Case: 20-1532 Document: 17 Page: 1 Filed: 08/03/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MELVIN C. HINTON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1532
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-4477, Judge Amanda L. Mere-
dith.
______________________
Decided: August 3, 2020
______________________
MELVIN C. HINTON, Lancaster, TX, pro se.
KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
ETHAN P. DAVIS, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.; CHRISTOPHER O. ADELOYE, BRIAN D.
GRIFFIN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
Case: 20-1532 Document: 17 Page: 2 Filed: 08/03/2020
2 HINTON v. WILKIE
______________________
Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.
PER CURIAM.
Pro se appellant Melvin C. Hinton appeals a decision of
the United States Court of Appeals for Veterans Claims
(Veterans Court) denying certain claims for disability com-
pensation and declining to review the disability rating for
his psychiatric disorder. Hinton v. Wilkie, No. 18-4477,
2019 WL 4584260 (Vet. App. Sept. 23, 2019). The Veterans
Court determined that Mr. Hinton never properly initiated
an appeal of his disability rating because he had failed to
submit the standardized form required by the applicable
regulations. Because we have previously upheld the valid-
ity of those regulations, the Veterans Court did not err in
declining to review Mr. Hinton’s disability rating. We af-
firm-in-part the Veterans Court’s decision and dismiss-in-
part the appeal.
BACKGROUND
Mr. Hinton is a Veteran of the Persian Gulf War. In
September 2012, he submitted various claims to the De-
partment of Veterans Affairs (VA) for service-connected
disability benefits, including claims for PTSD, sleep disor-
der, and memory loss. During a VA psychiatric exam in
July 2013, Mr. Hinton reported his sleeping problems, but
the medical examiner concluded that his condition did not
meet the diagnostic criteria for a psychiatric condition.
S.A. 2. 1 The VA Regional Office (RO) denied all of Mr. Hin-
ton’s claims in a rating decision issued in August 2013.
Later that month, Mr. Hinton timely filed a Notice of
1 S.A. refers to the supplemental appendix submitted
with the Government’s brief.
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HINTON v. WILKIE 3
Disagreement (NOD) appealing, inter alia, the PTSD, sleep
disorder, and memory loss denials.
In November 2015, while his Board appeal was pend-
ing, Mr. Hinton underwent another psychiatric examina-
tion where a VA medical examiner diagnosed him with
“other specified trauma- and stressor-related disorder” but
found that he did not meet the criteria for PTSD. S.A. 3.
The examination also indicated that Mr. Hinton did not
suffer from memory issues and his sleep disturbances were
a symptom of, and not independent from, his psychiatric
disorder.
In light of this additional examination, the RO issued
a new rating decision in September 2017, granting service
connection for “other specified trauma[-] and stressor[-]re-
lated disorder (claimed as [PTSD])” and assigning a 30%
disability rating. S.A. 3. The RO stated in its September
2017 decision that the 30% rating was “considered a full
grant of the benefit sought on appeal” for the PTSD claim
and did not address the memory loss and sleep disorder
claims. R. 94. 2 An accompanying letter notified Mr. Hin-
ton that if he disagreed with the rating decision, he “must
complete and return . . . the enclosed VA Form 21-0958,
Notice of Disagreement, in order to initiate [his] appeal. . .
. [within] one year from the date of this letter.” R. 90 (em-
phasis in original). Mr. Hinton did not submit a completed
VA Form 21-0958 for the September 2017 rating decision.
Subsequently, the RO issued a Supplemental State-
ment of the Case (SSOC) 3 describing the issues still
2 R. refers to the record before the Veterans Court. Rec-
ord of Proceedings Amended, Hinton v. Wilkie, No. 18-
4477, 2019 WL 4584260 (Vet. App. Sept. 23, 2019).
