Thomas v. McDonough

Case: 22-1504 Document: 54 Page: 1 Filed: 03/27/2024

United States Court of Appeals
for the Federal Circuit
______________________

ORVILLE K. THOMAS,
Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2022-1504
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4192, Judge Joseph L. Falvey,
Jr.
______________________

Decided: March 27, 2024
______________________

CHRIS ATTIG, Attig Curran Steel PLLC, Little Rock,
AR, argued for claimant-appellant. Also represented by
HALEY SMITH.

IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; JULIE HONAN, Y. KEN LEE, DEREK SCADDEN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 22-1504 Document: 54 Page: 2 Filed: 03/27/2024

2 THOMAS v. MCDONOUGH

______________________

Before LOURIE, REYNA, and CUNNINGHAM, Circuit Judges.
REYNA, Circuit Judge.
Mr. Orville Thomas appeals a decision of the U.S.
Court of Appeals for Veterans Claims. The Veterans Court
affirmed the Board of Veterans’ Appeals’ denial of an ear-
lier effective date for Mr. Thomas’ claim of service connec-
tion for post-traumatic stress disorder. Because the
Veterans Court applied an improper legal standard when
reviewing the Board’s decision, we vacate and remand.
BACKGROUND
Mr. Thomas served in the U.S. Navy from 1957 to 1964.
J.A. 1–2. In January 1961, he was an airman on a plane
that crashed on Midway Island, killing nine people. J.A. 2.
Of the six passengers who were seated in the plane’s mid-
section, Mr. Thomas was the sole survivor. J.A. 2. Three
years later in 1964, Mr. Thomas was honorably discharged
as unsuitable for service after being diagnosed with an
emotionally unstable personality. J.A. 211, 275.
In January 1971, he submitted a claim to the U.S. De-
partment of Veterans Affairs (“VA”) for service connection
for his “depressive mania.” J.A. 277. He expressed to the
VA that, after surviving the plane crash, he was experienc-
ing ongoing emotional distress and had attempted suicide.
J.A. 277. The VA regional office obtained Mr. Thomas’
medical records, which showed that he had been treated for
emotional problems and was subsequently discharged.
J.A. 204–75. Based on solely the medical records, the VA
denied service connection and concluded that an emotion-
ally unstable personality was not a disability under the
law. J.A. 203. In reaching this decision, the VA did not
consider Mr. Thomas’ service department records. Mr.
Thomas did not appeal this decision.
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THOMAS v. MCDONOUGH 3

On June 16, 2014, Mr. Thomas filed a request to reopen
his 1971 claim. J.A. 163–202, 116–50. This time, he sub-
mitted service department records that were not before the
VA in 1971. J.A. 169–202, 116–50. These service depart-
ment records include, inter alia, information about the
1961 plane crash, the changes in Mr. Thomas’ personality
before and after the crash, and evaluations of Mr. Thomas’
performance in service. E.g., J.A. 116–50, 169–91.
In November 2014, the VA granted Mr. Thomas service
connection for post-traumatic stress disorder (“PTSD”),
with an effective date of June 16, 2014. J.A. 106–12. The
VA based its decision on a review of the evidence, which
included (1) the service department records Mr. Thomas
submitted in June 2014 and (2) the VA’s PTSD examina-
tion of Mr. Thomas, which diagnosed him with the disor-
der. J.A. 113–14.
Mr. Thomas filed a timely Notice of Disagreement,
seeking an earlier effective date. J.A. 104–05. The VA is-
sued a Statement of the Case which, while increasing the
disability rating for his PTSD, continued to deny an effec-
tive date earlier than June 2014. J.A. 71–99. The VA
acknowledged that Mr. Thomas had submitted his service
department records, and that he had argued that under 38
C.F.R. § 3.156(c), those records showed entitlement to an
earlier effective date. 1 J.A. 4, 99.

