Kurt F. Kappen v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KURT F. KAPPEN,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-2119
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-3484, Chief Judge Michael P.
Allen.
______________________
Decided: October 8, 2025
______________________
BRUCE W. EBERT , Law Office of Dr. Bruce W. Ebert, Ro-
seville, CA, for claimant-appellant.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by MARTIN
F. HOCKEY , J R., P ATRICIA M. MCCARTHY , YAAKOV ROTH ;
J ONATHAN K RISCH , Y. K EN L EE , Office of General Counsel,
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KAPPEN v. COLLINS 2
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before M OORE, Chief Judge, P ROST , and T ARANTO, Circuit
Judges.
P ER CURIAM .
In 2019, the United States Court of Appeals for Veter-
ans Claims (Veterans Court) rejected all the grounds on
which veteran Kurt Kappen challenged a 2018 decision by
the Board of Veterans’ Appeals (Board) adjudicating cer-
tain claims he presented for disability benefits. Kappen
v. Wilkie, No. 18-3484, 2019 WL 3949462 (Vet. App. Aug.
22, 2019) (2019 CAVC Decision). Ms. Noelle Kappen, who
is Mr. Kappen’s surviving spouse, appeals the Veterans
Court’s ruling, pressing her deceased husband’s claim for
accrued disability benefits. Ms. Kappen presents several
challenges to the Veterans Court’s decision. We conclude
that we lack jurisdiction in part and otherwise affirm.
I
Mr. Kurt F. Kappen served on active duty in the United
States Air Force from September 12, 1991, to September
30, 2011. On October 25, 2011, he filed with the United
States Department of Veterans Affairs (VA) an informal
claim for disability benefits. J.A. 247. As relevant here,
his follow-up formal claim, filed the next summer, specified
a low-back condition as a basis for such benefits. J.A. 248.
In December 2012, the relevant VA regional office found
the asserted back condition to be service-connected and as-
signed it a ten percent disability rating effective October
2011. J.A. 247 (application date), 254–55. In October 2014,
the regional office granted Mr. Kappen a 100 percent tem-
porary convalescent rating for his low-back condition effec-
tive May 2014 to July 2014. J.A. 105. And in August 2015,
the regional office increased Mr. Kappen’s low-back rating
to forty percent retroactively to June 2, 2015. J.A. 259–62.
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KAPPEN v. COLLINS 3
Mr. Kappen appealed to the Board, and on June 13,
2017, the Board remanded the matter, as relevant here.
J.A. 263–66. The Board directed the regional office to eval-
uate the appropriate rating for Mr. Kappen’s low-back con-
dition for the period of October 2011 to June 2015
(excluding the convalescent period). J.A. 263–65. In Feb-
ruary 2018, the regional office declined to increase Mr.
Kappen’s ten percent low-back disability rating for that pe-
riod. J.A. 275.
Contemporaneously with the above proceedings, Mr.
Kappen sought disability benefits for cirrhosis of the liver.
On January 3, 2014, the regional office granted him a forty
percent disability rating for liver cirrhosis effective Janu-
ary 8, 2013. J.A. 278. In August 2015, the regional office
increased Mr. Kappen’s cirrhosis disability rating to 100
percent effective June 2, 2015. J.A. 259. Mr. Kappen ap-
pealed, and on September 28, 2016, the Board declined to
assign an effective date earlier than January 2013 for Mr.
Kappen’s cirrhosis disability benefits. J.A. 22, 37. But the
Board remanded the matter to the regional office for con-
sideration of the appropriate rating for liver cirrhosis for
the period January 2013 to June 2015. J.A. 37.
On November 1, 2016, the regional office declined to
increase the cirrhosis rating for that period, maintaining
the rating at forty percent. J.A. 303. Mr. Kappen, on No-
vember 29, 2016, filed an appeal to the Board on VA Form
9 (“Appeal to Board of Veterans’ Appeals”). J.A. 42–45.
