Wendy Harris v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WENDY HARRIS,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1279
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-1654, Judge Margaret C. Bart-
ley.
______________________
Decided: June 17, 2025
______________________
J. BRYAN J ONES , III, J B Jones III LLC, Lafayette, LA,
for claimant-appellant.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , L OREN MISHA P REHEIM ;
CHRISTINA L YNN G REGG, BRIAN D. G RIFFIN, Office of
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HARRIS v. COLLINS 2
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before D YK, SCHALL , and CHEN, Circuit Judges.
SCHALL , Circuit Judge.
D ECISION
Wendy Harris, the surviving spouse of veteran Willie
B. Harris, appeals the decision of the United States Court
of Appeals for Veterans Claims (“Veterans Court”) in Har-
ris v. McDonough, No. 22-1654, 2023 WL 7145469 (Vet.
App. Oct. 31, 2023); J.A. 1–7.1 Ms. Harris seeks an earlier
effective date for Mr. Harris’s grant of service connection
for degenerative joint disease of his left hip. We have ju-
risdiction pursuant to 38 U.S.C. § 7292. For the reasons
set forth below, we affirm the decision of the Veterans
Court.
D ISCUSSION
I
Mr. Harris served in the United States Navy from May
1, 1987 to April 3, 1989. Shortly after he was discharged,
Mr. Harris filed a claim for service connection for a hip dis-
ability resulting from a fall he suffered during service. The
United States Department of Veterans Affairs (“VA”) Re-
gional Office (“RO”) denied Mr. Harris’s claim because an
examination had not revealed him to be suffering from a
hip injury. J.A. 2; J.A. 102. Mr. Harris filed a notice of
disagreement with the RO’s decision. Subsequently, in a
Statement of the Case issued by the RO in January of 1990,
the VA explained that Mr. Harris was not eligible for ser-
vice connection for a hip disability because his “[s]ervice
1 “J.A.” refers to the Corrected Joint Appendix, ECF
No. 19.
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HARRIS v. COLLINS 3
records d[id] not show a fracture or chronic injury of the
hip,” and because, “[o]n VA examination[, his] x-rays [we]re
negative for a left hip problem or any clinical evidence of a
left hip disability.” J.A. 99. In April of 1991, the Board of
Veterans Appeals (“Board”) affirmed the denial of service
connection for a hip disorder. J.A. 90–91. Mr. Harris did
not appeal the Board’s April 1991 decision and it became
final. J.A. 2.
On July 17, 2001, Mr. Harris filed a claim to reopen his
previously denied left hip disability claim. J.A. 2; J.A. 84.
As part of the development of the claim the VA conducted
a series of examinations of Mr. Harris. In December of
2013, a VA examiner diagnosed arthritis of the hip and a
groin strain. J.A. 2. The RO sought clarification of this
diagnosis, asking the examiner to provide a medical opin-
ion as to whether Mr. Harris’s hip disabilities were related
to service. In January of 2014, the examiner responded
that “[i]t is at least as lik[el]y as not that any or all of the
veteran’s hip disabilities are related to the fall that he sus-
tained while on active duty.” J.A. 128; see J.A. 2. The ex-
aminer further explained that Mr. Harris “has complained
consistently of pain in the left groin area and he has almost
point tenderness in the area of the old healed fracture.”
J.A. 128. In a March 2016 rating decision, the RO granted
service connection for Mr. Harris’s degenerative joint dis-
ease of his left hip, with an effective date of September 8,
2003. J.A. 2; J.A. 78. The RO later granted Mr. Harris an
effective date of July 17, 2001, the date he filed his claim
to reopen. J.A. 3; J.A. 55.
