Case: 22-1504 Document: 54 Page: 1 Filed: 03/27/2024
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ORVILLE K. THOMAS,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2022-1504
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 20-4192, Judge Joseph L. Falvey,
`Jr.
`
`______________________
`
`Decided: March 27, 2024
`______________________
`
`CHRIS ATTIG, Attig Curran Steel PLLC, Little Rock,
`AR, argued for claimant-appellant. Also represented by
`HALEY SMITH.
`
` IGOR HELMAN, Commercial Litigation Branch, Civil Di-
`vision, United States Department of Justice, Washington,
`DC, argued for respondent-appellee. Also represented by
`BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
`MCCARTHY; JULIE HONAN, Y. KEN LEE, DEREK SCADDEN,
`Office of General Counsel, United States Department of
`Veterans Affairs, Washington, DC.
`
`

`

`Case: 22-1504 Document: 54 Page: 2 Filed: 03/27/2024
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`THOMAS v. MCDONOUGH
`
` ______________________
`
`Before LOURIE, REYNA, and CUNNINGHAM, Circuit Judges.
`REYNA, Circuit Judge.
`Mr. Orville Thomas appeals a decision of the U.S.
`Court of Appeals for Veterans Claims. The Veterans Court
`affirmed the Board of Veterans’ Appeals’ denial of an ear-
`lier effective date for Mr. Thomas’ claim of service connec-
`tion for post-traumatic stress disorder. Because the
`Veterans Court applied an improper legal standard when
`reviewing the Board’s decision, we vacate and remand.
`BACKGROUND
`Mr. Thomas served in the U.S. Navy from 1957 to 1964.
`J.A. 1–2. In January 1961, he was an airman on a plane
`that crashed on Midway Island, killing nine people. J.A. 2.
`Of the six passengers who were seated in the plane’s mid-
`section, Mr. Thomas was the sole survivor. J.A. 2. Three
`years later in 1964, Mr. Thomas was honorably discharged
`as unsuitable for service after being diagnosed with an
`emotionally unstable personality. J.A. 211, 275.
`In January 1971, he submitted a claim to the U.S. De-
`partment of Veterans Affairs (“VA”) for service connection
`for his “depressive mania.” J.A. 277. He expressed to the
`VA that, after surviving the plane crash, he was experienc-
`ing ongoing emotional distress and had attempted suicide.
`J.A. 277. The VA regional office obtained Mr. Thomas’
`medical records, which showed that he had been treated for
`emotional problems and was subsequently discharged.
`J.A. 204–75. Based on solely the medical records, the VA
`denied service connection and concluded that an emotion-
`ally unstable personality was not a disability under the
`law. J.A. 203. In reaching this decision, the VA did not
`consider Mr. Thomas’ service department records. Mr.
`Thomas did not appeal this decision.
`
`

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`THOMAS v. MCDONOUGH
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`On June 16, 2014, Mr. Thomas filed a request to reopen
`his 1971 claim. J.A. 163–202, 116–50. This time, he sub-
`mitted service department records that were not before the
`VA in 1971. J.A. 169–202, 116–50. These service depart-
`ment records include, inter alia, information about the
`1961 plane crash, the changes in Mr. Thomas’ personality
`before and after the crash, and evaluations of Mr. Thomas’
`performance in service. E.g., J.A. 116–50, 169–91.
`In November 2014, the VA granted Mr. Thomas service
`connection for post-traumatic stress disorder (“PTSD”),
`with an effective date of June 16, 2014. J.A. 106–12. The
`VA based its decision on a review of the evidence, which
`included (1) the service department records Mr. Thomas
`submitted in June 2014 and (2) the VA’s PTSD examina-
`tion of Mr. Thomas, which diagnosed him with the disor-
`der. J.A. 113–14.
`Mr. Thomas filed a timely Notice of Disagreement,
`seeking an earlier effective date. J.A. 104–05. The VA is-
`sued a Statement of the Case which, while increasing the
`disability rating for his PTSD, continued to deny an effec-
`tive date earlier than June 2014. J.A. 71–99. The VA
`acknowledged that Mr. Thomas had submitted his service
`department records, and that he had argued that under 38
`C.F.R. § 3.156(c), those records showed entitlement to an
`earlier effective date.1 J.A. 4, 99.
`
`
`
`1 Under 38 C.F.R. § 3.156(c)(1), if the “VA receives or
`associates with the claims file relevant official service de-
`partment records that existed and had not been associated
`with the claims file when VA first decided the claim, VA
`will reconsider the claim.” Additionally, “[a]n award made
`based all or in part” on these service department records
`“is effective on the date entitlement arose or the date VA
`received the previously decided claim, whichever is later.”
