Case: 22-2083 Document: 43 Page: 1 Filed: 03/01/2024
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`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`WANDA BECK,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2022-2083
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 20-1995, Judge Coral Wong Pi-
`etsch, Judge Scott Laurer, Judge William S. Greenberg.
`______________________
`
`Decided: March 1, 2024
`______________________
`
`KENNETH M. CARPENTER, Law Offices of Carpenter
`Chartered, Topeka, KS, argued for claimant-appellant.
`
` MEREDYTH COHEN HAVASY, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, argued for respondent-appellee.
`Also represented by BRIAN M. BOYNTON, AUGUSTUS
`JEFFREY GOLDEN, MARTIN F. HOCKEY, JR., PATRICIA M.
`MCCARTHY; BRIAN D. GRIFFIN, RICHARD STEPHEN HUBER,
`
`

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`Case: 22-2083 Document: 43 Page: 2 Filed: 03/01/2024
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`BECK v. MCDONOUGH
`
`Office of General Counsel, United States Department of
`Veterans Affairs, Washington, DC.
`______________________
`
`Before REYNA, TARANTO, and CHEN, Circuit Judges.
`REYNA, Circuit Judge.
`Appellant, Wanda Beck, on behalf of her late husband,
`Arthur T. Beck, appeals a decision of the U.S. Court of Ap-
`peals for Veterans Claims.1 The Veterans Court affirmed
`the Board of Veterans’ Appeals’ denial of an earlier effec-
`tive date for service connection for major depressive disor-
`der. J.A. 1. For the reasons below, we dismiss this appeal
`for lack of jurisdiction.
`BACKGROUND
`Mr. Beck’s March 2005 pension claim
`I.
`Mr. Beck served on active duty in the U.S. Army from
`June 1974 to May 1975. J.A. 35. In March 2005, Mr. Beck
`filed a VA Form 21–526, entitled “Application for Compen-
`sation and/or Pension,” where Mr. Beck noted that “back
`inj[ury]” and “psy/alcohol” kept him from working (the
`“March 2005 pension claim”). J.A. 36–47, J.A. 44. Mr.
`Beck checked the box on the form noting he was applying
`for pension benefits only. J.A. 36. He did not check either
`of the other two boxes listed, which were labeled “Compen-
`sation” and “Compensation and Pension.” J.A. 36.
`In June 2005, the U.S. Department of Veterans Affairs
`(“VA”) denied Mr. Beck’s March 2005 pension claim.
`J.A. 137. In August 2005, Mr. Beck filed a Notice of Disa-
`greement with the June 2005 VA decision and submitted
`
`1 On November 20, 2023, we granted appellant’s un-
`opposed motion to substitute Wanda Beck for Arthur T.
`Beck. However, when referring to appellant in this opin-
`ion, we will refer to Mr. Beck.
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`BECK v. MCDONOUGH
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`additional medical records to the VA. J.A. 145–150. The
`records consisted of medical progress notes from the
`Coatesville VA Medical Center concerning Mr. Beck’s care.
`J.A. 145–150. One medical progress note dated April 1,
`2005 (the “April 1, 2005, VA treatment note”), stated that
`Mr. Beck had physical altercations with military superiors
`during his time in service, including one incident in which
`a servicemember snuck up behind Mr. Beck and left him
`unconscious. J.A. 149. It is not clear from the record how
`Mr. Beck was rendered unconscious. J.A. 149.
`In October 2005, the VA notified Mr. Beck that his
`March 2005 pension claim remained denied. J.A. 163.
`However, in March 2006, the VA switched course, granting
`Mr. Beck’s March 2005 pension claim. J.A. 48–49.
`II. Mr. Beck’s May 2007 Statement
`On May 18, 2007, Mr. Beck submitted a “Statement in
`Support of Claim,” where he noted that during his time in
`service, he fell down some stairs and hurt his right leg and
`lower back (the “May 2007 Statement”). J.A. 165. He
`noted that he “was told [his] back and knee condition could
`be from [his] fall in the military.” J.A. 166. He also noted
`that “I am in the [] Coatesville [VA Medical Center] from
`5/8/07 to present.” J.A. 165. There is no indication on the
`face of this document that this “statement” is related to any
`specific claim.
