Veteranclaims’s Blog

April 2, 2021

Single Judge Application; As the Court explained in Clemons, the U.S. Court of Appeals for the Federal Circuit’s decision in Boggs does not stand for the proposition that each separate diagnosis is always a separate claim. Clemons, 23 Vet.App. at 8-9. Instead, the proper scope of a claim must be determined by the lay veteran’s intent. Id. at 5;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1283
CONRADO D. DEGUMA, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

LANCE, Judge: The appellant, Conrado D. DeGuma, pro se, appeals a February 1, 2007,
Board of Veterans’ Appeals (Board) decision denying his claim for service connection for
“rheumatoid arthritis.” Record (R.) at 1-8. Single-judge disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow,
the Court will vacate the February 1, 2007, decision and remand the matter for further proceedings
consistent with this decision.
In the decision on appeal, the Board denied the appellant’s claim because there is no present
diagnosis of rheumatoid arthritis, no evidence that the appellant was diagnosed with rheumatoid
arthritis within a year of his service, and no evidence linking any diagnosis of rheumatoid arthritis
to service. R. at. 5-6. In the appellant’s informal brief, he directs the Court’s attention to his current
diagnosis of osteoarthritis and asks that his claim be granted. Appellant’s Informal Brief at 1.
However, he does not make any argument that there is evidence that his current condition is related
to service. Nonetheless, the Secretary concedes that the Board erred in failing to discuss whether
the appellant is entitled to service connection for osteoarthritis. Secretary’s Corrected Brief at 8-10.
2
This case is indistinguishable from the Court’s recent decision in Clemons v. Shinseki,
23 Vet.App. 1 (2009). The Secretary’s request for a remand is legally inconsistent with his assertion
that the appellant’s request for service connection for osteoarthritis is a separate claim under Boggs
v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), because it is a different diagnosis. As in Clemons, if
compensation for osteoarthritis were truly a separate claim, then the Court would lack jurisdiction
over it because the Board decision on appeal addresses only rheumatoid arthritis. See 23 Vet.App.
at 2-3 (citing Jarrell v. Nicholson, 20 Vet.App. 326 331 (2006) (en banc), and King v. Nicholson,
19 Vet.App. 406, 411 (2006)). As the Court explained in Clemons, the U.S. Court of Appeals for
the Federal Circuit’s decision in Boggs does not stand for the proposition that each separate diagnosis
is always a separate claim. Clemons, 23 Vet.App. at 8-9. Instead, the proper scope of a claim must
be determined by the lay veteran’s intent. Id. at 5
.
In this case, as the Secretary demonstrates in his brief, the appellant’s entitlement to service
connection for arthritis—whether rheumatoid or osteoarthritis—was raised in his June 2002
application for benefits (R. at. 54), decided by the RO in its September 2002 decision (R. at. 78-84),
and appealed by the appellant in his February 2002 Notice of Disagreement (R. at. 93). Hence, the
appellant’s claim is properly considered as one for service connection for arthritis, regardless of the
specific type. Therefore, the Court has jurisdiction to remand this claim to the Board to address the
evidence of osteoarthritis even though it erred by failing to discuss this theory of entitlement. See
Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (a Board decision is final as to all
possible theories of entitlement, not just theories explicitly addressed).
Accordingly, the Court will vacate the February 1, 2007, Board decision based upon the
Secretary’s concession of error. On remand, the appellant is free to submit additional evidence and
argument, including the arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112
(requiring Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).
3
After consideration of the appellant’s and the Secretary’s briefs, and a review of the record,
the Board’s February 1, 2007, decision is VACATED and the matter is REMANDED to the Board
for further proceedings consistent with this decision.
DATED: August 17, 2009
Copies to:
Conrado D. DeGuma
VA General Counsel (027)

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