1 Under 38 C.F.R. § 3.156(c)(1), if the “VA receives or
associates with the claims file relevant official service de-
partment records that existed and had not been associated
with the claims file when VA first decided the claim, VA
will reconsider the claim.” Additionally, “[a]n award made
based all or in part” on these service department records
“is effective on the date entitlement arose or the date VA
received the previously decided claim, whichever is later.”
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4 THOMAS v. MCDONOUGH

The VA found that the service department records
would not have changed the 1971 denial of service connec-
tion because they did not counter the determination that
Mr. Thomas’ in-service psychiatric problems were due to
an “emotionally unstable personality,” which was not con-
sidered a disability for VA compensation purposes. J.A. 99.
The VA also concluded that the service department records
“were not a factor in the grant of benefits at this time.” J.A.
99.
Mr. Thomas appealed to the Board of Veterans’ Ap-
peals (“Board”). J.A. 68–69. The Board agreed with the
VA’s denial of an earlier effective date for the grant of ser-
vice connection for PTSD. J.A. 54–67. The Board found no
evidence of an unadjudicated claim for service connection
for PTSD between the March 1971 rating decision and
June 2014 that might justify an earlier effective date.
J.A. 58–59. The Board decision did not address Section
3.156(c) or Mr. Thomas’ newly added service department
records. J.A. 54–67. Mr. Thomas appealed the Board’s de-
cision to the U.S. Court of Appeals for Veterans Claims
(“Veterans Court”).
Before the Veterans Court, Mr. Thomas argued that
the Board violated its statutory duty under 38 U.S.C.
§ 7104(d)(1) to provide a written statement of its findings,
and its reasons and bases for those findings, concerning “all
material issues of fact and law presented on the record.”
J.A. 49 (citing 38 U.S.C. § 7104(d)(1)). According to Mr.
Thomas, this statutory duty required the Board to consider

38 U.S.C. § 3.156(c)(3). “In other words, § 3.156(c) serves
to place a veteran in the position he would have been had
the VA considered the relevant service department record
before the disposition of his earlier claim.” Blubaugh v.
McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014).
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THOMAS v. MCDONOUGH 5

his arguments concerning Section 3.156(c), which applied
to the facts of his case. Mr. Thomas also argued this stat-
utory duty required the Board to consider his service de-
partment records, which had existed at the time of the VA’s
original denial in 1971 but had not yet been associated with
his claims file. Mr. Thomas noted that these service de-
partment records served as a partial basis for his eventual
grant of PTSD in November 2014. Finally, Mr. Thomas ar-
gued that the Board’s errors prejudiced him. According to
Mr. Thomas, had the Board properly considered that his
service department records that were not associated with
his claims file until 2014, the Board likely would not have
concluded that “June 16, 2014, is the earliest possible ef-
fective date for the grant of service connection for PTSD.”
J.A. 52 (quoting J.A. 59).
The Veterans Court affirmed the Board’s decision. The
Veterans Court determined that the Board did not err in
failing to discuss Section 3.156(c)(1) because this regula-
tion only applies to “relevant” service records. The Veter-
ans Court noted that Mr. Thomas “offer[ed] no argument
that his service records were in any way relevant” to the
VA’s denial of his 1971 claim. For this reason, the VA con-
cluded that Mr. Thomas had not shown that the Board
committed prejudicial error in failing to discuss Section
3.156(c)(1).
The Veterans Court also determined that the Board did
not err in failing to discuss Mr. Thomas’ service depart-
ment records. The Veterans Court explained that “Mr.
Thomas has neither shown nor argued that the service de-
partment records . . . were ‘favorable’ evidence and that
the Board was thus required to discuss them.” J.A. 5.
Mr. Thomas appeals. We have jurisdiction under 38
U.S.C. § 7292(c).
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6 THOMAS v. MCDONOUGH

STANDARD OF REVIEW
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Gazelle v. Shulkin, 868 F.3d
1006, 1009 (Fed. Cir. 2017). 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).
DISCUSSION
Mr. Thomas argues that the Veterans Court errone-
ously applied a more stringent legal standard than what is
required under 38 U.S.C. § 7104. Section 7104(d) governs
the Board’s statutory duty to consider “applicable” regula-
tions and provide a written statement on “all material is-
sues of fact and law.” Specifically, Mr. Thomas argues that
the Veterans Court improperly read into this provision a
new and limiting requirement—that the Board need only
address “favorable” or “relevant” evidence in its written de-
cision. We agree with Mr. Thomas and thus vacate the Vet-
erans Court’s decision and remand.
When deciding a veteran’s appeal, the Board’s decision
“shall include” a “written statement of the Board’s findings
and conclusions, and the reasons or bases for those findings
and conclusions, on all material issues of fact and law pre-
sented on the record.” 38 U.S.C § 7104(d) (emphasis
added). At the Veterans Court, this provision means that
the Board must address in its written statement all regu-
lations that are “made potentially applicable through the
assertions and issues raised in the record.” Schafrath v.
Derwinski, 1 Vet. App. 589, 593 (1991). We see no reason
to depart from the Veterans Court’s “potentially applica-
ble” standard, which supports 38 U.S.C § 7104(d)’s goal of
providing veterans with a fulsome and clear decision of
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THOMAS v. MCDONOUGH 7