The Board, in its June 13, 2017 ruling, remanded to the
regional office for further consideration of the rating for
January 2013 to June 2015. J.A. 263–66. And in February
2018, the regional office again declined to increase above
forty percent Mr. Kappen’s cirrhosis rating for the period
preceding June 2, 2015. J.A. 275. Mr. Kappen appealed to
the Board.
On May 4, 2018, the Board addressed issues regarding
both the low-back and liver-cirrhosis conditions. J.A. 66–
77. The Board (1) declined to increase the assigned ten
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KAPPEN v. COLLINS 4
percent rating for the back condition for the period from
October 2011 to May 2013; (2) granted a rating increase
from ten to twenty percent for the back condition from May
2013 to June 2015; and (3) granted a rating increase from
forty to seventy percent for liver cirrhosis from January
2013 to June 1, 2015. J.A. 67. The Board denied an earlier
effective date for the cirrhosis benefits because its Septem-
ber 2016 decision had denied a pre-2013 effective date and
Mr. Kappen had not appealed that decision. J.A. 68. In its
decision, the Board found that Mr. Kappen experienced
pain associated with both conditions. J.A. 70, 74–76.
Mr. Kappen appealed to the Veterans Court, which in
a single-judge decision, affirmed the Board’s ruling on Au-
gust 22, 2019. 2019 CAVC Decision, at *1–4. Among the
challenges rejected by the Veterans Court was Mr. Kap-
pen’s argument that the September 28, 2016 Board deci-
sion was not final—an argument that the Veterans Court
struck because it was not presented until Mr. Kappen’s re-
ply brief. 2019 CAVC Decision, at *3. In 2020, the Veter-
ans Court’s decision was adopted as a decision of a three-
judge panel, J.A. 7–8, the judgment became final, J.A. 9,
and Mr. Kappen timely appealed to this court under 38
U.S.C. § 7292.
II
A
On August 8, 2021, Mr. Kappen passed away while the
present appeal was pending. It is undisputed that Mr.
Kappen’s widow, Ms. Kappen, has made the appropriate
filing with VA under 38 U.S.C. § 5121 to obtain the accrued
benefits owed to her deceased husband, and she has moved
under Federal Circuit Rule 43(a)(1) to be substituted for
Mr. Kappen as appellant in this court, without opposition
from the Secretary. We grant the motion. See Rodenhizer
v. McDonough, 124 F.4th 1339, 1344–45 (Fed. Cir. 2024).
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KAPPEN v. COLLINS 5
B
Ms. Kappen asserts that the Veterans Court erred in
several respects. Our authority to review decisions of the
Veterans Court is limited. We have jurisdiction to decide
an appeal insofar as it presents a challenge to a decision by
the Veterans Court regarding a rule of law, including a de-
cision about the interpretation or validity of any statute or
regulation. 38 U.S.C. § 7292(a), (d)(1). We lack jurisdic-
tion to review a challenge to a factual determination or to
the application of a law or regulation to the facts of a par-
ticular case, except to the extent that an appeal presents a
constitutional issue. Id. § 7292(d)(2). If we have jurisdic-
tion, we must affirm a Veterans Court decision unless it is
“(A) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (B) contrary to constitu-
tional right, power, privilege, or immunity; (C) in excess of
statutory jurisdiction, authority, or limitations, or in viola-
tion of a statutory right; or (D) without observance of pro-
cedure required by law.” Id. § 7292(d)(1). We review legal
determinations of the Veterans Court de novo. Prenzler v.
Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).
1
Ms. Kappen argues that Mr. Kappen was legally enti-
tled to have his pain treated and rated as a distinct disa-
bility, separate from his low-back and liver-cirrhosis
conditions. Appellant’s Opening Br. at 5–11. She does not
deny that the Board did take account of pain in its ratings,
see J.A. 67, 69, 74, 259–62, as regulations contemplate, see,
e.g., 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.114 (Diagnostic Code
7345). She argues, however, that as a matter of law, pain
had to be treated as a separate disability, relying for that
assertion entirely on this Court’s decision in Saunders
v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).