3 Though unclear from the record before us, the SSOC
does not appear to discuss the 30% disability rating from
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4 HINTON v. WILKIE
pending for appeal before the Board of Veteran’s Appeals
(Board). R. 3. In November 2017, Mr. Hinton responded
to the SSOC by filing a completed VA Form 9 4 that ex-
pressed his dissatisfaction with the September 2017 rating
decision. Id.
In April 2018, the Board adjudicated the appeal of the
claim denials for sleep disturbances and memory loss. The
Board agreed with the RO, finding that the “claimed disa-
bilities are actually symptoms of [Mr. Hinton’s] [] service-
connected acquired psychiatric disorder” for which he was
already being compensated. R. 9. Since these were not dis-
tinctly diagnosed conditions with symptomatology sepa-
rate and apart from his service-connected psychiatric
disorder, the Board concluded it was precluded from grant-
ing those claims by the prohibition against pyramiding un-
der 38 C.FR. § 4.14. R. 10–11.
The Board declined to review the September 2017 rat-
ing decision because Mr. Hinton had not properly initiated
an appeal of this issue under the applicable regulations.
While acknowledging that Mr. Hinton had expressed his
dissatisfaction using VA Form 9, the Board observed that
the regulations governing appeals had been amended in
2015 to require all appeals to originate on a standard form
the September 2017 decision, instead only addressing de-
nials for Mr. Hinton’s remaining claims (e.g., memory loss
and sleep disturbances). R. 3.
4 VA Form 9 is used to sustain an appeal of the issues
discussed in a SOC or SSOC and request a hearing before
the Board. This form is used after an appeal for those is-
sues has been initiated by filing a NOD. See, e.g., U.S. De-
partment of Veterans Affairs, Manage a Legacy VA Appeal,
https://www.va.gov/decision-reviews/legacy-appeals/ (last
updated Jun. 22, 2020).
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HINTON v. WILKIE 5
provided by the VA. 5 The Board concluded that the
amended regulations required Mr. Hinton to appeal his
30% disability rating using the prescribed VA Form 21-
0958, and no other form would be acceptable. See R. 4
(“[T]o the extent that [Mr. Hinton] submitted a VA Form 9
that disagrees with the rating assigned for that disability,
it cannot be accepted as a proper appeal of that issue.”); see
also 38 C.F.R. § 20.201(a)(1) (2015) (“[The] VA will not ac-
cept as a [NOD] an expression of dissatisfaction . . . that is
submitted in any other format, including a different VA
form.”). The Board advised Mr. Hinton that he could still
timely appeal the September 2017 rating decision by “sub-
mitting a completed VA Form 21-0958 prior to October 12,
2018.” R. 4. Mr. Hinton moved for reconsideration of the
Board’s decision, which the Chairman of the Board denied
on August 1, 2018. The Chairman reiterated that Mr. Hin-
ton must submit a completed VA Form 21-0958 prior to Oc-
tober 2018 to properly appeal the September 2017 rating
decision.
Before the Veterans Court, Mr. Hinton argued that the
Board erred by declining to grant him a higher disability
rating for his other specified trauma- and stressor-related
disorder. Mr. Hinton did not challenge the denial of sepa-
rate service connections for his sleep disorder and memory
loss claims—instead, he argued that the claimed conditions
were symptoms of his service-connected psychiatric disor-
der, and his symptomology supported a disability rating
5 Prior to 2015, the VA permitted claimants to initiate
appeals “by filing in any format a statement that can be
‘reasonably construed’ as seeking appellate review.”
Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660
(Sept. 25, 2014). However, effective March 24, 2015, the
regulations governing appeals were amended to require all
appeals to originate on standard forms prescribed by the
VA. Id. at 57,691; see also 38 C.F.R. § 20.201(a)(1) (2015).
Case: 20-1532 Document: 17 Page: 6 Filed: 08/03/2020
6 HINTON v. WILKIE
greater than 30%. Because Mr. Hinton “acknowledge[d] . .