`
`
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`THOMAS v. MCDONOUGH
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`The VA found that the service department records
`would not have changed the 1971 denial of service connec-
`tion because they did not counter the determination that
`Mr. Thomas’ in-service psychiatric problems were due to
`an “emotionally unstable personality,” which was not con-
`sidered a disability for VA compensation purposes. J.A. 99.
`The VA also concluded that the service department records
`“were not a factor in the grant of benefits at this time.” J.A.
`99.
`
`Mr. Thomas appealed to the Board of Veterans’ Ap-
`peals (“Board”). J.A. 68–69. The Board agreed with the
`VA’s denial of an earlier effective date for the grant of ser-
`vice connection for PTSD. J.A. 54–67. The Board found no
`evidence of an unadjudicated claim for service connection
`for PTSD between the March 1971 rating decision and
`June 2014 that might justify an earlier effective date.
`J.A. 58–59. The Board decision did not address Section
`3.156(c) or Mr. Thomas’ newly added service department
`records. J.A. 54–67. Mr. Thomas appealed the Board’s de-
`cision to the U.S. Court of Appeals for Veterans Claims
`(“Veterans Court”).
`Before the Veterans Court, Mr. Thomas argued that
`the Board violated its statutory duty under 38 U.S.C.
`§ 7104(d)(1) to provide a written statement of its findings,
`and its reasons and bases for those findings, concerning “all
`material issues of fact and law presented on the record.”
`J.A. 49 (citing 38 U.S.C. § 7104(d)(1)). According to Mr.
`Thomas, this statutory duty required the Board to consider
`
`
`38 U.S.C. § 3.156(c)(3). “In other words, § 3.156(c) serves
`to place a veteran in the position he would have been had
`the VA considered the relevant service department record
`before the disposition of his earlier claim.” Blubaugh v.
`McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014).
`
`
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`THOMAS v. MCDONOUGH
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`his arguments concerning Section 3.156(c), which applied
`to the facts of his case. Mr. Thomas also argued this stat-
`utory duty required the Board to consider his service de-
`partment records, which had existed at the time of the VA’s
`original denial in 1971 but had not yet been associated with
`his claims file. Mr. Thomas noted that these service de-
`partment records served as a partial basis for his eventual
`grant of PTSD in November 2014. Finally, Mr. Thomas ar-
`gued that the Board’s errors prejudiced him. According to
`Mr. Thomas, had the Board properly considered that his
`service department records that were not associated with
`his claims file until 2014, the Board likely would not have
`concluded that “June 16, 2014, is the earliest possible ef-
`fective date for the grant of service connection for PTSD.”
`J.A. 52 (quoting J.A. 59).
`The Veterans Court affirmed the Board’s decision. The
`Veterans Court determined that the Board did not err in
`failing to discuss Section 3.156(c)(1) because this regula-
`tion only applies to “relevant” service records. The Veter-
`ans Court noted that Mr. Thomas “offer[ed] no argument
`that his service records were in any way relevant” to the
`VA’s denial of his 1971 claim. For this reason, the VA con-
`cluded that Mr. Thomas had not shown that the Board
`committed prejudicial error in failing to discuss Section
`3.156(c)(1).
`The Veterans Court also determined that the Board did
`not err in failing to discuss Mr. Thomas’ service depart-
`ment records. The Veterans Court explained that “Mr.
`Thomas has neither shown nor argued that the service de-
`partment records . . . were ‘favorable’ evidence and that
`the Board was thus required to discuss them.” J.A. 5.
`Mr. Thomas appeals. We have jurisdiction under 38
`U.S.C. § 7292(c).
`
`

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`THOMAS v. MCDONOUGH
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`STANDARD OF REVIEW
`Our jurisdiction to review decisions of the Veterans
`Court is limited by statute. Gazelle v. Shulkin, 868 F.3d
`1006, 1009 (Fed. Cir. 2017). This court may review legal
`questions, including the validity of any statute or regula-
`tion or any interpretation thereof. 38 U.S.C. § 7292(c).
`This court may not, however, review factual determina-
`tions or application of law to fact, except to the extent an
`appeal presents a constitutional issue. Id. § 7292(d)(2).
`DISCUSSION
`Mr. Thomas argues that the Veterans Court errone-
`ously applied a more stringent legal standard than what is
`required under 38 U.S.C. § 7104. Section 7104(d) governs
`the Board’s statutory duty to consider “applicable” regula-
`tions and provide a written statement on “all material is-
`sues of fact and law.” Specifically, Mr. Thomas argues that
`the Veterans Court improperly read into this provision a
`new and limiting requirement—that the Board need only
`address “favorable” or “relevant” evidence in its written de-
`cision. We agree with Mr. Thomas and thus vacate the Vet-
`erans Court’s decision and remand.
