COMER v. PEAKE

No. 2008-7013.

552 F.3d 1362 (2009)

Leroy COMER, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

United States Court of Appeals, Federal Circuit.

January 16, 2009.


Attorney(s) appearing for the Case

Edward R. Reines, Weil, Gotshal & Manges LLP, of Redwood Shores, California, argued for claimant-appellant. With him on the brief was Dion D. Messer, of Austin, Texas.

Martin F. Hockey, Jr., Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC argued for respondent-appellee. With him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, Todd M. Hughes, Jr., Deputy Director, and David F. D'Alessandris, Attorney. Of counsel on the brief were Michael J. Timininski, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office of the General Counsel, Department of Veterans Affairs, of Washington, DC.

Before MAYER, LOURIE, and GAJARSA, Circuit Judges.


MAYER, Circuit Judge.

Leroy Comer appeals the judgment of the United States Court of Appeals for Veterans Claims which held that he had not properly raised the issue of whether he was entitled to an earlier effective date for total disability based on individual unemployability ("TDIU") benefits. See Comer v. Nicholoson, No. 05-1462, 2007 WL 2034306, 2007 U.S.App. Vet. Claims LEXIS 1083 (Vet.App. July 6, 2007) (

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