Herbie D. Vest v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HERBIE D. VEST,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1869
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-792, Judge Coral Wong Pietsch.
______________________
Decided: March 8, 2024
______________________
AMANDA SUNDAY , GloverLuck, LLP, Dallas, TX, argued
for claimant-appellant. Also represented by ADAM R. L UCK.
D ANIEL F ALKNOR, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, ERIC P. BRUSKIN, P ATRICIA M.
MCCARTHY ; CHRISTINA L YNN G REGG, Y. K EN L EE , Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 22-1869 Document: 40 Page: 1 Filed: 03/08/2024

-- 1 of 8 --

VEST v. MCDONOUGH 2
______________________
Before D YK, CLEVENGER , and CHEN, Circuit Judges.
CLEVENGER , Circuit Judge
Herbie D. Vest (“Vest”) appeals from the final decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) which dismissed Vest’s appeal for lack
of jurisdiction.
I. BACKGROUND
Vest served on active duty in the United States Army
from October 6, 1966, to May 24, 1971. J.A. 11. In May
1971, Vest filed a claim for service connection for hearing
loss and “ringing in the ears.” J.A. 12. In a September 15,
1971, rating decision, the Veterans Administration Re-
gional Office (“RO”) granted service connection for bilateral
hearing loss and tinnitus, each rated at 0%. J.A. 14–15.
Subsequently, in a December 17, 1971, decision, the RO de-
nied a request for an increased rating for bilateral hearing
loss. J.A. 16.
Vest sent a letter which was received by the RO on
March 10, 1972, (“March 1972 Letter”) which said that “[i]n
your letter, dated December 17, 1971 you stated that my
bilateral hearing loss continues to 0% . . . . I believe that
there may be an error.” J.A. 17. His letter also said that
he had “constant ringing in [his] ears.” J.A. 17.
On January 28, 2016, Vest filed a separate claim for
compensation for Meniere’s disease and “ears-ringing.”
J.A. 23, 25. In a July 14, 2016, rating decision, the RO
granted service connection for Vest’s “[M]eniere[’]s disease
with bilateral hearing loss, tinnitus, and vertigo (claimed
as ears ringing and dizziness),” with a 60% disability rating
effective December 10, 2015. J.A. 36–37, 109. Vest dis-
puted this rating, and on November 23, 2018, the RO con-
tinued the rating at 60% for Meniere’s disease. J.A. 53–54.
Case: 22-1869 Document: 40 Page: 2 Filed: 03/08/2024

-- 2 of 8 --

VEST v. MCDONOUGH 3
On April 8, 2019, Vest sent a letter to the Department
of Veterans Affairs (“VA”) which argued that his March
1972 Letter was “disagreeing with the December 17, 1971
Decision and expressing his belief that it contained an er-
ror.” J.A. 61. Therefore, Vest argued that the March 1972
Letter “to the VA was a NOD under the applicable regula-
tions at the time, as it was a written communication ex-
pressing dissatisfaction and disagreement with the VA’s
noncompensable evaluation for his tinnitus.” J.A. 61. Vest
further argued that “[b]ecause [the] VA did not address Mr.
Vest’s NOD, it remains pending.” J.A. 61. On February 4,
2020, the RO responded that Vest’s letter “was not ac-
cepted as a Notice of Disagreement since you did not state
that you were disagreeing with our decision.” J.A. 63.
In response, on June 4, 2020, Vest filed an NOD with a
VA Form 10182 (“2020 NOD”) limited to “[w]hether the
Veteran’s March 10, 1972 letter constituted a NOD and
whether the NOD remains pending.” J.A. 65.
On appeal, the Board of Veterans’ Appeals (“Board”)
found that the March 1972 Letter “expressed dissatisfac-
tion only with a December 1971 administrative decision,
which denied an increased rating for a hearing loss disabil-
ity but did not adjudicate entitlement to an increased rat-
ing for tinnitus.” J.A. 66. The Board further explained that
“although the Veteran discussed tinnitus in his letter and
it was received within one year of the September 1971 rat-
ing decision, there was no expressed disagreement or dis-
satisfaction of a decision by the [RO] regarding tinnitus,
and the NOD is limited to entitlement to an increased rat-
ing for a hearing loss disability.” J.A. 69.
Vest’s appeal of the Board’s October 13, 2020, decision
did not challenge the Board’s decision that he never had
filed an NOD with his May 1971 tinnitus claim. Instead,
Vest limited his appeal to whether his tinnitus claim was
still pending because he did not receive a notice of appeal
Case: 22-1869 Document: 40 Page: 3 Filed: 03/08/2024

