Case: 22-2081 Document: 14 Page: 1 Filed: 11/09/2022
`NOTE: This disposition is nonprecedential.
`United States Court of Appeals
`for the Federal Circuit
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 21-665, Judge Michael P. Allen.
`Decided: November 9, 2022
`JESUS RODRIGUEZ, JR., San Antonio, TX, pro se.
` LIRIDONA SINANI, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, for respondent-appellee. Also represented by
`Before STOLL, SCHALL, and STARK, Circuit Judges.


`Case: 22-2081 Document: 14 Page: 2 Filed: 11/09/2022
`Jesus Rodriguez, Jr. appeals the decision of the United
`States Court of Appeals for Veterans Claims affirming the
`decision of the Board of Veterans’ Appeals denying (1) a re-
`quest to reopen a previously denied claim for service con-
`nection and (2) claims for service connection for various
`other conditions. Rodriguez v. McDonough, No. 21-0665,
`2022 WL 557291 (Vet. App. Feb. 24, 2022). We affirm-in-
`part and dismiss-in-part.
`Mr. Rodriguez served in the United States Marine
`Corps from March 1969 to March 1973 and from Febru-
`ary 1981 to February 1984. His awards and decorations for
`service include a Vietnam Cross of Gallantry.
`In August 2013, a Regional Office (RO) denied Mr. Ro-
`driguez’s claim for service connection for hemorrhoids.
`Appx. 14.1 Mr. Rodriguez did not appeal, and the decision
`became final. On March 31, 2017, the VA received service
`department records from Mr. Rodriguez’s active service.
`Rodriguez v. McDonough, No. 20-7138, 2021 WL 6143626,
`at *4 (Vet. App. Dec. 30, 2021). In May 2017, Mr. Rodri-
`guez requested that the VA reopen several previously de-
`nied claims, including the claim for hemorrhoids. When
`Mr. Rodriguez’s request was denied, he appealed, and in
`September 2020, a Board remanded his claim to the RO for
`a Statement of the Case (SOC). Mr. Rodriguez then ap-
`pealed from the SOC.
`On appeal, the Board denied Mr. Rodriguez’s request
`to reopen his hemorrhoids claim and denied service connec-
`tion for his claims of left shoulder disorder, bilateral
`1 Citations to “Appx.” refer to the Appendix attached
`to the appellee’s brief.


`Case: 22-2081 Document: 14 Page: 3 Filed: 11/09/2022
`metatarsalgia with hallux valgus, and psoriasis with plan-
`tar warts. Appx. 15.
`For Mr. Rodriguez’s hemorrhoids claim, the Board
`found that some “evidence . . . received since the Au-
`gust 2013 rating decision” was new, but it was “duplicative
`and not material as it does not specifically address the rea-
`son the claim was previously denied.” Appx. 18–19 (apply-
`ing 38 C.F.R. § 3.156(b)). In other words, the Board found
`that the evidence submitted was not “new and material.”
`Appx. 19. Thus, the Board denied reopening this claim.
`Appx. 18–19. The Board also found that “no additional ser-
`vice records (warranting reconsideration of the claim) have
`been received at any time.” Appx. 18 (citing 38 C.F.R.
`§ 3.156(c)).
`The Board also evaluated Mr. Rodriguez’s service con-
`nection for left shoulder disorder, bilateral metatarsalgia
`with hallux valgus, and psoriasis with plantar warts.
`Appx. 23–28. For each claim, the Board considered the ev-
`idence of record, including a November 2020 report by a VA
`medical examiner, and determined that it was less likely
`than not that Mr. Rodriguez’s disabilities were a result of
`his service. In each instance, the Board found that Mr. Ro-
`driguez’s lay evidence regarding his disabilities was not
`sufficiently probative to outweigh the medical evidence.
`Thus, the Board found that Mr. Rodriguez had not estab-
`lished a nexus between his service and his disabilities.
`The Veterans Court affirmed the Board’s decision, ex-
`plaining that “the Board’s decision is not clearly wrong, is
`based on a correct understanding of the governing law, and
`is supported by an adequate statement of reasons or bases.”
`Appx. 2.
`Mr. Rodriguez appeals. We have jurisdiction under
`38 U.S.C. § 7292.