We see no reversible error in the Veterans Court’s re-
jection of this contention. 2019 CAVC Decision, at *1–2. In
Saunders, we held that “pain alone can serve as a
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KAPPEN v. COLLINS 6
functional impairment” for purposes of VA disability bene-
fit eligibility. 886 F.3d at 1363, 1368 (emphasis added).
We need not say whether Saunders might be expanded be-
yond the circumstance, present in that case, in which no
other condition causing the pain had been identified and
held to be service-connected. Even viewing Ms. Kappen’s
argument as broadening Saunders to require separate
treatment of pain as a disability whenever pain is “inde-
pendent” of other conditions, see Appellant’s Opening Br.
at 11; J.A. 108 (argument to Veterans Court), we see no
basis for disturbing the Veterans Court’s decision here.
The Veterans Court ruled that neither the argument nor
the premise of it was presented to the Board or revealed by
the record before the Board. 2019 CAVC Decision, at *1–2.
If we may review that determination at all, Ms. Kappen
has not shown error in it. See J.A. 42–45 (November 2016
appeal to the Board on VA Form 9). Relatedly, the Veter-
ans Court determined that, given the record, including the
Board’s clear accounting for pain from the back and liver
conditions, Mr. Kappen was “essentially” asking for “dou-
ble[-]counting” of his pain for disability compensation,
which is barred by regulation. 2019 CAVC Decision, at *2
(citing 38 C.F.R. § 4.14). We have no authority to review
that characterization of what the record shows, and we see
no error in the legal assertion that, on this record, there is
no legal entitlement, under Saunders or otherwise, to dou-
ble-counting pain for compensation purposes.
2
We dismiss the appeal insofar as Ms. Kappen asserts
error by the Veterans Court in rejecting challenges to the
Board decision regarding a liver-biopsy record from 2009
not obtained for the proceeding. See 2019 CAVC Decision,
at *3. Ms. Kappen asserts that the Veterans Court should
have found violations of the duty to assist under 38 U.S.C.
§ 5103A and of the duty to provide adequate reasons and
bases under 38 U.S.C. § 7104. Appellant’s Opening Br. at
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KAPPEN v. COLLINS 7
27–38. We lack jurisdiction to review these assertions,
which at most challenge applications of law to facts.
First, although Ms. Kappen declares that “the Veter-
ans Court erred as a matter of law in requiring an imper-
missibly high threshold to trigger [ ] VA’s duty to assist,”
she concedes that the Veterans Court applied the correct
legal standard for evaluating compliance with the duty to
assist—which is limited to “obtaining only relevant rec-
ords.” Appellant’s Opening Br. at 29, 34 (citing 2019 CAVC
Decision, at *3 (emphasis in original) (internal citations re-
moved)); see Golz v. Shinseki, 590 F.3d 1317, 1320–21,
1323 (Fed. Cir. 2010). We see no legal error implicit in how
the Veterans Court applied that standard. And the appli-
cation of the relevance standard to a particular document
is a matter outside our jurisdiction. See, e.g., Glover
v. West, 185 F.3d 1328, 1333 (Fed. Cir. 1999).
Second, we are similarly foreclosed from reviewing Ms.
Kappen’s claim that the Veterans Court erred by not find-
ing that the Board provided insufficient reasons under 38
U.S.C. § 7104(d)(1) to support its decision that the 2009
liver biopsy report was irrelevant. See Appellant’s Opening
Br. at 31–33. In Cook v. Principi, we considered a similar
assertion and dismissed the appeal for lack of jurisdiction
in this court, concluding that “reviewing the Veterans
Court’s compliance with its jurisdictional statute, a seem-
ingly legal question, . . . cannot be performed . . . without
reviewing the application of the law to facts, a matter ex-
cluded from our jurisdiction by § 7292(d)(2).” 353 F.3d 937,
941 (Fed. Cir. 2003). We must dismiss Ms. Kappen’s asser-
tion in this case as well.
