Richard M. O'connell v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD M. O'CONNELL,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2199
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-477, Judge Amanda L. Mere-
dith.
______________________
Decided: February 8, 2024
______________________
RICHARD M. O'C ONNELL , Farmington Hills, MI, pro se.
J OSHUA M OORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON , T ARA K. HOGAN, P ATRICIA M.
MCCARTHY ; AMANDA BLACKMON, BRIAN D. G RIFFIN, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
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O' CONNELL v. MCDONOUGH 2
______________________
Before D YK, CLEVENGER , and CHEN, Circuit Judges.
P ER CURIAM .
Richard M. O’Connell appeals a decision of the United
States Court of Appeals for Veterans Claims (CAVC) af-
firming the decision of the Board of Veterans’ Appeals
(Board) denying a rating for gastroesophageal reflux dis-
ease (GERD) with Barrett’s esophagus in excess of 30% for
the period of May 12, 2016, to September 13, 2019. O’Con-
nell does not appeal the CAVC’s dismissal of his appeal to
that court concerning the Board’s denial of entitlement to
an initial rating in excess of 10% prior to July 1, 2014, and
in excess of 60% from July 1, 2014, to May 11, 2016, which
the CAVC dismissed as abandoned. See O’Connell v.
McDonough, 2023 WL 3143712, at *1, *4 (Vet. App. Apr.
28, 2023) (“CAVC Decision”).
BACKGROUND
A. Service and Medical Background
O’Connell served in the United States Army from Au-
gust 1969 to May 1971. Id. at *1. In October 2010, during
a Department of Veteran’s Affairs (VA) examination,
O’Connell was diagnosed with GERD, which was later clas-
sified as “highly symptomatic” in an examination in July of
2014. O’Connell, No. 200826-106207, 2020 WL 9049581,
slip op. at *1, *2–3 (B.V.A. Dec. 22, 2020) (“Board Deci-
sion”). During the July 2014 examination, the examiner
noted that O’Connell suffered “symptoms productive of con-
siderable impairment of health, persistently recurrent epi-
gastric distress, dysphagia, reflux, regurgitation, nausea
that occurs [four] or more times a year, vomiting that oc-
curs [four] or more times a year, and hematemesis that oc-
curs [two] times per year.” Id. at *3. In May of 2016,
O’Connell was hospitalized for mental health issues at a
VA facility. CAVC Decision, 2023 WL 3143712, at *1.
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O' CONNELL v. MCDONOUGH 3
From May to July of 2016, the VA medical records demon-
strated that O’Connell “denied nausea, vomiting, ab-
dominal pain, melena, hematochezia, or hematemesis”
(May 12, 2016), reported “no abdominal pain, nausea, vom-
iting, constipation, diarrhea [and showed] no blood in stool
or melena” (May 13, 2016), and “denied nausea, vomiting,
diarrhea, constipation, and anorexia-weight loss” (July
2016). Board Decision, 2020 WL 9049581, at *3. Each of
these records were created while O’Connell was being eval-
uated for psychiatric issues. CAVC Decision, 2023 WL
3143712, at *1. In August of 2016, O’Connell also “reported
that his GERD was troublesome with eating, and that
there was some occasional dysphagia.” Board Decision,
2020 WL 9049581, at *3. Records from VA treatment from
2017 to 2019 “generally note that [O’Connell] continues to
take medication for his reflux/heartburn, and that he occa-
sionally experiences dysphagia” but “do not reflect com-
plaints or findings of additional symptoms such as nausea,
vomiting, pyrosis, heartburn, regurgitation, hematemesis,
or melena and show [O’Connell] denied the presence of
many of these symptoms during routine gastrointestinal
evaluations.” Id.
B. Board Decision
In August of 2018, the Board granted O’Connell enti-
tlement to disability compensation for GERD, with Bar-
rett’s esophagus, which resulted from medications taken to
treat his service-connected psychiatric disability. CAVC
Decision, 2023 WL 3143712, at *1. Then, “[i]n September
2019, the agency of original jurisdiction (AOJ) imple-
mented the Board’s decision and assigned a 10% [disabil-
ity] rating, effective March 9, 2011, and a 30% rating,
effective July 1, 2014.” Id. In response, O’Connell filed a
Decision Review Request: Board Appeal (Notice of Disa-
greement) to request that the Board “increase his disability
rating for GERD from 30% to 60%.” Id. The Board, on De-
cember 22, 2020, granted the 60% rating for the period
from July 1, 2014, to May 11, 2016, but denied entitlement
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O' CONNELL v. MCDONOUGH 4
to a rating above 10% prior to July 1, 2014, or a rating
above 30% from May 12, 2016, to September 13, 2019.