`III. Mr. Beck’s October 2013 compensation claim
`On October 30, 2013, Mr. Beck filed a claim for com-
`pensation benefits for a “mental health condition,” (the
`“October 2013 compensation claim”). J.A. 55. In January
`2015, the VA granted Mr. Beck’s October 2013 compensa-
`tion claim for major depressive disorder (“MDD”), effective
`December 12, 2013. J.A. 56. Mr. Beck appealed, arguing
`for entitlement to an earlier effective date. J.A. 62. In Au-
`gust 2016, the VA granted Mr. Beck an earlier effective
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`BECK v. MCDONOUGH
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`date of October 30, 2013, the date that Mr. Beck initially
`submitted his claim for compensation. J.A. 63.
` Mr. Beck appealed to the Board of Veterans’ Appeals
`(“Board”), arguing for an earlier effective date of March 21,
`2005, for his compensation claim for MDD. J.A. 99. Mr.
`Beck argued that a veteran’s claim for pension benefits
`may be considered as a claim for compensation. J.A. 101
`(citing 36 C.F.R. § 3.151(a)). Thus, according to Mr. Beck,
`his March 2005 pension claim also included a claim for
`compensation for MDD. J.A. 101. And because of this, Mr.
`Beck argued his effective date for his compensation claim
`for MDD should be March 21, 2005, not October 30, 2013.
`J.A. 101. Mr. Beck did not reference his May 2007 State-
`ment in his appeal before the Board or argue that this May
`2007 Statement should be considered a separate claim for
`compensation for MDD. See J.A. 99–102, J.A. 115–117.
`In June 2019, approximately five months before the
`Board issued its decision in Mr. Beck’s appeal, this court
`issued Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir. 2019). In
`Shea, we explained that a veteran’s claim “must identify
`the benefit sought.” 926 F.3d at 1368. However, where a
`veteran proceeds pro se, the veteran need not explicitly
`identify all relevant claim elements in his or her “claim-
`stating documents.” Id. Rather, when deciding what disa-
`bilities the “claim” is understood to be identifying, the VA
`“must look beyond the four corners” of the claim-stating
`documents when those “documents themselves point else-
`where,” such as to medical records. Id. at 1369. It is un-
`disputed that Mr. Beck did not file a notice of supplemental
`authority to the Board concerning Shea before the Board
`issued its decision or raise any argument before the Board
`concerning this case.
`In November 2019, the Board denied Mr. Beck’s argu-
`ment for an earlier effective date for his compensation
`claim for MDD. J.A. 119, J.A. 126. The Board did not dis-
`cuss Shea in its decision. See J.A. 124–126. Additionally,
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`the Board recognized that the regulations provide that a
`claim for pension “may be considered” a claim for compen-
`sation under 38 C.F.R. § 3.151(a). J.A. 124 (emphasis in
`original). But the Board also noted that the regulation does
`not require that “all claims” be read as seeking both pen-
`sion and compensation benefits. J.A. 124 (emphasis in
`original). The Board further explained that the law re-
`quires a claim to “evidence a belief in entitlement to com-
`pensation benefits” for a particular disability. J.A. 124
`(citing Stewart v. Brown, 10 Vet. App. 15, 18–19 (1997)).
`According to the Board, the first identifiable claim for com-
`pensation benefits for any psychiatric disability was Mr.
`Beck’s October 2013 compensation claim. J.A. 126. The
`Board also determined that Mr. Beck’s claim dated March
`2005 was for pension benefits only. J.A. 124–126.
`Mr. Beck appealed to the U.S. Court of Veterans
`Claims (“Veterans Court”). Notably, Mr. Beck did not ap-
`peal the Board’s finding that Mr. Beck’s claim dated March
`2005 was only for pension benefits explicitly. J.A. 4–5, J.A.
`191–192. Rather, before the Veterans Court, Mr. Beck ar-
`gued for the first time that his May 2007 Statement was a
`“claim”
`for compensation benefits
`for “depression.”
`J.A. 187. According to Mr. Beck, his May 2007 “claim”
`identified his medical records from the Coatesville VA
`Medical Center from May 1 to May 18, 2007. J.A. 189.
`These medical records, Mr. Beck argued, identified his
`MDD and thus contained a reasonably ascertainable diag-
`nosis of his current service-connected depression. J.A. 189.