-- 3 of 8 --

VEST v. MCDONOUGH 4
rights with respect to the September 1971 rating decision.
J.A. 79–81, 101–105.
The Veterans Court dismissed the appeal, holding that
it did not have “jurisdiction to address th[e] question of de-
fective notice.” Vest v. McDonough, No. 21-0792, 2022 WL
538201, at *4 (Vet. App. Feb. 23, 2022). The Veterans
Court noted that Vest did not argue that “he had submitted
an NOD with the September 1971 rating decision concern-
ing tinnitus, and he does not challenge the Board’s deter-
minations that the March 1972 NOD related only to the
December 1971 decision denying an increased rating for
hearing loss and that the March 1972 filing was not an
NOD with the September 1971 rating decision concerning
tinnitus.” Id. Therefore, the Veterans Court held that Vest
“abandoned the issue [of] whether the March 1972 filing
was an NOD with a VA initial decision concerning tinni-
tus.” Id.
The Veterans Court entered judgment on March 17,
2022. Vest timely appealed the Veterans Court’s decision
to this court, and we have jurisdiction under 38 U.S.C.
§ 7292(a).
II. D ISCUSSION
This court has jurisdiction to review “the decision [of
the Veterans Court] with respect to the validity of a deci-
sion of the [Veterans] Court on a rule of law or of any stat-
ute or regulation . . . or any interpretation thereof (other
than a determination as to a factual matter) that was relied
on by the [Veterans] Court in making the decision.” 38
U.S.C. § 7292(a). Whether the Veterans Court has juris-
diction is a matter of statutory interpretation that this
court reviews de novo. Andre v. Principi, 301 F.3d 1354,
1358 (Fed. Cir. 2002) (“We review legal issues, including
whether the Veterans Court properly declined to assert ju-
risdiction . . . without deference.”).
Case: 22-1869 Document: 40 Page: 4 Filed: 03/08/2024

-- 4 of 8 --

VEST v. MCDONOUGH 5
With respect to RO decisions subject to review by the
Board, “[a]ppellate review shall be initiated by the filing of
a[n NOD].” 38 U.S.C. § 7105(a); Ledford v. West, 136 F.3d
776, 779 (Fed. Cir. 1998) (“An NOD is required to initiate
the appellate review process . . . .”). “[NODs] shall be in
writing, [and] shall identify the specific determination with
which the claimant disagrees . . . .” 38 U.S.C.
§ 7105(b)(2)(A).
An NOD is the instrument that declares a veteran’s in-
tention to seek appellate review of a decision and initiates
the Board’s jurisdiction over a veteran’s claim. See Hamil-
ton v. Brown, 39 F.3d 1574, 1575 (Fed. Cir. 1994) (“The
[VA] . . . long utilized a document called the [NOD] as the
vehicle by which a veteran, aggrieved by the initial deter-
mination of a [VA] office, would announce the intention to
administratively appeal that initial determination.”); Cox
v. West, 149 F.3d 1360, 1365 (Fed. Cir. 1998) (“[T]here
[was] no jurisdiction-conferring NOD . . . that would have
supplied the Board with jurisdiction over [the] claim”);
Buckley v. West, 12 Vet. App. 76, 82 (1998) (“Just as the
[Veterans] Court’s jurisdiction is dependent on a jurisdic-
tion-conferring NOD, the Board’s jurisdiction, too, derives
from a claimant’s NOD.”).
The Veterans Court has jurisdiction to review decisions
of the Board. 38 U.S.C. § 7252(a). A Board decision results
from appellate review by the Board of agency action after
the filing of a valid NOD. When, as in this case, it is estab-
lished that a valid NOD has not been filed with respect to
a veteran’s claim, and as a result the Board has not issued
a decision concerning the claim, the Veterans Court lacks
jurisdiction over the claim.
Ledford clearly governs this appeal. In that case, the
veteran initially was awarded a 100% disability rating
based on individual unemployability. Ledford, 136 F.3d at
777. Subsequently, that rating was terminated and
changed to a schedular rating that was for a time reduced
Case: 22-1869 Document: 40 Page: 5 Filed: 03/08/2024

