Case: 22-1869 Document: 40 Page: 1 Filed: 03/08/2024
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
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`HERBIE D. VEST,
`Claimant-Appellant
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`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2022-1869
`______________________
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`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 21-792, Judge Coral Wong Pietsch.
`______________________
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`Decided: March 8, 2024
`______________________
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`AMANDA SUNDAY, GloverLuck, LLP, Dallas, TX, argued
`for claimant-appellant. Also represented by ADAM R. LUCK.
`
` DANIEL FALKNOR, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, argued for respondent-appellee. Also represented
`by BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
`MCCARTHY; CHRISTINA LYNN GREGG, Y. KEN LEE, Office of
`General Counsel, United States Department of Veterans
`Affairs, Washington, DC.
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`

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`Case: 22-1869 Document: 40 Page: 2 Filed: 03/08/2024
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`VEST v. MCDONOUGH
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` ______________________
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`Before DYK, CLEVENGER, and CHEN, Circuit Judges.
`CLEVENGER, Circuit Judge
`Herbie D. Vest (“Vest”) appeals from the final decision
`of the United States Court of Appeals for Veterans Claims
`(“Veterans Court”) which dismissed Vest’s appeal for lack
`of jurisdiction.
`
`I. BACKGROUND
`Vest served on active duty in the United States Army
`from October 6, 1966, to May 24, 1971. J.A. 11. In May
`1971, Vest filed a claim for service connection for hearing
`loss and “ringing in the ears.” J.A. 12. In a September 15,
`1971, rating decision, the Veterans Administration Re-
`gional Office (“RO”) granted service connection for bilateral
`hearing loss and tinnitus, each rated at 0%. J.A. 14–15.
`Subsequently, in a December 17, 1971, decision, the RO de-
`nied a request for an increased rating for bilateral hearing
`loss. J.A. 16.
`Vest sent a letter which was received by the RO on
`March 10, 1972, (“March 1972 Letter”) which said that “[i]n
`your letter, dated December 17, 1971 you stated that my
`bilateral hearing loss continues to 0% . . . . I believe that
`there may be an error.” J.A. 17. His letter also said that
`he had “constant ringing in [his] ears.” J.A. 17.
`On January 28, 2016, Vest filed a separate claim for
`compensation for Meniere’s disease and “ears-ringing.”
`J.A. 23, 25. In a July 14, 2016, rating decision, the RO
`granted service connection for Vest’s “[M]eniere[’]s disease
`with bilateral hearing loss, tinnitus, and vertigo (claimed
`as ears ringing and dizziness),” with a 60% disability rating
`effective December 10, 2015. J.A. 36–37, 109. Vest dis-
`puted this rating, and on November 23, 2018, the RO con-
`tinued the rating at 60% for Meniere’s disease. J.A. 53–54.
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`VEST v. MCDONOUGH
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`On April 8, 2019, Vest sent a letter to the Department
`of Veterans Affairs (“VA”) which argued that his March
`1972 Letter was “disagreeing with the December 17, 1971
`Decision and expressing his belief that it contained an er-
`ror.” J.A. 61. Therefore, Vest argued that the March 1972
`Letter “to the VA was a NOD under the applicable regula-
`tions at the time, as it was a written communication ex-
`pressing dissatisfaction and disagreement with the VA’s
`noncompensable evaluation for his tinnitus.” J.A. 61. Vest
`further argued that “[b]ecause [the] VA did not address Mr.
`Vest’s NOD, it remains pending.” J.A. 61. On February 4,
`2020, the RO responded that Vest’s letter “was not ac-
`cepted as a Notice of Disagreement since you did not state
`that you were disagreeing with our decision.” J.A. 63.
`In response, on June 4, 2020, Vest filed an NOD with a
`VA Form 10182 (“2020 NOD”) limited to “[w]hether the
`Veteran’s March 10, 1972 letter constituted a NOD and
`whether the NOD remains pending.” J.A. 65.
`On appeal, the Board of Veterans’ Appeals (“Board”)
`found that the March 1972 Letter “expressed dissatisfac-
`tion only with a December 1971 administrative decision,
`which denied an increased rating for a hearing loss disabil-
`ity but did not adjudicate entitlement to an increased rat-
`ing for tinnitus.” J.A. 66. The Board further explained that
`“although the Veteran discussed tinnitus in his letter and
`it was received within one year of the September 1971 rat-
`ing decision, there was no expressed disagreement or dis-
`satisfaction of a decision by the [RO] regarding tinnitus,
`and the NOD is limited to entitlement to an increased rat-
`ing for a hearing loss disability.” J.A. 69.
