Yoko Carey v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
YOKO CAREY,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Defendant-Appellee
______________________
2023-2014
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-5558, Judge Amanda L. Mere-
dith.
______________________
Decided: June 6, 2025
______________________
K ENNETH M. CARPENTER , Carpenter Chartered, Tope-
ka, KS, for claimant-appellant.
EMMA E. B OND, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
BRIAN M. B OYNTON, WILLIAM J AMES G RIMALDI, P ATRICIA
M. MCCARTHY ; CHRISTINA L YNN G REGG, BRIAN D. G RIFFIN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
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CAREY v. COLLINS 2
______________________
Before P ROST , REYNA, and T ARANTO, Circuit Judges.
T ARANTO, Circuit Judge.
Timothy M. Carey served on active duty in the U.S.
Army from December 1965 to December 1968, the service
including a 16-month tour in Vietnam. In January 1971,
he submitted a claim to what is now the Department of
Veterans Affairs (VA) for disability benefits based on an
allegedly service-connected “nervous condition.” Carey v.
McDonough, No. 21-5558, 2023 WL 2534100, at *1 (Vet.
App. Mar. 16, 2023) (Decision). A VA neuropsychiatrist
diagnosed Mr. Carey with an “inadequate personality,”
and in July 1971, VA denied him disability benefits
because an “inadequate personality . . . is not a disability
under the law.” Id. Mr. Carey did not press an appeal of
that decision. Later, he was diagnosed with post-
traumatic stress disorder (PTSD) and began receiving
benefits, effective October 28, 1991.
In September 2017, Mr. Carey filed a request with the
relevant VA regional office (RO), under 38 U.S.C.
§ 5109A, for revision of the July 1971 decision based on
allegations of clear and unmistakable error (CUE). After
the RO denied Mr. Carey’s request twice, he appealed to
the Board of Veterans’ Appeals (Board). Before the Board
issued its decision, Mr. Carey passed away, and his sur-
viving spouse Yoko Carey was substituted as the claim-
ant. In April 2021, the Board ruled that the 1971 decision
implicitly denied Mr. Carey benefits for his nervous
condition and rejected the allegations of CUE. In March
2023, the Court of Appeals for Veterans Claims (Veterans
Court) affirmed the Board’s ruling. Id. We now affirm.
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CAREY v. COLLINS 3
I
A
Mr. Carey, who received a Purple Heart and other
decorations for his active-duty service, applied on January
6, 1971, for disability benefits for a service-connected
“nervous condition” and multiple burns. J.A. 21; J.A. 22–
25. A February 1971 VA neuropsychiatric examination
produced a diagnosis of “inadequate personality.” J.A.
26–27 (capitalization normalized). On July 19, 1971, the
relevant RO denied Mr. Carey’s claim, noting that inade-
quate personality was a “[c]onstitutional or developmen-
tal abnormality” and therefore “not a disability under the
law.” J.A. 27; see 38 C.F.R. § 3.303(c).
Mr. Carey sent VA a notice of disagreement on No-
vember 23, 1971, challenging VA’s denial of a “disability
award on [his] nervous condition.” J.A. 28. On December
30, 1971, the RO sent Mr. Carey a statement of the case,
describing the claim as one of “[s]ervice connection for a
nervous condition.” J.A. 29–32. In that document, VA
stated that “service connection for the claimed condition
was properly denied,” explaining that Mr. Carey’s medical
records “reflect[ed] no indication of . . . a neurotic or
psychotic condition while in service nor . . . any evidence
to indicate the existence of a psychosis to a compensable
degree within one year following separation from service”
and that Mr. Carey’s “personality difficulty is considered
a congenital or developmental abnormality and not a
disability under VA regulations.” J.A. 32. Mr. Carey did
not submit a substantive appeal according to VA proce-
dures, so on October 19, 1972, his case was closed, and
VA’s July 1971 rating decision became final. J.A. 29–30;
J.A. 103; see 38 C.F.R. §§ 3.104(a), 19.52(b), 20.1103.
In August 1975, Mr. Carey notified VA that he had
been receiving VA medical treatment since 1968 for his
nervous condition and requested that this evidence be
considered for his entitlement to benefits. Decision, at *1.
