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        NOTE: This disposition is nonprecedential.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   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
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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
