COSTELLO v. WILKIE , No. 19-2317 (Fed. Cir. 2020)

 Annotate this Case
Download PDF
Case: 19-2317 Document: 42 Page: 1 Filed: 12/23/2020 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ EUGENE COSTELLO, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2019-2317 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 18-3462, Judge Amanda L. Meredith. ______________________ Decided: December 23, 2020 ______________________ KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant. BORISLAV KUSHNIR, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT EDWARD KIRSCHMAN, JR.; MARTIE ADELMAN, Y. Case: 19-2317 Document: 42 Page: 2 2 Filed: 12/23/2020 COSTELLO v. WILKIE KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________ Before WALLACH, TARANTO, and CHEN, Circuit Judges. WALLACH, Circuit Judge. Appellant, Eugene Costello, appeals a decision of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals that denied Mr. Costello’s request to revise a December 1965 rating decision. Costello v. Wilkie, No. 18-3462, 2019 WL 2261275, at *4 (Vet. App. May 28, 2019); see J.A. 16 (Judgment); see also J.A. 27 (1965 Rating Decision), 86–104 (Board Decision). Mr. Costello failed to present to the Veterans Court the sole issue he now raises on appeal— namely, “[t]he correct interpretation of the phrase ‘recognized as symptomatic of brain trauma’” as used in Diagnostic Code 8045 of 38 C.F.R. § 4.124a (1965). Appellant’s Br. 11. Compare id. at 1, 3–11, with J.A. 105–16 (Mr. Costello’s Brief to the Veterans Court). See In re DBC, 545 F.3d 1373, 1378 (Fed. Cir. 2008) (“It is well-established that a party generally may not challenge an agency decision on a basis that was not presented to the agency.”). Accordingly, Mr. Costello’s appeal is DISMISSED

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.