Board Decision, 2020 WL 9049581, at *4.
C. CAVC Decision
O’Connell appealed the Board’s decision to the CAVC,
which began by finding that, since O’Connell did not raise
arguments regarding the Board’s denial of entitlement to
an initial rating in excess of 10% prior to July 1, 2014, or
in excess of 60% from July 1, 2014, to May 11, 2016, appeal
on those issues was abandoned. CAVC Decision, 2023 WL
3143712, at *1. Thus, the issues on that appeal concerned
only the period of May 12, 2016, to September 13, 2019. Id.
In that proceeding, O’Connell argued: (1) that “[t]he
Board’s decision to assign a lower, staged disability rating
for May 13, 2016, to September 13, 2019, as compared to
the preceding time period, should be reversed” because the
lack of evidence on the record demonstrating an improve-
ment in his condition made the decision clearly erroneous;
and, alternatively, and (2) the Court should remand for
reexamination of O’Connell’s condition because the Board
violated its duty to assist by “fail[ing] to order a new VA
medical examination before reducing O’Connell’s disability
rating in view of three days of irrelevant medical records.”1
Appellant’s CAVC Br. at 4. O’Connell first argued that the
Board clearly erred in relying on the May 2016 medical rec-
ords to establish that O’Connell’s disability improved be-
cause the records were made by doctors specializing in
treating psychiatric disorders and in conjunction with
O’Connell’s psychiatric episode, during which he was men-
tally incapacitated. Appellant’s CAVC Br. at 8, 12. O’Con-
nell then asserted that the Board’s duty to assist requires
1 O’Connell only appeals to this court on the basis of
his second argument that the Board violated its duty to as-
sist.
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O' CONNELL v. MCDONOUGH 5
that any doubt as to the degree of disability be resolved in
favor of O’Connell, and that reasonable doubt existed even
if the psychiatric records were properly considered by the
Board “due to the extraordinary content of such medical
records” and because “there is no other corroborating evi-
dence that the Board relied on.” Appellant’s CAVC Br. at
12 (citing 38 C.F.R. § 4.3). According to O’Connell, since
the record did not adequately demonstrate the current
state of his disability, the Board was required to conduct a
medical examination to fulfill its duty to assist and failed
to do so before determining that the 60% rating would not
continue for the period from May 12, 2016, to September
13, 2019. Appellant’s CAVC Br. at 12 (citing Goss v.
Brown, 9 Vet. App. 109, 114 (1996); 38 U.S.C. § 5103A(d)).
O’Connell noted that reexamination is necessary “if it is
likely that a disability has improved, or if evidence indi-
cates there has been a material change in a disability or
that the current rating may be incorrect.” Appellant’s
CAVC Br. at 12 (quoting 38 C.F.R. § 3.327(a)). Since, ac-
cording to O’Connell, there was insufficient medical evi-
dence for the Board to determine that his condition
improved, the Board’s failure to order a new medical exam-
ination violated its duty to assist. Appellant’s CAVC Br. at
12. The Secretary of Veterans’ Affairs (Secretary) “gener-
ally dispute[d] [O’Connell’s] arguments and urge[d] the
[c]ourt to affirm.” CAVC Decision, 2023 WL 3143712, at
*2.
The CAVC began by rejecting O’Connell’s first argu-
ment due to his flawed portrayal of the 30% rating as a “re-
duction” of the initial rating rather than as part of a
“staged rating,”2 before turning to his argument that the
2 Separate disability ratings for distinct periods of
time, known as “staged ratings,” may be assigned to differ-
ent periods based on the facts found. CAVC Decision, 2023
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O' CONNELL v. MCDONOUGH 6
Board violated its duty to assist. Id. at *4. The CAVC then
found that O’Connell did not demonstrate that the Board
failed to meet its obligation under 38 C.F.R. § 3.327(a) to
provide a reexamination and “that the evidence was too old
or insufficient to demonstrate that his condition had im-
proved.” Id. The CAVC rejected his argument as missing
the mark on several issues: “primarily, that this is not a
rating reduction case; that [O’Connell] has not demon-
strated that the Board relied solely on the May 2016 rec-
ords, erred in affording those records probative value, or
relied on the lack of evidence; and that the Board ade-
quately explained why the evidence showed that a 30% rat-
ing was warranted.” Id. Thus, the CAVC affirmed the
Board’s decision denying O’Connell’s entitlement to a disa-
bility rating in excess of 30% from May 12, 2016, to Sep-
tember 13, 2019. Id. He now appeals that decision to this
court.
