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NOTE: This disposition is nonprecedential.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
______________________
JESUS RODRIGUEZ, JR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-2081
______________________
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
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY.
______________________
Before STOLL, SCHALL, and STARK, Circuit Judges.
Case: 22-2081 Document: 14 Page: 2 Filed: 11/09/2022
2 RODRIGUEZ v. MCDONOUGH
PER CURIAM.
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.
BACKGROUND
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.
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RODRIGUEZ v. MCDONOUGH 3
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.
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4 RODRIGUEZ v. MCDONOUGH
DISCUSSION
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 discovery 2; 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.”).
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RODRIGUEZ v. MCDONOUGH 5
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.
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6 RODRIGUEZ v. MCDONOUGH
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
appeal.
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.
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RODRIGUEZ v. MCDONOUGH 7
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.”).
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8 RODRIGUEZ v. MCDONOUGH
CONCLUSION
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.
AFFIRMED-IN-PART, DISMISSED-IN-PART
COSTS
No costs.