-- 5 of 8 --

VEST v. MCDONOUGH 6
to 70% before being increased back to 100% as a result of
two NODs filed by the veteran which contested the reduc-
tion of the schedular rating. Id. The veteran later sought
an earlier effective for his benefits on the ground that the
termination of his individual unemployability benefits was
unlawful. Id. at 778. The RO and the Board denied his
earlier effective date claim, and the Veterans Court held
that it lacked jurisdiction over the veteran’s appeal. Id.
Because the veteran never filed an NOD contesting the va-
lidity of termination of his individual unemployability ben-
efits, and the Board never issued a decision concerning that
termination, the Veterans Court lacked jurisdiction over
the veteran’s claim. Id. at 779 (“In short, there was no
Board decision for the [Veterans Court] to review concern-
ing the propriety of the termination, and thus the court had
no jurisdiction to consider that issue.”). The decision in
Ledford held that jurisdiction in the Veterans Court was
additionally lacking because the veteran could point to no
NOD expressing disagreement with the conversion of his
unemployability rating to a schedular one. Id. (“An NOD
is required to initiate the appellate review process, 38
U.S.C. § 7105(a) . . . .”).
In this case, Vest acknowledges that the jurisdiction of
the Veterans Court depends on a valid NOD and a decision
by the Board on the matter in question. Appellant’s Open-
ing Br. at 16.
Despite this acknowledgement and the absence of any
challenge to the Board’s holding that no NOD exists as to
his 1971 tinnitus claim, Vest argues that the Veterans
Court should have exercised its discretion to consider his
claim that the 1971 tinnitus claim remains open because of
a failure of the agency to provide him with notice of appeal
rights at the time that claim was initially denied. He also
claims a basis for jurisdiction in the Veterans Court under
AG v. Peake, 536 F.3d 1306 (Fed. Cir. 2008), a case in which
this court vacated a decision of the Veterans Court and re-
manded the issue of whether the veteran’s claim remained
Case: 22-1869 Document: 40 Page: 6 Filed: 03/08/2024

-- 6 of 8 --

VEST v. MCDONOUGH 7
open due to the failure of the agency to give notice of appeal
rights. Id. at 1310–11.
Vest is correct in arguing that the Veterans Court has
a measure of discretion to consider arguments raised to it
for the first time, (see, e.g., Maggitt v. West, 202 F.3d 1370,
1378 (Fed. Cir. 2000)) such as his argument that he was
denied appeal rights by the RO when his tinnitus claim was
rejected long ago. But such discretion can only be exercised
when the Veterans Court has jurisdiction over a veteran’s
underlying claim. Here, Vest abandoned his opportunity
to show that his March 1972 Letter was a sufficient NOD
for his tinnitus claim and failed to show a Board decision
on his claim that the Veterans Court could review, thus un-
dermining the jurisdiction for his appeal to the Veterans
Court. And on appeal, Vest argues that his April 2019 let-
ter was always about obtaining an earlier effective date for
his tinnitus claim and seems to suggest that his 2020 NOD
constituted an NOD for his tinnitus claim. Appellant’s
Opening Br. at 10; Oral Arg. at 7:46–8:40. Both the April
2019 letter and the 2020 NOD, however, were limited to
the issue of whether Vest’s March 1972 letter constituted
an NOD and did not, in themselves, express disagreement
with his tinnitus claim. AG v. Peake did provide relief
where the agency had failed to provide notice of appeal
rights to the veteran, but in that case the veteran had filed
an NOD vesting the appellate process with jurisdiction
over the subject matter of his claim. Vest’s lack of an NOD
over his 1971 tinnitus claim distinguishes him from the
veteran in AG v. Peake. Even if the failure to provide notice
of appeal rights extended the time for filing an NOD, the
fact is that Vest never filed an NOD.
After some discussion at oral argument about the pre-
cise contours of the government’s opposition to Vest’s ap-
peal here, the government argues that the absence of an
NOD on Vest’s 1971 tinnitus claim and the absence of any
decision by the Board on that matter deprive the Veterans
Court of jurisdiction over this appeal. Oral Arg. at 24:06–
Case: 22-1869 Document: 40 Page: 7 Filed: 03/08/2024

-- 7 of 8 --

VEST v. MCDONOUGH 8
24:22. Vest did not object to the refinement of the govern-
ment’s opposition at oral argument. We agree with the gov-
ernment that absence of an NOD on the 1971 tinnitus
claim and the attendant lack of any decision by the Board
on that claim defeat jurisdiction in the Veterans Court.
III. CONCLUSION
After full review of the record and Vest’s arguments,
we affirm the dismissal of the appeal by the Veterans Court
because of lack of jurisdiction.
AFFIRMED
No costs.
Case: 22-1869 Document: 40 Page: 8 Filed: 03/08/2024

-- 8 of 8 --