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Michael R. Geri v. Eric K. Shinseki

February 2, 2011

MICHAEL R. GERI, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-1224, Judge Lawrence B. Hagel.

The opinion of the court was delivered by: Prost, Circuit Judge.

NOTE: This disposition is nonprecedential.

Decided: February 2, 2011

Before GAJARSA, DYK, and PROST, Circuit Judges.

Appellant Michael R. Geri appeals from a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming the Board of Veterans' Appeals' ("Board's") denial of his request for an increased disability rating for epilepsy and headaches. Geri v. Shinseki, No. 08-1224, 2009 WL 3720581 (Vet. App. Nov. 9, 2009) ("Veterans Court Decision"). Because the Veterans Court correctly interpreted its jurisdictional statute in concluding that Mr. Geri's objections to the Board's decision were beyond the jurisdiction of the Veterans Court, we affirm.

BACKGROUND

Mr. Geri served on active duty in the U.S. Army from June 1977 until February 1984. In July 1984, Mr. Geri filed claims for disability benefits for several conditions, including grand mal epilepsy, headaches, and atypical personality disorder. In September 1984, the Department of Veterans Affairs Regional Office ("RO") granted Mr. Geri a 100% disability rating for service-connected grand mal epilepsy and a 30% disability rating for headaches, effective from Mr. Geri's discharge from the service in February 1984. In December 1986, the RO reduced Mr. Geri's disability ratings for epilepsy and headaches to 10% for each disability ("1986 RO Disability Ratings Reduction"). Mr. Geri appealed these reductions to the Board. In September 1991, the Board granted an increase in Mr. Geri's disability rating for headaches to 30%, effective from the time of the 1986 RO Disability Ratings Reduction, but denied an increase in his disability rating in excess of 10% for epilepsy ("September 1991 Board Decision"). Mr. Geri did not appeal the September 1991 Board Decision.

In June 1999, Mr. Geri sought to reopen his claims for disability benefits for epilepsy and headaches based on increased symptom severity. In June 2000, Mr. Geri filed a separate claim for total disability based on individual unemployability ("TDIU") for a psychiatric disorder. In July 2000, the RO denied Mr. Geri an increased disability rating for epilepsy and headaches as well as his TDIU claim.

In December 2005, the RO granted Mr. Geri a 100% disability rating for dementia, effective from June 2000, and concluded that this rating rendered moot Mr. Geri's TDIU claim. In a separate Supplemental Statement of the Case, also issued in December 2005, the RO found insufficient evidence to increase Mr. Geri's disability ratings for epilepsy and headaches.

In December 2005, Mr. Geri filed an appeal to the Board, requesting that the Board (1) vacate or reverse the September 1991 Board Decision or (2) reverse the 1986 RO Disability Ratings Reduction. The Board certified Mr. Geri's appeal, defining the issues on appeal as whether Mr. Geri was entitled to an increased disability rating for epilepsy and headaches. In August 2007, the Board issued a decision on Mr. Geri's appeal ("August 2007 Board Decision"). The Board found that the Department of Veterans Affairs ("VA") had complied with its duty to notify and assist Mr. Geri. The Board determined that the only issues on appeal were Mr. Geri's entitlement to a disability rating in excess of 10% for epilepsy and in excess of 30% for headaches. Upon analysis, the Board denied Mr. Geri an increased disability rating for both epilepsy and headaches.

Mr. Geri appealed the August 2007 Board Decision to the Veterans Court. On appeal, Mr. Geri argued (1) that he submitted an informal claim for TDIU and for disability benefits for a psychological disorder when he initially filed for benefits in 1984 and the Board erred by failing to address the effective date of his benefits based on this informal claim and (2) the Board erred in concluding that the VA satisfied its duty to assist in developing his claim for a psychological disorder because the VA did not obtain a medical examination in 1984. Veterans Court Decision at *2.

On November 9, 2009, the Veterans Court affirmed the August 2007 Board Decision. Id. at *1, *3. First, the Veterans Court determined that it lacked jurisdiction to address Mr. Geri's argument regarding his alleged informal claims for TDIU and for disability benefits for a psychological disorder, because Mr. Geri did not raise the issue in his appeal before the Board and thus the August 2007 Board Decision did not address the issue. Id. at *2. Further, the Veterans Court concluded that it did not have jurisdiction to address Mr. Geri's duty to assist argument, because the argument was unrelated to the only claims Mr. Geri raised before the Board, namely his claims for disability benefits for epilepsy and headaches. See id. at *2-3. Mr. Geri timely appealed to this court. We have jurisdiction under 38 U.S.C. § 7292(c).

DISCUSSION

"Our jurisdiction to review the decisions of the [Veterans Court] is limited by ...


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