`Mr. Beck further argued that under Shea, the Board was
`required to discuss and “fully weigh[]” his May 2007
`“claim.” J.A. 190. Thus, Mr. Beck argued, the Board’s fail-
`ure to consider Shea and his May 2007 “claim” was error.
`Mr. Beck also argued for the first time that the Board
`erred when it failed to consider the April 1, 2005 VA treat-
`ment note. J.A. 191. According to Mr. Beck, this document
`evidenced his “psychiatric disability.” J.A. 191.
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`The Veterans Court affirmed the Board’s decision.
`J.A. 5. The Veterans Court exercised its discretion under
`the issue exhaustion doctrine to not address Mr. Beck’s
`newly raised arguments concerning Shea and the alleged
`May 2007 claim. J.A. 4.
`The Veterans Court also did not consider Mr. Beck’s
`untimely argument concerning the April 1, 2005 VA treat-
`ment note under the issue exhaustion doctrine. J.A. 4. The
`Veterans Court explained that Mr. Beck failed to provide
`any reason for why the court should exercise discretion con-
`cerning this argument. J.A. 4. The Veterans Court also
`noted that Mr. Beck failed to explain the relevancy of the
`April 1, 2005 VA treatment note and that even if it were
`relevant, there needed to be a compensation claim for the
`VA to consider the treatment record along with and that
`there was not. J.A. 4 n.23. Specifically, the Veterans Court
`explained that the Board found that the March 2005 pen-
`sion claim could not serve as a compensation claim and
`that Mr. Beck had not adequately challenged that finding
`before the Veterans Court. J.A. 5.
`Mr. Beck moved for reconsideration, challenging the
`Veterans Court’s failure to consider Shea. See J.A. 6–16.
`Mr. Beck did not discuss the Veterans Court’s determina-
`tion concerning the April 1, 2005 VA treatment note in his
`motion for reconsideration. See J.A. 6–16. The Veterans
`Court denied Mr. Beck’s motion and entered judgment on
`June 1, 2022. J.A. 25–27.
`Mr. Beck appeals the Veterans Court’s determination
`concerning Shea, and by extension, the May 2007 State-
`ment. Mr. Beck does not present any argument in his open-
`ing brief before this court concerning the April 1, 2005 VA
`treatment note. This argument is therefore forfeited. Ev-
`ans v. Bldg. Materials Corp. of Am., 858 F.3d 1377, 1382
`(Fed. Cir. 2017) (finding argument “is too late” when not
`raised until the reply brief and oral argument). Indeed,
`Mr. Beck does not once explicitly discuss the April 1, 2005
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`BECK v. MCDONOUGH
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`VA treatment note in any briefing before this court. Addi-
`tionally, Mr. Beck does not challenge on appeal any of the
`Veterans Court’s underlying factual findings concerning
`the April 1, 2005 VA treatment note, see J.A. 4–5, nor do
`we have jurisdiction to review such factual findings. 38
`U.S.C. § 7292(d)(2).
`
`DISCUSSION
`I
`We have limited appellate jurisdiction over appeals
`from the Veterans Court. Sullivan v. McDonald, 815 F.3d
`786, 788–89 (Fed. Cir. 2016). 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).
`II
`Mr. Beck argues that the Veterans Court erred by ex-
`panding the application of issue exhaustion “in excess of
`what is required by law” when it declined to consider Shea
`and its impact on the Board’s treatment of Mr. Beck’s May
`2007 Statement. Appellant Br. 5. Mr. Beck argues that
`the Veterans Court’s error is like the Veterans Court’s er-
`ror that this court found in Bozeman v. McDonald, 814 F.3d
`1354 (2016). Id. For the reasons discussed below, we dis-
`miss Mr. Beck’s appeal for lack of jurisdiction.
`The Veterans Court may hear legal arguments raised
`for the first time concerning a claim that is properly before
`the court, but it is not compelled to do so in every instance.
`Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000). “Be-
`cause the decision to invoke the doctrine of issue exhaus-
`tion is a discretionary one, its application is largely a
`matter of application of law to fact, a question over which
`we lack jurisdiction.” Dickens v. McDonald, 814 F.3d 1359,
`1361 (Fed. Cir. 2016); Bozeman, 814 F.3d at 1357.