3
Ms. Kappen challenges the Veterans Court’s decision
to strike a portion of Mr. Kappen’s reply brief in which he
challenged the finality of the September 2016 Board deci-
sion—on which the Board, in its May 2018 decision, relied
to deny an effective date for the cirrhosis benefits before
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KAPPEN v. COLLINS 8
January 2013. 2019 CAVC Decision, at *3; J.A. 68. The
Veterans Court ruled that Mr. Kappen failed to raise that
no-finality challenge in his opening brief, where such a
challenge had to be presented. 2019 CAVC Decision, at *3.
We see no reversible error in that ruling by the Veterans
Court.
Nowhere in Mr. Kappen’s opening brief to the Veterans
Court (filed by counsel) did he challenge the Board’s May
2018 reliance, for denying a pre-2013 effective date, on the
conclusion that the Board’s September 2016 decision on the
effective-date issue was final. See J.A. 108–21. The only
issue within our jurisdiction to consider, therefore, is
whether the Veterans Court lacked legal authority to hold
that the challenge could not be presented for the first time
in the reply brief. We see no legal error in that holding. It
is well established that the Veterans Court possesses such
authority, which is a familiar means by which appellate
courts generally ensure orderly and fair practice. Carbino
v. West, 168 F.3d 32, 34–35 (Fed. Cir. 1999). “The statutory
language of [38 U.S.C.] § 7261 requiring legal issues to be
decided by the [Veterans Court] ‘when presented’ and the
compelling precedent that appellate courts should not con-
sider an issue or argument raised for the first time in a re-
ply brief” support the determination that the Veterans
Court can “decline[ ] to consider [ ] untimely contentions.”
Id. at 35. We see nothing in Ms. Kappen’s arguments, Ap-
pellant Opening Br. at 11–17, 24–27, 39–50, to call for a
different conclusion here.
4
Ms. Kappen’s final argument concerns the cirrhosis
disability and involves 38 U.S.C. § 5110(b)(1), which allows
disability compensation back to the day after the date of
discharge or release from service if a claim is received
within one year of the discharge or release date. Mr. Kap-
pen completed his service in September 2011 and filed for
benefits based on cirrhosis in January 2013, beyond the
one-year period. In the Veterans Court, seeking to have
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KAPPEN v. COLLINS 9
the benefits go back to September 2011, Mr. Kappen ar-
gued for tolling of the one-year filing clock of § 5110(b)(1)
on the ground that Mr. Kappen “lacked competence from
May 2012 through December 2012.” 2019 CAVC Decision,
at *3. He made that argument even though he did file for
disability benefits based on other conditions within the
year following discharge/release, starting in October 2011
and into the summer of 2012. J.A. 247–48. The Veterans
Court rejected the request for equitable tolling as legally
unavailable. 2019 CAVC Decision, at *3.
In 2023, the Supreme Court held that equitable tolling
is indeed unavailable. Arellano v. McDonough, 598 U.S. 1,
14 (2023) (concluding that the “text and structure [of 38
U.S.C. § 5110(b)(1)] [ ] foreclose equitable tolling”). Ms.
Kappen now argues that the Due Process Clause of the
Fifth Amendment nevertheless compels tolling of the one-
year filing clock of section 5110(b)(1). Appellant’s Opening
Br. at 50–56. We see no substantial basis for this constitu-
tional assertion. The argument is not based on any affirm-
ative government interference with a potential claimant’s
filing within the statutory period, but only on circum-
stances involving the familiar “possibility that disability
[itself] could cause delay” in filing—a possibility that Con-
gress contemplated but did not incorporate as an exception
in setting the one-year deadline in section 5110(b)(1). Arel-
lano, 598 U.S. at 14; compare Taylor v. McDonough, 71
F.4th 909 (Fed. Cir. 2023) (en banc). Ms. Kappen has iden-
tified no authority for finding a constitutional violation in
these circumstances.
III
For the foregoing reasons, we dismiss Ms. Kappen’s
challenges to the Veterans Court’s findings relating to the
relevancy of the 2009 medical report and otherwise affirm
the Veterans Court’s 2019 decision.
The parties shall bear their own costs.
AFFIRMED IN PART AND DISMISSED IN PART
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