James B. Messer v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES B. MESSER,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1543
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-3353, Chief Judge Margaret C.
Bartley.
______________________
Decided: February 10, 2025
______________________
K ENNETH D OJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
MARTIN F. H OCKEY , J R., Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, G ALINA I. F OMENKOVA, P ATRICIA M.
MCCARTHY , L OREN MISHA P REHEIM ; BRIAN D. G RIFFIN,
Case: 23-1543 Document: 63 Page: 1 Filed: 02/10/2025

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MESSER v. COLLINS 2
ANDREW J. STEINBERG, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
Before L OURIE, MAYER, and P ROST , Circuit Judges.
L OURIE, Circuit Judge.
James B. Messer appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) affirming the decision of the Board of Vet-
erans’ Appeals (“the Board”) declining to reopen Messer’s
previously denied claim for service connection for sleep ap-
nea. Messer v. McDonough, No. 21-3353, 2022 WL 3909086
(Vet. App. Aug. 31, 2022) (“Decision”).1 Because the only
argument Messer raises on appeal was not timely pre-
sented to the Veterans Court, the argument was forfeited.
We therefore affirm.
On appeal, Messer argues that the Board erred by re-
quiring him to submit new and relevant evidence in con-
nection with a supplemental claim for service connection
where the Board had already favorably determined that he
had submitted such evidence in connection with an earlier
supplemental claim. See Messer Br. 9–11, 17–19. Specifi-
cally, he asserts that the Board (and Veterans Court) mis-
interpreted 38 U.S.C. § 5104C, “as requiring a claimant to
present new and relevant evidence with respect to a sup-
plemental claim filed under [that] statute.” Messer
Br. 17–18. As we understand his argument, once the
1 Following the Veterans Court’s August 31 sin-
gle-judge decision, Messer timely moved for reconsidera-
tion or, in the alternative, a panel decision. A panel
convened and denied Messer’s motion for reconsideration
but granted his motion for a panel decision. The panel or-
dered that the single-judge decision “remain[ed] the deci-
sion of the Court.” J.A. 2–3.
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MESSER v. COLLINS 3
Board has favorably determined that new and relevant ev-
idence has been submitted, any subsequent supplemental
claim, regardless whether new and relevant evidence has
been submitted with that claim, “‘relates back to’ the initial
claim that has been continuously pursued.” Id. at 18; Mes-
ser Reply Br. 1 (“With this appeal, Mr. Messer asks this
Court to find that the plain meaning of 38 U.S.C.
§ 5104C . . . requires that a claimant need only produce
new and relevant evidence with his supplemental claim
once to obtain readjudication[.]” (emphasis added)).
Messer’s statutory argument was available at the time
he appealed to the Veterans Court. But that is not the ar-
gument he made. Instead, he argued that the Board erred
by, among other things, not considering whether there
were any duty-to-assist errors present in earlier decisions
of the Department of Veterans Affairs. Decision, at *2. He
also argued that the Board failed to assist in the develop-
ment of a reasonably raised claim for secondary service
connection for sleep apnea, and that the Board provided in-
adequate reasons why the evidence submitted between the
notices of denial of his first and second supplemental
claims was not new and relevant. Id. at *3. Even constru-
ing those arguments liberally, none comes close to resem-
bling the statutory argument he raises to this court. We
decline to consider Messer’s argument in the first instance.
See Gurley v. McDonough, 23 F.4th 1353, 1357 (Fed. Cir.
2022) (arguments not raised in the Veterans Court are for-
feited).
Accordingly, we affirm the decision of the Veterans
Court.
AFFIRMED
COSTS
The parties shall bear their own costs.
Case: 23-1543 Document: 63 Page: 3 Filed: 02/10/2025

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