`Vest’s appeal of the Board’s October 13, 2020, decision
`did not challenge the Board’s decision that he never had
`filed an NOD with his May 1971 tinnitus claim. Instead,
`Vest limited his appeal to whether his tinnitus claim was
`still pending because he did not receive a notice of appeal
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`VEST v. MCDONOUGH
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`rights with respect to the September 1971 rating decision.
`J.A. 79–81, 101–105.
`The Veterans Court dismissed the appeal, holding that
`it did not have “jurisdiction to address th[e] question of de-
`fective notice.” Vest v. McDonough, No. 21-0792, 2022 WL
`538201, at *4 (Vet. App. Feb. 23, 2022). The Veterans
`Court noted that Vest did not argue that “he had submitted
`an NOD with the September 1971 rating decision concern-
`ing tinnitus, and he does not challenge the Board’s deter-
`minations that the March 1972 NOD related only to the
`December 1971 decision denying an increased rating for
`hearing loss and that the March 1972 filing was not an
`NOD with the September 1971 rating decision concerning
`tinnitus.” Id. Therefore, the Veterans Court held that Vest
`“abandoned the issue [of] whether the March 1972 filing
`was an NOD with a VA initial decision concerning tinni-
`tus.” Id.
`The Veterans Court entered judgment on March 17,
`2022. Vest timely appealed the Veterans Court’s decision
`to this court, and we have jurisdiction under 38 U.S.C.
`§ 7292(a).
`
`II. DISCUSSION
`This court has jurisdiction to review “the decision [of
`the Veterans Court] with respect to the validity of a deci-
`sion of the [Veterans] Court on a rule of law or of any stat-
`ute or regulation . . . or any interpretation thereof (other
`than a determination as to a factual matter) that was relied
`on by the [Veterans] Court in making the decision.” 38
`U.S.C. § 7292(a). Whether the Veterans Court has juris-
`diction is a matter of statutory interpretation that this
`court reviews de novo. Andre v. Principi, 301 F.3d 1354,
`1358 (Fed. Cir. 2002) (“We review legal issues, including
`whether the Veterans Court properly declined to assert ju-
`risdiction . . . without deference.”).
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`With respect to RO decisions subject to review by the
`Board, “[a]ppellate review shall be initiated by the filing of
`a[n NOD].” 38 U.S.C. § 7105(a); Ledford v. West, 136 F.3d
`776, 779 (Fed. Cir. 1998) (“An NOD is required to initiate
`the appellate review process . . . .”). “[NODs] shall be in
`writing, [and] shall identify the specific determination with
`which
`the
`claimant disagrees . . . .”
` 38 U.S.C.
`§ 7105(b)(2)(A).
`An NOD is the instrument that declares a veteran’s in-
`tention to seek appellate review of a decision and initiates
`the Board’s jurisdiction over a veteran’s claim. See Hamil-
`ton v. Brown, 39 F.3d 1574, 1575 (Fed. Cir. 1994) (“The
`[VA] . . . long utilized a document called the [NOD] as the
`vehicle by which a veteran, aggrieved by the initial deter-
`mination of a [VA] office, would announce the intention to
`administratively appeal that initial determination.”); Cox
`v. West, 149 F.3d 1360, 1365 (Fed. Cir. 1998) (“[T]here
`[was] no jurisdiction-conferring NOD . . . that would have
`supplied the Board with jurisdiction over [the] claim”);
`Buckley v. West, 12 Vet. App. 76, 82 (1998) (“Just as the
`[Veterans] Court’s jurisdiction is dependent on a jurisdic-
`tion-conferring NOD, the Board’s jurisdiction, too, derives
`from a claimant’s NOD.”).
`The Veterans Court has jurisdiction to review decisions
`of the Board. 38 U.S.C. § 7252(a). A Board decision results
`from appellate review by the Board of agency action after
`the filing of a valid NOD. When, as in this case, it is estab-
`lished that a valid NOD has not been filed with respect to
`a veteran’s claim, and as a result the Board has not issued
`a decision concerning the claim, the Veterans Court lacks
`jurisdiction over the claim.
`Ledford clearly governs this appeal. In that case, the
`veteran initially was awarded a 100% disability rating
`based on individual unemployability. Ledford, 136 F.3d at
`777. Subsequently, that rating was terminated and
`changed to a schedular rating that was for a time reduced
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`to 70% before being increased back to 100% as a result of
`two NODs filed by the veteran which contested the reduc-
`tion of the schedular rating. Id. The veteran later sought
`an earlier effective for his benefits on the ground that the
`termination of his individual unemployability benefits was
`unlawful. Id. at 778. The RO and the Board denied his
`earlier effective date claim, and the Veterans Court held
`that it lacked jurisdiction over the veteran’s appeal. Id.