`When deciding a veteran’s appeal, the Board’s decision
`“shall include” a “written statement of the Board’s findings
`and conclusions, and the reasons or bases for those findings
`and conclusions, on all material issues of fact and law pre-
`sented on the record.” 38 U.S.C § 7104(d) (emphasis
`added). At the Veterans Court, this provision means that
`the Board must address in its written statement all regu-
`lations that are “made potentially applicable through the
`assertions and issues raised in the record.” Schafrath v.
`Derwinski, 1 Vet. App. 589, 593 (1991). We see no reason
`to depart from the Veterans Court’s “potentially applica-
`ble” standard, which supports 38 U.S.C § 7104(d)’s goal of
`providing veterans with a fulsome and clear decision of
`
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`THOMAS v. MCDONOUGH
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`their claims.2 In doing so, we are not eliminating or even
`modifying the Veterans Court’s obligation to place the bur-
`den of proof for showing prejudicial error on appeal on the
`appellant, as the Veterans Court here correctly did. See
`J.A. 4–5; 38 U.S.C. § 7261(b)(2).
`Here, Mr. Thomas undisputedly raised Section 3.156(c)
`and his service department records before the Board. The
`Board did not address these two points in its decision. The
`Veterans Court recognized the Board’s duty under
`38 U.S.C. § 7104 to provide a written determination with
`adequate reasons or bases for its determination. The Vet-
`erans Court also recognized that this duty requires the
`Board to “address all regulations made potentially applica-
`ble by assertions and issues raised in the record.” J.A. 4.
`The Veterans Court, however, excused the Board’s silence
`because Mr. Thomas did not allegedly argue the “rele-
`vance” of Section 3.156(c) or his service department records
`in his briefing on appeal. J.A. 4. The Veterans Court also
`faulted Mr. Thomas for failing to show how his service de-
`partment records were “favorable” evidence. J.A. 5. These
`
`
`
`2 Section 7104(d)(1) was “designed to promote the de-
`velopment of a record of the agency proceedings that would
`permit a reviewing court to understand and evaluate the
`proceedings as part of its review.” S. Rep. No. 100–418, at
`37–38 (1988). The Board’s required statement of reasons
`or bases would assist veterans to “understand the Board’s
`response to the various arguments advanced by the [vet-
`eran],” and use this understanding “to make an informed
`decision on whether or not to request court review.” Id. at
`38. “[B]are conclusory statement[s]” in Board decisions
`would cut against the purpose of Section 7104(d)(1). Jen-
`nings v. Mansfield, 509 F.3d 1362, 1366 (Fed. Cir. 2007)
`(quoting Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990)).
`
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`THOMAS v. MCDONOUGH
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`statements indicate that the Veterans Court erroneously
`applied a standard considerably more stringent than re-
`quired under 38 U.S.C. § 7104. As explained above, Sec-
`tion 7104 requires the Board to consider all “potentially
`applicable” regulations raised in the record, not merely
`those that the veteran has shown to be relevant or favora-
`ble in his briefing before the Board.
`The government argues that we lack jurisdiction over
`this appeal because the Veterans Court’s decision was
`merely a “[s]traightforward [a]pplication [o]f Kisor II” to
`the facts of Mr. Thomas’ appeal. Appellee Br. 14. The gov-
`ernment’s argument is unavailing. In Kisor II, this court
`interpreted the meaning of a “relevant” service department
`record under 38 C.F.R. § 3.156(c). Kisor v. McDonough, 995
`F.3d 1316, 1322 (Fed. Cir. 2021). As discussed supra, Sec-
`tion 3.156(c) provides that the VA may reconsider a previ-
`ously decided claim and retroactively set an earlier
`effective date when “relevant” service department records
`are associated with the claims file. Here, the Board never
`made a finding of fact as to the relevancy of Mr. Thomas’
`service department records to his denied 1971 claim, as re-
`quired under Section 3.156(c) and Kisor II. Because the
`Board has not made this factual determination in the first
`instance, the Veterans Court is statutorily prohibited from
`doing so. 38 U.S.C. § 7261(c); Deloach v. Shinseki, 704 F.3d
`1370, 1380 (Fed. Cir. 2013). Thus, contrary to the govern-
`ment’s position, the Veterans Court’s decision cannot be
`characterized as an application of Kisor II to Mr. Thomas’
`case.
`On remand, the Veterans Court is instructed to re-
`mand the case to the Board to provide an adequate written
`statement of its reasons and bases concerning Mr. Thomas’
`claim for an earlier effective date for his PTSD. The Board
`must consider Mr. Thomas’ arguments concerning Section
`3.156(c) and his service department records under the ap-
`propriate legal standard contained in 38 U.S.C. § 7104(d).
`
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`CONCLUSION
`We have considered the government’s remaining argu-
`ments and find them unpersuasive. We vacate the decision
`of the Veterans Court and remand for further action con-
`sistent with this decision.
`VACATED AND REMANDED
`COSTS
`
`Costs to Mr. Thomas.
`
`