet. App. 232,
256 (2007) (“[W]e note that the duty to sympathetically
read must be based on reasonable expectations of a pro se
claimant . . . .”). Thus, the proper inquiry for the VA in re-
viewing a pro se claimant’s request to reopen filing is to
determine what diagnoses, conditions, or illnesses can rea-
sonably be understood as included in the request, this
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MURPHY v. WILKIE 11

inquiry informed by, but not limited to, looking to what the
particular veteran could have reasonably expected to have
included in the filing of such a request and the evidence of
record. Lacoste v. Wilkie, 775 F. App’x 1007, 1012 (Fed.
Cir. 2019) (explaining the role of intent in determining
what conditions should be considered within the scope of a
claim). We emphasize that this inquiry does not require
that the VA embark on a fishing expedition to explore any
potential condition which the record may support as a basis
for benefits, nor does the VA have to attempt to read the
mind of the claimant; the VA need only explore those con-
ditions which may be reasonably considered within the
scope of the claim. See Sellers v. Wilkie, 965 F.3d 1328,
1338 (Fed. Cir. 2020) (holding that a veteran’s claim must
identify, “at least at a high level of generality,” the sick-
ness, disease, or injuries for which compensation is sought
and that 38 C.F.R. § 3.159, that is, the VA’s duty to assist
in developing claims, only applies once the VA “compre-
hends the current condition [up]on which the claim is
based”).
A main concern raised by the government and by the
Veterans Court with respect to applying the Clemons leni-
ent-claim-scope rule to a request to reopen filing is that do-
ing so “ignores important principles regarding the finality
of decisions.” Appellee’s Br. at 16; see also Murphy, 2019
WL 1029407, at *5 (“[W]e must concern ourselves with pre-
serving ‘the finality of agency decisions . . . .’” (quoting
Clemons, 23 Vet. App. at 8)). But we see no reason why
applying the Clemons lenient-claim-scope rule, that is, that
the VA must look to all possible diseases or injuries for
which the veteran could have reasonably expected to have
included in the filing, to a request to reopen in any way
disrupts the finality of agency decisions. To the contrary,
if the VA construes a request to reopen liberally under the
guidance of Roberson and Clemons and determines that it
refers to two distinct diseases or injuries, both of which
have been previously subjects of final agency decisions, the
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12 MURPHY v. WILKIE

VA’s only duty is to consider whether the claimant has pre-
sented new and material evidence as to both respective
claims, as contemplated by 38 U.S.C. § 5108. 4 The govern-
ment concedes that Congress has explicitly provided the
new and material evidence standard as a limited exception
to the rule of finality. Appellee’s Br. at 15.
In sum, the Clemons lenient-claim-scope rule applies to
requests to reopen and Boggs does not require otherwise.
Additionally, we note that the Veterans Court has previ-
ously applied this same understanding. See Radu v.
Shinseki, No. 08-2692, 2010 WL 2706225 (Vet. App. July 8,
2010). Utilizing the same reasoning we espouse today, the
Veterans Court distinguished Clemons from Boggs in ex-
plaining how to construe Mr. Radu’s request to reopen:
In this case, the appellant concedes that the RO de-
nied his claims for compensation for both hearing
loss and tinnitus in 1977. Unlike Mr. Boggs, he is
not arguing that he was not required to submit new
and material evidence to reopen the RO’s 1977 fi-
nal decision regarding tinnitus. Rather, he con-
tends that the scope of his 2002 reopened claim was
broad enough to encompass both tinnitus and hear-
ing loss. The substance of the appellant’s argu-
ment goes to his intent when he filed his reopened
claim in 2002. Clemons, 23 Vet. App. at 5 (‘A claim-
ant’s intent in filing a claim is paramount to con-
struing the breadth of the claim.’). Boggs, which is
limited to the issue of determining when two claims
have been decided on the same factual basis, is not

4 One other statutory exception exists to the finality
of VA decisions—“the grounds of clear and unmistakable
error.” 38 U.S.C. § 5109A. The hypothetical scenario pre-
sented here assumes the absence of any claim from the vet-
eran of clear and unmistakable error. See Boggs, 520 F.3d
at 1334.
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MURPHY v. WILKIE 13

helpful in determining the appellant’s intent at the
time he filed his reopened claim. Accordingly, the
Secretary’s reliance on Boggs is misplaced.
Id. at *8. 5
Turning to the facts of Mr. Murphy’s case, the proper
consideration for the VA is whether, under Clemons,
Mr. Murphy’s request to reopen filing, i.e., the 2012 RTR,
should be interpreted as reasonably encompassing a re-
quest to reopen his schizophrenia claim. The Veterans
Court, in an alternative holding, explained that, after con-
sidering Mr. Murphy’s expectations in filing the 2012 RTR,
it was unconvinced “that he had reasonable expectations of
reopening both the schizophrenia and PTSD claims, at
least not in February 2012.” Murphy, 2019 WL 1029407,
at *5 (citation omitted). The Veterans Court noted in sup-
port of this conclusion that Mr. Murphy’s PTSD and schiz-
ophrenia had been the subjects of at least five other agency
final decisions, each treating the illnesses as separate po-
tential bases for benefits. Id. In light of this history, the
Veterans Court explained that Mr. Murphy demonstrated
an understanding that the conditions would be addressed
separately and, therefore, the VA’s treatment of the condi-
tions separately here was reasonable. See id. Because the
Veterans Court applied the proper legal standard in

5 Similarly, the government conceded at oral argu-
ment that had Mr. Murphy filed a request to reopen that
described that he was seeking reconsideration of his claims
related to his mental health generally, the only reasonable
reading would be that he was seeking to reopen both his
PTSD and his schizophrenia claims. See Oral Arg. at
27:10–28:08. This demonstrates the exact reasoning of
Clemons—when a veteran fails to delineate specifically the
bounds of the claim in a filing, the VA has a duty, particu-
larly for pro se veterans, to construe the filing liberally and
in a pro-veteran manner.
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14 MURPHY v. WILKIE

reaching its alternative holding based on Clemons, we do
not disturb this conclusion. 6 Consequently, Mr. Murphy’s
request to reopen cannot be construed as seeking to reopen
his claim for schizophrenia. The Board, and the Veterans
Court, thus properly determined that it lacked jurisdiction
over Mr. Murphy’s claim for schizophrenia because it was
not before it.
CONCLUSION
We have considered Mr. Murphy’s remaining argu-
ments and are unpersuaded. On the basis of the Veterans
Court alternative holding, we affirm.
AFFIRMED
COSTS
No costs.

6To be clear, we hold only that the Veterans Court ap-
plied the proper legal standard, i.e., Clemons, in reaching
its decision in its alternative holding. The issue of whether
the Clemons inquiry is one of law, of fact, or a question of
law and fact, has not been briefed by the parties and is not
currently before the court.