D ISCUSSION
This court’s jurisdiction over CAVC decisions is limited
by statute to the review of questions of law—such as “chal-
lenge[s] to the validity of any statute or regulation or any
interpretation thereof”—and thus, absent a constitutional
issue, this court does not have jurisdiction to review “fac-
tual determinations” or applications of law to fact. 38
U.S.C. § 7292(c), (d)(2); Conway v. Principi, 353 F.3d 1369,
1372 (Fed. Cir. 2004). When the CAVC properly interprets
a statute or regulation and the question remaining is
WL 314712, at *2 (citing Hart v. Mansfield, 21 Vet. App.
505, 509 (2007)). Rating reduction procedures do not apply
in the assignment of a staged rating if the rating is not re-
duced to a level below what was in effect before the claim-
ant appealed to the Board. Id. at *3 (citing Fenderson v.
West, 12 Vet. App. 119, 126 (1999); O’Connell v. Nicholson,
21 Vet. App. 89, 94 (2007)).
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O' CONNELL v. MCDONOUGH 7
whether the regulation was violated such that the Board
committed clear and unmistakable error, that inquiry is
“fact-based” and therefore “beyond [this court’s] jurisdic-
tion.” Glover v. West, 185 F.3d 1328, 1332–33 (Fed. Cir.
1999).
The duty to assist, codified as 38 U.S.C. § 5103A, re-
quires that VA “make reasonable efforts to assist a claim-
ant in obtaining evidence necessary to substantiate the
claimant’s claim for a benefit under a law administered by
[VA].” 38 U.S.C. § 5103A. This includes “providing a med-
ical examination or obtaining a medical opinion when such
an examination or opinion is necessary to make a decision
on the claim” and can include a reexamination “if the prior
examination no longer reflects the current state of the con-
dition.” 38 U.S.C. § 5103A(d); Payne v. Wilkie, 31 Vet. App.
373, 390 (2019). To trigger the reexamination duty, how-
ever, the claimant “‘must come forward with at least some
evidence that there has in fact been a material change in
his or her disability’ since the prior examination.” Payne,
31 Vet. App. at 390 (quoting Glover, 185 F.3d at 1333).
O’Connell argues that the Board violated its duty to as-
sist by relying solely and inappropriately on the May 2016
medical documents “to construct a new discrete time period
during which [O’Connell’s] condition allegedly improved,”
and that even if consideration of these documents was ap-
propriate, it was insufficient to conclude that his “condition
was no longer as ‘severe and frequent’ to justify sustained
60 percent rating.” Appellant’s Br. at 4. He contends that
drawing this conclusion was a violation of 38 C.F.R.
§ 3.327(a), which obligates the Board to conduct reexami-
nations “if it is likely that a disability has improved, or if
evidence indicates a material change in a disability or that
the current rating may be incorrect.” Appellant’s Br. at 4–
5 (quoting 38 C.F.R. § 3.327(a)). O’Connell argues that the
May 2016 records were both insufficient and too old for the
Board to properly draw its conclusion, and thus that to
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O' CONNELL v. MCDONOUGH 8
fulfill its duty to assist it should have conducted a reexam-
ination of his condition. Appellant’s Br. at 5.
The Secretary argues that the CAVC’s “determination
that VA fulfilled its duty to assist is a factual inquiry” that
this court lacks jurisdiction to review, and thus this appeal
should be dismissed. Appellee’s Br. at 8–9 (citing Garrison
v. Nicholson, 494 F.3d 1366, 1370 (Fed. Cir. 2007); Glover,
185 F.3d at 1333; Lynch v. McDonough, No. 2021-224, 2022
WL 726955, at *3 (Fed. Cir. Mar. 10, 2022); Macak v.