. that he did not file an appropriate NOD” to the September
2017 decision and “[did] not argue or point to any evidence
reflecting that he properly appealed” that decision, the Vet-
erans Court declined to review the correctness of the 30%
rating, which was never properly before the Board. S.A. 5–
6. The Veterans Court affirmed the Board’s decision and
dismissed his appeal of the Chairman’s denial for reconsid-
eration.
Mr. Hinton timely appeals, seeking to invoke our juris-
diction under 38 U.S.C. § 7292.
DISCUSSION
Our jurisdiction to review decisions by the Veterans
Court is limited by statute. Scott v. Wilkie, 920 F.3d 1375,
1377–78 (Fed. Cir. 2019). We may review “the validity of a
decision of the Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on by
the Court in making the decision.” 38 U.S.C. § 7292(a). We
may not, however, review factual challenges or the appli-
cation of law to the facts of a particular case absent a con-
stitutional issue. Id. § 7292(d)(2).
I. September 2017 Rating Decision
On appeal, Mr. Hinton argues that the Veterans Court
erroneously declined to consider whether he is entitled to a
disability rating higher than the 30% rating granted in the
September 2017 RO decision. Mr. Hinton does not deny
that he failed to submit a NOD to that decision on VA Form
21-0958 within the one-year time limit. Instead, we
broadly construe Mr. Hinton’s pleadings to present two ar-
guments for why he properly appealed the 30% rating.
First, we read Mr. Hinton’s appeal as asserting that his
properly filed NOD to the August 2013 decision, which ap-
pealed the denial of service connection for his PTSD claim,
should be construed to have also initiated appellate review
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HINTON v. WILKIE 7
of the 30% rating granted in the September 2017 decision.
Alternatively, Mr. Hinton appears to argue that his No-
vember 2017 VA Form 9 should be construed as a proper
NOD to the 30% rating because it is a written communica-
tion expressing dissatisfaction with the September 2017
decision. We find neither argument persuasive.
First, we conclude that Mr. Hinton’s NOD appealing
the denial of service connection for his PTSD claim cannot
also initiate appellate review of the 30% rating assigned to
his service-connected psychiatric disorder. A veteran’s
overall claim for benefits comprises multiple separate ele-
ments, and the agency’s “first decision regarding a claim
for benefits might not resolve, or even address, all neces-
sary elements of the application for benefits.” See Gran-
tham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). In
Grantham, we held that a NOD appealing “the logically up-
stream element of service-connectedness” from an initial
RO decision “[cannot] concern the logically down-stream el-
ement of compensation level,” which was addressed, for the
first time, in a subsequent RO decision. Id. at 1158–59.
Here, with respect to Mr. Hinton’s PTSD claim, the August
2013 NOD appealed only the denial of service connection
for that claim. On the NOD form, under “Area of Disagree-
ment,” Mr. Hinton checked only the box labeled “Service
Connection.” R. 655–56. That form also included a box for
appealing “Evaluation of Disability” and a space for indi-
cating the “Percentage (%) Evaluation Sought,” which Mr.
Hinton did not fill out. Id. Thus, the appeal initiated by
the August 2013 NOD concerned only the issue of service-
connectedness for a claimed psychiatric disorder and not
the “logically down-stream” issue of rating level, which the
RO ruled on, for the first time, in the September 2017 de-
cision. We therefore conclude that the August 2013 NOD
did not initiate appellate review of the 30% rating granted
in the September 2017 decision.
We also conclude that the November 2017 VA Form 9
did not constitute a proper NOD for initiating and
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8 HINTON v. WILKIE
preserving an appeal. Since March 24, 2015, the VA’s reg-
ulations have required all appeals to originate on a stand-
ard form provided with the rating decision—in this case,
VA Form 21-0958. 38 C.F.R. § 20.201(a)(1) (2015). 6 The
VA “will not accept as a [NOD] an expression of dissatisfac-
tion or disagreement with an adjudicative determination
by the agency . . . and a desire to contest the result that is
submitted in any other format, including on a different VA
form.” Id. (emphasis added).