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CAREY v. COLLINS 4
On December 22, 1975, VA informed Mr. Carey that this
evidence “d[id] not warrant any change” to its earlier
denial of benefits. Id. In October 1984, Mr. Carey re-
quested that VA reopen a claim for benefits for PTSD. Id.
at *2. He underwent a VA psychiatric evaluation and was
diagnosed with chronic alcoholism, a history of substance
abuse, and passive-aggressive personality disorder. Id.
VA again denied Mr. Carey benefits, this time because he
had not been diagnosed with PTSD or another compensa-
ble disability. Id.
On October 28, 1991, Mr. Carey again sought disabil-
ity benefits. J.A. 39. A VA examination in April 1992
produced a diagnosis of PTSD. J.A. 39. On June 8, 1992,
VA granted Mr. Carey disability benefits for service-
connected PTSD, assigning him an initial rating of 50%,
effective October 28, 1991. J.A. 39–41. On February 5,
2007, Mr. Carey’s PTSD disability rating was increased to
70%, effective July 7, 2006, and he was later assigned an
entitlement to individual unemployability, also effective
July 7, 2006. J.A. 42–47; J.A. 48–50.
B
On September 14, 2017, Mr. Carey filed a request
with VA under 38 U.S.C. § 5109A, seeking revision of
VA’s July 1971 decision based on allegations of CUE, all
related to VA’s denial of benefits for his nervous condi-
tion. See J.A. 51–60. A month later, VA denied the
request. J.A. 61–64. On February 27, 2018, Mr. Carey
filed a notice of disagreement contesting VA’s denial, J.A.
65–72, and on October 24, 2018, Mr. Carey opted into
VA’s Rapid Appeals Modernization Program, seeking a
higher-level review of the denial, J.A. 73; see Veterans
Appeals Improvement and Modernization Act of 2017,
Pub. L. No. 115-55 § 4, 131 Stat. 1105, 1119–23 (2017).
On January 29, 2019, the relevant RO denied the revision
request. J.A. 74–81 (citing 38 C.F.R. §§ 4.125(a), 3.400,
3.155, 3.114).
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CAREY v. COLLINS 5
Mr. Carey timely appealed that decision to the Board.
J.A. 82–97. Mr. Carey died on July 17, 2020, J.A. 98, and
Ms. Carey soon was substituted for him as the claimant,
see J.A. 99–102; J.A. 103. On April 23, 2021, the Board
denied the CUE request, as the RO had done. J.A. 103–
19. The Board explained that although the RO in its July
1971 rating decision “did not explicitly deny a claim for a
nervous condition,” the RO did “state[] that service con-
nection was not warranted for an inadequate personality,”
and the RO “implicitly denied the claim for a nervous
condition to the extent that it denied service connection
for an inadequate personality.” J.A. 107.
Ms. Carey timely appealed the Board’s decision to the
Veterans Court. Decision, at *1. She argued that she
need not meet the standard for relief based on CUE
because VA had not actually denied Mr. Carey’s claim for
a nervous condition in its July 1971 rating decision, so the
claim had never been finally adjudicated and in fact
remained “pending and unadjudicated.” Id. at *3. In
support, Ms. Carey pointed to the fact that the record
before the Board did not include VA’s notice to Mr. Carey
of its 1971 decision. Id.; see also id. at *4–5.
On March 16, 2023, the Veterans Court affirmed the
Board’s decision. Id. at *1. Relevant here, the Veterans
Court determined that “the Board explicitly addressed
whether the 1971 rating decision” was final when it
“concluded that the RO implicitly denied the claim as part
of its determination that an inadequate personality is not
a disability under the law.” Id. at *4. The Veterans Court
also rejected Ms. Carey’s reliance, for her argument that
there was no relevant final decision in 1971, on the ab-
sence from the record of a VA notice letter regarding the
RO’s 1971 rating decision, pointing out that the record
makes plain that Mr. Carey in fact filed a notice of disa-
greement challenging the rating decision. Id. at *5. Ms.
Carey timely appealed to us. J.A. 15.