McDonald, 598 F. App’x 776, 780 (Fed. Cir. 2015); Flores v.
McDonald, 586 F. App’x 595, 596 (Fed. Cir. 2014); Ruiz-
Rojas v. Shinseki, 341 F. App’x 619, 620 (Fed. Cir. 2009)).
In the alternative, the Secretary argues this court should
affirm because the CAVC did not err in finding that VA
satisfied its duty to assist. Appellee’s Br. at 10.
We agree with the Secretary that this court does not
have jurisdiction over the present case. O’Connell does not
contend that the CAVC incorrectly interpreted any statute
or regulation relevant to this appeal; rather, his argument
is that the Board failed to meet its duty to assist under the
facts of the case because it relied on “irrelevant” examina-
tions that took place in the context of psychiatric evalua-
tions. Appellant’s Br. at 4. O’Connell’s argument is that
(1) the Board improperly relied on the May 2016 medical
documents that took place during psychiatric evaluations3;
3 To the extent that O’Connell argues that it was im-
proper as a matter of law for the Board to look to psychiat-
ric evaluation records as evidence of his physical condition,
O’Connell did not proffer any legal support that the use of
evidence pertaining to a physical condition gathered dur-
ing a psychiatric evaluation is insufficient to evaluate that
physical condition under the regulations. Before the
CAVC, and before this court, “he [did] not cite any author-
ity for the proposition that the Board may not assign
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O' CONNELL v. MCDONOUGH 9
(2) the “extraordinary content” of those medical records cre-
ates reasonable doubt on the scope of the disability, which
must be decided in O’Connell’s favor; and (3) the Board re-
lied only on those medical records and no other evidence,
which was insufficient and too old for the Board to ade-
quately conclude a disability rating of 30% for the period
beginning May 12, 2016. Appellant’s Br. at 4–5. The con-
text, content, and sufficiency of the medical records from
May 2016 at most constitute an application of law to facts,
which is outside of this court’s jurisdiction. See Delisle v.
McDonald, 789 F.3d 1372, 1374 (Fed. Cir. 2015) (whether
specific symptoms identified by a claimant warrant an in-
creased disability rating is a question of fact); Lynch, 2022
WL 726955, at *2 (whether evidence is material is a finding
of fact).
Further, as noted by the Secretary, determining com-
pliance with section 5103A is a factual issue. Garrison, 494
F.3d at 1370 (holding that the Board’s compliance with the
notice portion of section 5103A is a factual inquiry); Lynch,
2022 WL 726955, at *3 (“‘[The Board’s] compliance with the
probative value to treatment records that were not gener-
ated for purposes of evaluating his GERD, nor d[id] he cite
any evidence supporting his contentions that he was not
competent to accurately report his symptoms in May 2016.”
CAVC Decision, 2023 WL 3143712, at *3. Thus, he did not
make the argument that it was legally improper to consider
this evidence.
In fact, CAVC case law suggests that considering men-
tal health notes to evaluate a physical disability is not le-
gally erroneous if the regulation or statute does not
“explicitly require that a report of examination or hospital-
ization pertain solely or primarily to the service-connected
disability for which an increased evaluation is being
sought.” Johnson v. McDonald, 2015 WL 367652, at *8
(Vet. App. Jan. 28, 2015).
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O' CONNELL v. MCDONOUGH 10
[“duty to assist” obligation] is outside our jurisdiction’ be-
cause such an inquiry ‘involves factual issues.’”). When
“there is no claim that the Board was interpreting a stat-
ute” and no claim that “the Board [was] establishing a legal
rule to be applied to similar fact situations in future cases,”
then the Board’s decision is a result of “appl[ying] estab-
lished law to the facts” and this Court does not have juris-
diction to review the CAVC’s ruling on the Board’s actions.
Garrison, 494 F.3d at 1370. In this case, O’Connell does
not contend that the Board misinterpreted sections 5103A
or 3.327(a), nor does he claim the Board established any
erroneous legal rule for future cases. Thus, O’Connell’s ap-
peal is based on the argument that the Board’s decision re-
sulted from a misapplication of established law to the facts
of his case, and therefore, falls outside of this court’s juris-
diction.
CONCLUSION
Accordingly, we dismiss O’Connell’s appeal from the
judgement of the CAVC.
DISMISSED
COSTS
No costs.
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