Sandra O’banion v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SANDRA O’BANION,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2069
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-1090, Judge Scott Laurer.
______________________
Decided: May 22, 2025
______________________
J. BRYAN J ONES , III, J B Jones III LLC, Lafayette, LA,
for claimant-appellant.
STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, WILLIAM J AMES G RIMALDI,
P ATRICIA M. MCCARTHY ; BRIAN D. G RIFFIN, BENJAMIN
I SAAC HERSKOVITZ, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
Case: 23-2069 Document: 39 Page: 1 Filed: 05/22/2025

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O’ BANION v. COLLINS 2
______________________
Before REYNA, CUNNINGHAM , and STARK, Circuit Judges.
REYNA, Circuit Judge.
Sandra O’Banion appeals from a final decision of the
U.S. Court of Appeals for Veterans Claims denying an ear-
lier effective date for service-connected lung cancer. For
the reasons set forth below, we affirm.
BACKGROUND
The appellant, Sandra O’Banion, is the surviving
spouse of United States Marine Corps Veteran Bob J.
O’Banion (the “veteran”). Appx1.1 The veteran served on
active duty from January 1968 to January 1972. Appx9.
In July 2003, the veteran was diagnosed with lung cancer.
Appx10.
On April 15, 2005, the veteran filed an “informal claim”
for disability compensation for cancer with the U.S. De-
partment of Veterans Affairs (“VA”).2 Appx15–18; Appx8.
On April 23, 2005, the VA responded via letter that the vet-
eran had to “[c]omplete and return the enclosed . . . VA
Form 21-526.” Appx19. The VA listed “VA Form 21-526”
under “Enclosures” at the end of the letter. Appx22. Ac-
cording to Ms. O’Banion, the VA did not enclose VA Form
21-526 with this letter. Appellant Br. 2.
1 “Appx” refers to the “Corrected Appendix” submit-
ted by appellant.
2 Effective March 24, 2015, the VA amended its reg-
ulations to require that all claims be filed on a standard
form, and, thus, the VA did away with the divide between
informal and formal claims. Appx 11. These amendments
apply only to claims filed on or after March 24, 2015. Id.
Because the veteran’s claim was received by the VA prior
to March 24, 2015, the former regulations apply here. Id.
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O’ BANION v. COLLINS 3
In June 2007, the veteran submitted his completed VA
Form 21-526, i.e., his “formal claim.” Appx2. In October
2007, the VA regional office (“RO”) issued a rating decision
granting service connection for lung cancer with an effec-
tive date of June 7, 2007. Id. In June 2008, the veteran
sought an earlier effective date of April 15, 2005, the date
of his informal claim. Id.; Appx9. In August 2008, the vet-
eran passed away, at which point, Ms. O’Banion took over
his claim as the surviving spouse for accrued benefits pur-
poses. Appx9.
In March 2019, after several years of delay for reasons
not clear in this record, the RO denied an earlier effective
date. Appx2. Ms. O’Banion appealed to the Board of Vet-
erans’ Appeals (the “Board”). Appx8–14. The Board denied
her request for an earlier effective date, explaining that the
then-governing regulations allowed for an earlier effective
date based on an informal claim so long as the formal claim
was filed no later than one year after the informal claim.
Appx10–11. The Board explained that the June 7, 2007,
formal claim was filed more than one year after the April
15, 2005 informal claim and thus, Ms. O’Banion was not
entitled to an April 15, 2005 effective date. Appx11.
Ms. O’Banion appealed to the U.S. Court of Appeals for
Veterans Claims (“Veterans Court”). Appx1. Ms. O’Banion
argued that the veteran did not complete a formal claim
within one year of his informal claim because the VA failed
to send him the VA Form 21-526 with the April 23, 2005
letter. Appx3–4. Ms. O’Banion argued that the date of the
informal claim is therefore the appropriate effective date.
Appx4. The government argued that the presumption of
regularity applied, such that the VA was presumed to have
sent the veteran the VA Form 21-526 with the April 23,
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O’ BANION v. COLLINS 4
2005 letter, and that Ms. O’Banion failed to rebut the pre-
sumption.3 Id.
Ms. O’Banion responded that the presumption is not
applicable here, or alternatively, assuming the presump-
tion applied, she sufficiently rebutted it. Appx5–6.
Ms. O’Banion argued that she presented evidence of nonre-
ceipt, namely that the veteran’s claims file with the agency
contains the April 23, 2005 letter, but does not contain a
blank VA Form 21-526. Appx5. Thus, according to
Ms. O’Banion, the claims file is evidence of irregularity
that rebuts the presumption. Appx5–6.
The Veterans Court affirmed the Board’s decision.
Appx7. The Veterans Court reasoned that the presump-
tion applied and that Kyhn v. Shinseki, 716 F.3d 572
(Fed. Cir. 2014), a case Ms. O’Banion relied on, was inap-
plicable. Appx5. The Veterans Court also determined that
the absence of the VA Form 21-526 in the veteran’s claims
file was insufficient evidence to rebut the presumption of
regularity. Appx6–7. In so deciding, the Veterans Court
took judicial notice of the VA Adjudications Procedures
Manual, M21-1 (“M21-1 Manual”), which noted the VA’s
practice of affirmatively not including blank forms in vet-
erans’ claims files. Appx6. Thus, according to the Veterans
Court, Ms. O’Banion failed to rebut the presumption of reg-
ularity “either through additional evidence or by showing
a clear irregularity in the record [.]” Appx7.
Ms. O’Banion appeals. We have jurisdiction pursuant
to 38 U.S.C. § 7292(c).