`Because the veteran never filed an NOD contesting the va-
`lidity of termination of his individual unemployability ben-
`efits, and the Board never issued a decision concerning that
`termination, the Veterans Court lacked jurisdiction over
`the veteran’s claim. Id. at 779 (“In short, there was no
`Board decision for the [Veterans Court] to review concern-
`ing the propriety of the termination, and thus the court had
`no jurisdiction to consider that issue.”). The decision in
`Ledford held that jurisdiction in the Veterans Court was
`additionally lacking because the veteran could point to no
`NOD expressing disagreement with the conversion of his
`unemployability rating to a schedular one. Id. (“An NOD
`is required to initiate the appellate review process, 38
`U.S.C. § 7105(a) . . . .”).
`In this case, Vest acknowledges that the jurisdiction of
`the Veterans Court depends on a valid NOD and a decision
`by the Board on the matter in question. Appellant’s Open-
`ing Br. at 16.
`Despite this acknowledgement and the absence of any
`challenge to the Board’s holding that no NOD exists as to
`his 1971 tinnitus claim, Vest argues that the Veterans
`Court should have exercised its discretion to consider his
`claim that the 1971 tinnitus claim remains open because of
`a failure of the agency to provide him with notice of appeal
`rights at the time that claim was initially denied. He also
`claims a basis for jurisdiction in the Veterans Court under
`AG v. Peake, 536 F.3d 1306 (Fed. Cir. 2008), a case in which
`this court vacated a decision of the Veterans Court and re-
`manded the issue of whether the veteran’s claim remained
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`VEST v. MCDONOUGH
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`open due to the failure of the agency to give notice of appeal
`rights. Id. at 1310–11.
`Vest is correct in arguing that the Veterans Court has
`a measure of discretion to consider arguments raised to it
`for the first time, (see, e.g., Maggitt v. West, 202 F.3d 1370,
`1378 (Fed. Cir. 2000)) such as his argument that he was
`denied appeal rights by the RO when his tinnitus claim was
`rejected long ago. But such discretion can only be exercised
`when the Veterans Court has jurisdiction over a veteran’s
`underlying claim. Here, Vest abandoned his opportunity
`to show that his March 1972 Letter was a sufficient NOD
`for his tinnitus claim and failed to show a Board decision
`on his claim that the Veterans Court could review, thus un-
`dermining the jurisdiction for his appeal to the Veterans
`Court. And on appeal, Vest argues that his April 2019 let-
`ter was always about obtaining an earlier effective date for
`his tinnitus claim and seems to suggest that his 2020 NOD
`constituted an NOD for his tinnitus claim. Appellant’s
`Opening Br. at 10; Oral Arg. at 7:46–8:40. Both the April
`2019 letter and the 2020 NOD, however, were limited to
`the issue of whether Vest’s March 1972 letter constituted
`an NOD and did not, in themselves, express disagreement
`with his tinnitus claim. AG v. Peake did provide relief
`where the agency had failed to provide notice of appeal
`rights to the veteran, but in that case the veteran had filed
`an NOD vesting the appellate process with jurisdiction
`over the subject matter of his claim. Vest’s lack of an NOD
`over his 1971 tinnitus claim distinguishes him from the
`veteran in AG v. Peake. Even if the failure to provide notice
`of appeal rights extended the time for filing an NOD, the
`fact is that Vest never filed an NOD.
`After some discussion at oral argument about the pre-
`cise contours of the government’s opposition to Vest’s ap-
`peal here, the government argues that the absence of an
`NOD on Vest’s 1971 tinnitus claim and the absence of any
`decision by the Board on that matter deprive the Veterans
`Court of jurisdiction over this appeal. Oral Arg. at 24:06–
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`VEST v. MCDONOUGH
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`24:22. Vest did not object to the refinement of the govern-
`ment’s opposition at oral argument. We agree with the gov-
`ernment that absence of an NOD on the 1971 tinnitus
`claim and the attendant lack of any decision by the Board
`on that claim defeat jurisdiction in the Veterans Court.
`III. CONCLUSION
`After full review of the record and Vest’s arguments,
`we affirm the dismissal of the appeal by the Veterans Court
`because of lack of jurisdiction.
`AFFIRMED
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`No costs.
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