their claims. 2 In doing so, we are not eliminating or even
modifying the Veterans Court’s obligation to place the bur-
den of proof for showing prejudicial error on appeal on the
appellant, as the Veterans Court here correctly did. See
J.A. 4–5; 38 U.S.C. § 7261(b)(2).
Here, Mr. Thomas undisputedly raised Section 3.156(c)
and his service department records before the Board. The
Board did not address these two points in its decision. The
Veterans Court recognized the Board’s duty under
38 U.S.C. § 7104 to provide a written determination with
adequate reasons or bases for its determination. The Vet-
erans Court also recognized that this duty requires the
Board to “address all regulations made potentially applica-
ble by assertions and issues raised in the record.” J.A. 4.
The Veterans Court, however, excused the Board’s silence
because Mr. Thomas did not allegedly argue the “rele-
vance” of Section 3.156(c) or his service department records
in his briefing on appeal. J.A. 4. The Veterans Court also
faulted Mr. Thomas for failing to show how his service de-
partment records were “favorable” evidence. J.A. 5. These

2 Section 7104(d)(1) was “designed to promote the de-
velopment of a record of the agency proceedings that would
permit a reviewing court to understand and evaluate the
proceedings as part of its review.” S. Rep. No. 100–418, at
37–38 (1988). The Board’s required statement of reasons
or bases would assist veterans to “understand the Board’s
response to the various arguments advanced by the [vet-
eran],” and use this understanding “to make an informed
decision on whether or not to request court review.” Id. at
38. “[B]are conclusory statement[s]” in Board decisions
would cut against the purpose of Section 7104(d)(1). Jen-
nings v. Mansfield, 509 F.3d 1362, 1366 (Fed. Cir. 2007)
(quoting Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990)).
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8 THOMAS v. MCDONOUGH

statements indicate that the Veterans Court erroneously
applied a standard considerably more stringent than re-
quired under 38 U.S.C. § 7104. As explained above, Sec-
tion 7104 requires the Board to consider all “potentially
applicable” regulations raised in the record, not merely
those that the veteran has shown to be relevant or favora-
ble in his briefing before the Board.
The government argues that we lack jurisdiction over
this appeal because the Veterans Court’s decision was
merely a “[s]traightforward [a]pplication [o]f Kisor II” to
the facts of Mr. Thomas’ appeal. Appellee Br. 14. The gov-
ernment’s argument is unavailing. In Kisor II, this court
interpreted the meaning of a “relevant” service department
record under 38 C.F.R. § 3.156(c). Kisor v. McDonough, 995
F.3d 1316, 1322 (Fed. Cir. 2021). As discussed supra, Sec-
tion 3.156(c) provides that the VA may reconsider a previ-
ously decided claim and retroactively set an earlier
effective date when “relevant” service department records
are associated with the claims file. Here, the Board never
made a finding of fact as to the relevancy of Mr. Thomas’
service department records to his denied 1971 claim, as re-
quired under Section 3.156(c) and Kisor II. Because the
Board has not made this factual determination in the first
instance, the Veterans Court is statutorily prohibited from
doing so. 38 U.S.C. § 7261(c); Deloach v. Shinseki, 704 F.3d
1370, 1380 (Fed. Cir. 2013). Thus, contrary to the govern-
ment’s position, the Veterans Court’s decision cannot be
characterized as an application of Kisor II to Mr. Thomas’
case.
On remand, the Veterans Court is instructed to re-
mand the case to the Board to provide an adequate written
statement of its reasons and bases concerning Mr. Thomas’
claim for an earlier effective date for his PTSD. The Board
must consider Mr. Thomas’ arguments concerning Section
3.156(c) and his service department records under the ap-
propriate legal standard contained in 38 U.S.C. § 7104(d).
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THOMAS v. MCDONOUGH 9

CONCLUSION
We have considered the government’s remaining argu-
ments and find them unpersuasive. We vacate the decision
of the Veterans Court and remand for further action con-
sistent with this decision.
VACATED AND REMANDED
COSTS
Costs to Mr. Thomas.