3 “The presumption of regularity provides that, in
the absence of clear evidence to the contrary, the court will
presume that public officers have properly discharged their
official duties.” Miley v. Principi, 366 F.3d 1343, 1347
(Fed. Cir. 2004).
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O’ BANION v. COLLINS 5
D ISCUSSION
I.
We have limited appellate jurisdiction over appeals
from the Veterans Court. Sullivan v. McDonald, 815 F.3d
786, 788–89 (Fed. Cir. 2016). 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 the application of law to fact, except to the extent
an appeal presents a constitutional issue. Id. § 7292(d)(2).
II.
Ms. O’Banion argues that the Veterans Court ran afoul
of Kyhn by (1) misapplying the presumption of regularity
and (2) improperly taking judicial notice of the M21-1 Man-
ual.4 We address each argument in turn.
A.
Ms. O’Banion argues that under Kyhn, the presump-
tion of regularity does not apply here because the VA is not
legally required to exclude blank forms from a veteran’s
claims file. Appellant Br. 9. Ms. O’Banion, however, mis-
reads Kyhn and misunderstands the agency action subject
to the presumption.
4 To the extent that Ms. O’Banion argues that she
sufficiently rebutted the presumption of regularity, we de-
cline to address this argument, which falls outside of our
jurisdiction. See Echevarria-N. v. Shinseki, 437 F. App’x
941, 946 (Fed. Cir. 2011) (“Whether specific evidence of an
agency’s normal course of business is sufficient to trigger
the presumption of regularity is a factual determination
beyond our jurisdiction.”).
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O’ BANION v. COLLINS 6
In Kyhn, the Veterans Court erred when it improperly
found a fact in the first instance, an error which tainted its
application of the presumption of regularity. 716 F.3d 572,
577–78 (Fed. Cir. 2013). There, the veteran argued for the
first time on appeal to the Veterans Court that he had not
received notice from the VA about a scheduled VA medical
examination. Id. at 574. To determine whether the pre-
sumption of regularity applied, the Veterans Court ordered
the VA to provide the court with information concerning
the process by which the VA notified veterans of scheduled
examinations. Id. at 574. The VA then submitted two af-
fidavits of VA employees. Id. Relying on this evidence, the
Veterans Court found in the first instance that the VA had
a regular practice of providing veterans with notice and
then applied the presumption of regularity. Id.
We concluded that the Veterans Court’s fact finding in
the first instance exceeded its jurisdiction to review deci-
sions of the Board based on the record before the Board. Id.
at 578. Notably, we distinguished Kyhn from cases where
the Veterans Court properly applied the presumption, such
as “instances where the presumption of regularity was
premised upon independent legal authority” rather than on
inappropriately found facts. Id. at 577.
Unlike in Kyhn, the Veterans Court did not premise the
presumption of regularity on any improperly found facts.
Rather, the Veterans Court noted that the VA had an un-
disputed legal duty under 38 U.S.C. § 5102(a) to provide
the veteran with VA Form 21-526 when the veteran filed
an informal claim. Appx5 & n.42. Based on this legal duty,
the Veterans Court concluded that the presumption of reg-
ularity applied. Id. We see no legal error in this analysis.
Additionally, Ms. O’Banion confuses the agency action
subject to the presumption of regularity. She argues that
the relevant agency action is whether the VA has a practice
of leaving out blank VA forms in veterans’ claim files. Ap-
pellant Br. 9. However, as discussed, the agency action at
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O’ BANION v. COLLINS 7
issue for purposes of the presumption is whether the VA
has a duty to send a veteran VA Form 21-526 following re-
ceipt of an informal claim. And as previously noted, the VA
had such a duty. See Appx5; see also 38 U.S.C. § 5102(a).
In sum, the Veterans Court did not err in presuming
that the VA sent VA Form 21-526 with the April 23, 2005
letter.
B.
Ms. O’Banion argues that under Kyhn, the Veterans
Court erred in taking judicial notice of the M21-1 Manual
because it is not a publicly available rule or regulation but
rather a “guidance manu[al] for VA employees.” Appellant
Br. 8. Ms. O’Banion’s argument fails.
Generally, the Veterans Court may not consider extra-
record evidence. Kyhn, 716 F.3d at 576. One exception is
for evidence that is “generally known” or “from sources
whose accuracy cannot reasonably be questioned.” Id.
(quoting Fed. R. Evid. 201); id. at 576 n.5; see also Euzebio
v. McDonough, 989 F.3d 1305, 1323 (Fed. Cir. 2021) (quot-
ing Kyhn, 716 F.3d at 576). Thus, in Kyhn, we concluded
that the Veterans Court erred in taking judicial notice of
two affidavits that were from sources not generally known
and whose accuracy could be reasonably questioned. Kyhn,
716 F.3d at 576–77. By contrast, in Euzebio, we noted that
the Veterans Court may take judicial notice of agency man-
uals when the facts contained therein are not subject to
reasonable dispute. 989 F.3d at 1323 n.9
Here, the Veterans Court did not legally err in taking
judicial notice of the M21-1 Manual. The Veterans Court
applied the correct legal standard. Appx6 (citing Kyhn, 716
F.3d at 575–76; Euzebio, 989 F.3d at 1323). And like the
agency manuals in Euzebio, the M21-1 Manual is evidence
that is appropriately subject to judicial notice. Euzebio,
989 F.3d at 1323 n.9. That the M21-1 Manual is allegedly
non-binding and just guidance material is not dispositive.
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O’ BANION v. COLLINS 8
In sum, the Veterans Court did not err when taking ju-
dicial notice of the M21-1 Manual.
CONCLUSION
We have considered Ms. O’Banion’s remaining argu-
ments and find them unpersuasive. For the reasons dis-
cussed above, we affirm the Veterans Court’s decision.
AFFIRMED
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