`Case: 22-2081 Document: 14 Page: 4 Filed: 11/09/2022
`Our jurisdiction over appeals from the Veterans Court
`is statutorily limited. We may only review decisions about
`the validity or interpretation of a rule of law, statute, or
`regulation. 38 U.S.C. § 7292(a). Except for a constitutional
`issue, we may not review a factual determination or an ap-
`plication of the law to facts. Id. § 7292(d)(2). We must af-
`firm a Veterans Court decision unless it is “(A) arbitrary,
`capricious, an abuse of discretion, or otherwise not in ac-
`cordance with law; (B) contrary to constitutional right,
`power, privilege, or immunity; (C) in excess of statutory ju-
`risdiction, authority, or limitations, or in violation of a stat-
`utory right; or (D) without observance of procedure
`required by law.” 38 U.S.C. § 7292(d)(1).
`On appeal, Mr. Rodriguez raises several argu-
`ments: (1) that the Veterans Court improperly inter-
`preted certain statutes and regulations; (2) that the court
`violated its fair process doctrine by improperly conducting
`additional discovery2; and (3) that the Board should have
`considered certain evidence submitted after his claims
`were deemed final. In his reply brief, Mr. Rodriguez also
`argues that the Board improperly weighed the lay evidence
`of record and that he was denied due process. We discuss
`each argument in turn.
`First, we address Mr. Rodriguez’s argument that the
`Veterans Court improperly interpreted the following
`2 Mr. Rodriguez’s pro se brief quotes, but does not
`provide a citation to Austin v. Brown, 6 Vet. App. 547, 553
`(1994), which discusses the fair process doctrine. Appel-
`lant’s Br. 2. His brief also does not refer to the fair process
`doctrine by name, nor provide an explanation for this argu-
`ment, but we liberally interpret his brief to raise this issue.
`See, e.g., Durr v. Nicholson, 400 F.3d 1375, 1380 (Fed. Cir.
`2005) (“[P]ro se pleadings are to be liberally construed.”).


`Case: 22-2081 Document: 14 Page: 5 Filed: 11/09/2022
`sources of law: (1) 38 U.S.C. § 7292(a), which relates to our
`jurisdiction to review an interpretation of a statute or reg-
`ulation by the Veterans Court; (2) 38 U.S.C. § 7104(d)(1),
`which relates to the Board’s requirement to explain all of
`its findings and conclusions; and (3) 38 U.S.C. § 7261(c),
`which prevents the Veterans Court from making findings
`of fact de novo. Appellant’s Br. 1. In his reply brief, Mr. Ro-
`driguez also cites to 38 C.F.R. § 3.156, which relates to
`“submit[ting] new and material evidence” for opening a
`previously denied claim.3 Reply Br. 1–2. Mr. Rodriguez
`appears to argue that because the Veterans Court inter-
`preted these statutes, we have jurisdiction over his appeal.
`At the outset, we recognize that the distinction be-
`tween an interpretation of law and an application of law
`can seem murky. We have explained that “an interpreta-
`tion of a statute or regulation occurs when its meaning is
`elaborated by the court.”
` Forshey v. Principi, 284
`F.3d 1335, 1349 (Fed. Cir. 2002) (en banc), superseded by
`statute on other grounds, Pub. L. No. 107-330, § 402(a), 116
`Stat. 2820. 2832
`(2002), as recognized
`in Taylor
`v. McDonough, 3 F.4th 1351, 1363 n.7 (Fed. Cir. 2021). In
`other words, an interpretation requires explaining, usually
`to clarify, what a statute or a regulation means.
`Here, the Veterans Court did not clarify or elaborate on
`the statutes nor the regulation that Mr. Rodriguez cited.
`Indeed, the Veterans Court does not reference 38 U.S.C.
`§ 7292(a) nor § 7104(d)(1). Although the court did cite
`38 C.F.R. § 3.156(a) and discuss the Board’s application of
`that regulation, Appx. 3–5, it did not elaborate on its mean-
`ing. Instead, it reviewed the Board’s application of the reg-
`ulation to the facts of Mr. Rodriguez’s case. Appx. 5. As
`we have explained, we do not have jurisdiction to review
`3 Although Mr. Rodriguez cites to “38 CFR section
`3.165” both this court and the government understand him
`to refer to § 3.156. See Appellee’s Br. 11–12.