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`BECK v. MCDONOUGH
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`At bottom, Mr. Beck challenges the Veterans Court’s
`application of the issue exhaustion doctrine, a challenge
`that squarely falls outside of our jurisdiction. Dickens,
`814 F.3d at 1361; Bozeman, 814 F.3d at 1357. Here, the
`Veterans Court first determined that Mr. Beck’s argument
`concerning Shea was untimely given that Mr. Beck had the
`opportunity to raise this issue before the Board and that
`Mr. Beck was represented by able counsel at the time.
`J.A. 4–5. Then, based on these fact findings, which we
`cannot disturb, 38 U.S.C. § 7292(d)(2), the Veterans Court
`declined to entertain Mr. Beck’s argument that Shea re-
`quired the Board to consider his May 2007 Statement as a
`potential claim for compensation. J.A. 4–5. Mr. Beck has
`not challenged any aspect of this determination that could
`be reasonably characterized as purely legal.
`Mr. Beck, nonetheless, argues that the Veterans Court
`legally erred when it “required Mr. Beck to have raised his
`reasons and bases argument below before he could have
`known how and why the Board would determine that his
`claim should be denied.” Appellant Br. 7 (emphasis in the
`original). In other words, Mr. Beck argues that it would
`have been impossible to raise before the Board any argu-
`ment concerning the Board’s error since such error had not
`yet happened. But Mr. Beck’s argument misses the mark.
`Here, the issue is not Mr. Beck’s lack of precognition of
`Board error. Rather, the issue is Mr. Beck’s untimeliness.
`If Mr. Beck wanted to rely on Shea, Mr. Beck had the time
`and opportunity to present this legal argument before the
`Board. He did not do so. His choice came with a risk: that
`the Veterans Court would not consider his newly raised le-
`gal argument under the doctrine of issue exhaustion. See
`Maggitt, 202 F.3d at 1378. And as previously noted, we
`have no jurisdiction to review the Veterans Court’s
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`BECK v. MCDONOUGH
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`application of issue exhaustion to the facts of a case. Dick-
`ens, 814 F.3d at 1361; Bozeman, 814 F.3d at 1357.2
`Mr. Beck also argues that the Veterans Court’s error in
`this case is the same legal error we found in Bozeman. Mr.
`Beck’s reliance on Bozeman is misplaced. In Bozeman, we
`determined that the Veterans Court “erroneously ex-
`panded the legal definition of issue exhaustion to apply to
`a claimant’s citation of additional record evidence in sup-
`port of [the veteran’s] previously raised claim [before the
`Board] for an earlier effective date.” 814 F.3d at 1358. We
`then explained that “[t]he mere citation of evidence already
`contained in the record to further support that claim is not
`a new legal argument for purposes of issue exhaustion.” Id.
`(emphasis added).
`Unlike in Bozeman, Mr. Beck did not raise for the first
`time before the Veterans Court mere record citations in
`support of already raised claims. Rather, Mr. Beck raised
`for the first time before the Veterans Court a new claim, an
`alleged May 2007 claim for compensation. And for the first
`time before the Veterans Court, Mr. Beck argued for an
`earlier effective date for his MDD based on this 2007 claim
`for compensation. Prior to this, Mr. Beck had only argued
`before the VA and the Board that he was entitled to an ear-
`lier effective date for MDD based on his March 2005
`
`2 The Veterans Court may want to consider a new
`legal argument on appeal. See Maggitt, 202 F.3d at 1378.
`For example, oftentimes, veterans may not obtain inde-
`pendent counsel until after the Board reaches its final de-
`cision. Id. Thus, the Veterans Court should consider such
`circumstances when deciding whether to apply the doctrine
`of issue exhaustion. Id. Here, however, able counsel rep-
`resented Mr. Beck since May 2015, years before the Board
`issued its decision. J.A. 4. Before that, a veteran service
`organization represented Mr. Beck since March 2005. See
`Appellee Br. 2; J.A. 48–50, J.A. 56, J.A. 60.
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`pension claim. Mr. Beck’s new legal argument concerning
`an alleged May 2007 compensation claim cannot be shoe-
`horned into Bozeman’s narrow exception to the doctrine of
`issue exhaustion.
`
`CONCLUSION
`We have fully considered Mr. Beck’s remaining argu-
`ments but find them unpersuasive. The appeal is dis-
`missed for lack of jurisdiction.
`DISMISSED
`COSTS
`
`No costs.
`
`