To the extent Mr. Hinton challenges the validity of the
standard form requirement, we note that the amended reg-
ulations were upheld, over rulemaking challenge, in Veter-
ans Justice Group, LLC v. Sec’y of Veterans Affairs, 818
F.3d 1336 (Fed. Cir. 2016). There, we held that the VA nei-
ther exceeded its authority nor acted arbitrarily by requir-
ing NODs to be completed on standard forms—a
requirement we found to be rationally related to the effi-
cient adjudication of veterans’ appeals. Id. at 1352–54.
As with appeals, the amended regulations also require
new claims to be initiated on standard forms. See id. at
1342–43 (explaining that the prior “informal claim” frame-
work was replaced by the “intent to file a claim” frame-
work, which requires a claimant to perfect a new claim by
filing a “standard application form” within one year), 1350–
52 (upholding the validity of the “intent to file a claim”
framework); see also 38 C.F.R. § 3.155(b). Recently, we
have denied benefits under the “intent to file a claim”
framework for failure to timely file a formal claim using the
standard application form. See Merritt v. Wilkie, No. 2019-
1095, 2020 WL 4032812, at *5 (Fed. Cir. July 17, 2020) (dis-
missing appeal as moot because claimant “did not preserve
her claim for accrued benefits by filing a formal claim
within [the relevant time limit]”). Likewise, here, the
amended regulations require us to conclude that an appeal
6 Now codified at 38 C.F.R. § 20.202(d).
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HINTON v. WILKIE 9
has not been properly initiated absent timely filing of the
prescribed standard form.
The amended regulations were in force during the one-
year period for initiating appeal of the September 2017 rat-
ing decision. That rating decision enclosed a copy of VA
Form 21-0958 and expressly instructed Mr. Hinton that he
“must complete and return to [the VA] the enclosed VA
Form 21-0958 . . . in order to initiate [his] appeal” within
one year. R. 90. In addition, Mr. Hinton was advised by
both the Board and the Chairman of the Board, prior to the
expiration of that one-year deadline, that he must submit
VA Form 21-0958 to properly initiate an appeal of the 30%
disability rating. Yet Mr. Hinton did not do so. Given the
absence of a timely filed VA Form 21-0958, we affirm the
Veterans Court’s decision not to review the September
2017 rating decision because that decision was never
properly appealed to the Board.
II. November 2015 Medical Examination
Mr. Hinton also challenges the sufficiency of the No-
vember 2015 medical examination diagnosing him with
other specified trauma- and stressor-related disorder. Spe-
cifically, Mr. Hinton argues that the November 2015 exam-
ination is inadequate because it “does not contain sufficient
detail” and conflicts with an October 2014 mental health
progress report diagnosing him with PTSD. See Appel-
lant’s Reply Br. 7; Appellant’s Br. 4. The sufficiency of a
medical opinion is a question of fact beyond our jurisdic-
tion. See Prinkey v. Shinseki, 735 F.3d 1375, 1383 (Fed.
Cir. 2013). Because we lack jurisdiction over this part of
Mr. Hinton’s appeal, we are compelled to dismiss it.
To the extent Mr. Hinton argues that the Board inap-
propriately credited or weighed evidence from the various
medical examinations of record, those are likewise factual
issues over which this court lacks jurisdiction. King v.
Shinseki, 700 F.3d 1339, 1346 (Fed. Cir. 2012) (“The eval-
uation and weighing of evidence and the drawing of
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10 HINTON v. WILKIE
appropriate inferences from it are factual determinations
committed to the discretion of the fact-finder.”) (internal
quotations and citation omitted). Accordingly, we dismiss
Mr. Hinton’s appeal regarding those issues.
CONCLUSION
We have considered Mr. Hinton’s remaining argu-
ments but find them to be unpersuasive or beyond our ju-
risdiction to review. For the reasons above, we affirm in
part the Veterans Court’s decision and dismiss in part the
appeal.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.