`Case: 22-2081 Document: 14 Page: 6 Filed: 11/09/2022
`the application of law to fact. 38 U.S.C. §§ 7292(c), (d)(2);
`see also, Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir.
`2004). In sum, Mr. Rodriguez’s arguments about the stat-
`utes and regulation cited do not raise issues within our ju-
`risdiction. We thus dismiss this portion of Mr. Rodriguez’s
`Second, we address Mr. Rodriguez’s argument related
`to the fair process doctrine. Although he cites cases holding
`that the Veterans Court may not improperly obtain evi-
`dence against a veteran, Mr. Rodriguez does not explain
`what discovery the Veterans Court improperly engaged in
`or how that affected his case. Appellant’s Br. 2 (citing Hart
`v. Mansfield, 21 Vet. App. 505, 508 (2007) (holding that the
`VA may not procure evidence with the purpose of finding
`evidence against the veteran); Mariano v. Principi, 17 Vet.
`App. 305, 312 (2003) (same)). As such, we discern no legal
`error in the Veterans Court’s decision.
`We now turn to Mr. Rodriguez’s argument that the
`Board erred by not considering certain evidence he submit-
`ted after his claims were deemed final. Appellant’s Br. 2.
`Whether evidence submitted is “new and material” under
`§ 3.156(a)—and thus whether a veteran’s claim must be re-
`opened—is a question of fact over which we lack jurisdic-
`tion. Livingston v. Derwinski, 959 F.2d 224, 225–26
`(Fed. Cir. 1992). Whether the Board properly reconsidered
`a claim under § 3.156(c) following receipt of service depart-
`ment records, is also a question of fact over which we lack
`jurisdiction. See 38 U.S.C. § 7292(d)(2).
`Here, the Board found that the evidence submitted by
`Mr. Rodriguez was either cumulative to previously submit-
`ted evidence (i.e., was not new) or was not material.
`Appx. 18–19. Accordingly, the Board did not reopen
`Mr. Rodriguez’s claims for benefits. The Board also stated
`that “no additional service records (warranting reconsider-
`ation of the claim) have been received at any time,” and
`cited to § 3.156(c). Appx. 18.


`Case: 22-2081 Document: 14 Page: 7 Filed: 11/09/2022
`To the extent Mr. Rodriguez now appeals those factual
`findings, we do not have jurisdiction to review that argu-
`ment. See 38 U.S.C. § 7292(d)(2); Livingston, 959 F.3d at
`226 (dismissing appeal challenging Board’s finding that
`new and material evidence had not been submitted). We
`thus dismiss this portion of Mr. Rodriguez’s appeal.
`Further, Mr. Rodriguez also appears to argue that, by
`not considering this evidence, the Board violated the First
`Amendment, deprived him of meaningful access to the
`courts, and committed fraud. Appellant’s Br. 2; see Reply
`Br. 3–4; see also United Transp. Union v. State Bar of
`Mich., 401 U.S. 576, 585 (1971) (“[M]eaningful access to the
`courts is a fundamental right within the protection of the
`First Amendment.”). Regarding these alleged constitu-
`tional violations and allegations of fraud, Mr. Rodriguez’s
`briefing provides no further detail or support. As we have
`explained, appellants waive any arguments that they do
`not adequately develop. See Rodriguez v. Dep’t of Veterans
`Affairs, 8 F.4th 1290, 1305 (Fed. Cir. 2021). Because
`Mr. Rodriguez has “merely alluded to” these arguments
`and has “not developed” them, id., we dismiss this portion
`of Mr. Rodriguez’s appeal as waived.4
`4 Mr. Rodriguez makes two further arguments for
`the first time in his reply brief: that the Board did not as-
`sign the appropriate weight to the lay evidence of record
`and that he was denied due process because the Veterans
`Court did not adequately explain its decision. Reply Br. at
`2–3. Because Mr. Rodriguez raises both of these argu-
`ments for the first time in his reply brief, he has waived
`them. See Becton Dickinson & Co. v. C.R. Bard, Inc., 922
`F.2d 792, 800 (Fed. Cir. 1990) (“[A]n issue not raised by an
`appellant in its opening brief . . . is waived.”).


`Case: 22-2081 Document: 14 Page: 8 Filed: 11/09/2022
`For the reasons above, we discern no legal error with
`respect to the fair process doctrine and no other issue for
`which we have jurisdiction to review. Thus, we affirm-in-
`part and dismiss-in-part.
`No costs.

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