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CAREY v. COLLINS 6
II
Our authority to review decisions by the Veterans
Court is “limited by statute.” Perciavalle v. McDonough,
101 F.4th 829, 835 (Fed. Cir. 2024); see generally 38
U.S.C. § 7292. We have authority to review “the validity
of a decision of the [Veterans] Court on a rule of law or of
any statute 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). “More specifically, we
have jurisdiction ‘to determine whether the legal re-
quirement of the statute or regulation has been correctly
interpreted in a particular context where the relevant
facts are not in dispute.’” Bean v. McDonough, 66 F.4th
979, 987 (Fed. Cir. 2023) (quoting Szemraj v. Principi, 357
F.3d 1370, 1375 (Fed. Cir. 2004)). We have authority to
address “relevant questions of law” that come within the
foregoing language, 38 U.S.C. § 7292(d)(1), but when (as
in the present matter) there is no constitutional issue
presented, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case,” id. § 7292(d)(2).
Before this court, Ms. Carey takes issue only with the
Veterans Court’s conclusion affirming the Board’s deter-
mination that there was a final decision in 1971 denying
the nervous-condition claim. She makes what we view as
two assertions that legal error underlies that affirmance.
The assertions of legal error are within our jurisdiction to
address on their merits. But we conclude that she has not
shown legal error, whether the denial is viewed as an
explicit denial or as an implicit denial.
First, Ms. Carey contends in effect that, as a matter of
law, the Board may never find a final denial when the
record does not contain a notice of denial. See Carey
Opening Br. at 6–10. We see no ground for that asserted
legal rule. Such a hole in the current agency record does
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CAREY v. COLLINS 7
not establish that there was no notice (expressly stating
or implicitly conveying the denial at issue), which might
have been lost. As a logical matter, reflected in our
precedents, the presumption of regularity together with
other documentary evidence might adequately support a
determination that a notice of decision was in fact given
(even if the notice is no longer in the claims folder or
otherwise findable). See Miley v. Principi, 366 F.3d 1343,
1347 (Fed. Cir. 2004); Butler v. Principi, 244 F.3d 1337,
1339–41 (Fed. Cir. 2001). The present case is illustrative,
as it is undisputed that “the veteran filed [a notice of
disagreement] seeking to appeal the denial of benefits for
a nervous condition . . . and that the RO issued [a state-
ment of the case] denying service connection for a nervous
condition.” Decision, at *5.
Second, Ms. Carey contends that “an explicitly raised
claim cannot, as a matter of law, be implicitly denied by
government action” but rather “must be explicitly denied
by government action”—indeed, by government action
compliant with the statement-of-reasons requirements of
38 C.F.R. § 3.103 (1971). Carey Opening Br. at 14 (em-
phases omitted); see id. at 8–10. We reject this conten-
tion. For one thing, we recently held that the absence of a
notice providing explicit reasons for an implicit denial of a
claim does not legally preclude a decision from becoming
final, reasoning that it would “make[] little sense to
require an express statement of reasons separately ad-
dressing a claim that is not itself explicitly discussed.”
Steele v. Collins, 135 F.4th 1353, 1361–62 (Fed. Cir.
2025). More generally, we have long recognized that “in
certain circumstances, a claim for benefits will be deemed
to have been denied, and thus finally adjudicated, even if
[VA] did not expressly address that claim in its decision.”
Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009)
(discussing Deshotel v. Nicholson, 457 F.3d 1258 (Fed.
Cir. 2006)); see Steele, 135 F.4th at 1360–61. An implicit
denial of a claim is properly found if VA “provided suffi-
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CAREY v. COLLINS 8
cient information for a reasonable claimant to know that
he would not be awarded benefits for his asserted disabil-
ity.” Adams, 568 F.3d at 963; see Jones v. Shinseki, 619
F.3d 1368, 1373 (Fed. Cir. 2010). Ms. Carey’s second
contention, to the extent that it is an assertion of legal
error, is fundamentally inconsistent with our established
precedent recognizing implicit denials. And we lack
jurisdiction to address the application of the implicit-
denial standard to the facts of this case, turning on how a
reasonable person would understand VA’s July 1971
denial of benefits.
III
We have considered Ms. Carey’s other arguments and
find them unpersuasive. For the foregoing reasons, we
affirm the Veterans Court’s determination.
The parties shall bear their own costs.
AFFIRMED
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