In May of 2016, Mr. Harris filed a notice of disagree-
ment, arguing that the effective date for his hip condition
should be earlier “because a claim for the hip condition was
made earlier and the examiner relied on service records of
an old fracture to support his claim.” J.A. 70 (capitalization
removed). Mr. Harris argued that the 2013 VA examiner
had relied on service medical records that had not been con-
sidered in conjunction with his original 1989 claim,
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HARRIS v. COLLINS 4
specifically, an October 1988 service medical record, and
thus he was entitled to reconsideration of his original claim
under 38 C.F.R. § 3.156(c). J.A. 3. In subsequent state-
ments to the RO and the Board, Mr. Harris’s representa-
tive argued that the effective date for Mr. Harris’s hip
disability should be April 3, 1989, his discharge date, since
Mr. Harris had filed a claim for a left hip disability within
a year of his discharge. J.A. 54–55. In these statements,
made in July of 2017 and again in March of 2018, Mr. Har-
ris’s representative stated:
[T]he original decision denying service connection
stated that there was no evidence of left groin pain,
while in service. However, when the matter was
reopened by the Board and ultimately granted, the
medical examiner relied on an October 1988 service
medical record which stated that the Veteran had
suffered left groin pain.
Id. Mr. Harris was thus arguing that he should be
awarded an earlier effective date for the grant of service
connection for his hip disability pursuant to the provisions
of 38 C.F.R. § 3.156(c), which are directed to newly discov-
ered service department records.2
The Board rejected this argument, pointing out that
(a) there was no evidence that the October 1988 service
medical record to which Mr. Harris pointed was not associ-
ated with the record at the time of the Board’s 1991 deci-
sion; and that (b) the new and material evidence that was
used to reopen Mr. Harris’s claim were the December 2013
2 In relevant part, § 3.156(c)(1) provides that the VA
will reconsider a claim if, at any time after VA issues a de-
cision on a claim, it “receives or associates with the claims
file relevant official service department records that ex-
isted and had not been associated with the claims file when
VA first decided the claim.”
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HARRIS v. COLLINS 5
medical evaluation and the January 2014 medical opinion,
which are not service department records under 38 C.F.R.
§ 3.156(c). J.A. 56–57. The Board thus concluded that the
assignment of an effective date prior to July 17, 2001, the
date Mr. Harris filed his claim to reopen his previously de-
nied claim, was not warranted. J.A. 57–58.
On appeal to the Veterans Court, Mr. Harris asserted
that he was entitled to an earlier effective date under
§ 3.156(c) because the October 1988 service medical record
had been newly associated with his claims file. J.A. 47. In
making this argument, he contended that “associated” for
purposes of § 3.156(c) meant “acknowledged” by the VA
and “considered as part of [its] decision.” Id. The court
remanded for development of the record on the relevance
of the October 1988 service medical record. J.A. 48. On
remand, the Board concluded that the October 1988 record
was not relevant to Mr. Harris’s degenerative joint disease
of the left hip because the October 1988 record “does not
mention the Veteran’s left hip, arthritis, or degenerative
joint disease.” J.A. 29. The Board also concluded that,
even if relevant, the evidence of record indicated that the
October 1988 service medical record was associated with
Mr. Harris’s file at the time of the April 1991 Board deci-
sion. J.A. 29–30. Following Mr. Harris’s appeal to the Vet-
erans Court, the parties jointly moved for remand for the
Board to further address the relevance of the October 1988
record. J.A. 20. Following remand, in a February 2022 de-
cision, the Board again found the record was not relevant,
J.A. 13, and Mr. Harris again sought review by the Veter-
ans Court.
The Veterans Court affirmed the Board’s holding that
the October 1988 service medical record was not relevant.
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HARRIS v. COLLINS 6
The court acknowledged Ms. Harris’s3 argument that the
ultimate grant of service connection for her deceased hus-
band’s left hip orthopedic disabilities arose from his re-
quests for service connection for groin pain and that the
October 1988 record was evidence considered by the RO in
its March 2016 service-connection grant. J.A. 6. The court
explained, however, that, under this court’s Kisor v.
McDonald decision, in order to be “relevant” for purposes
of reconsideration under § 3.156(c), additional records
must “speak to the basis for the VA’s prior decision.” Id.
(quoting Kisor, 995 F.3d 1316, 1323 (Fed. Cir. 2021)). The
court noted that the Board’s basis for its denial of service
connection in 1991 was the Board’s factual finding that
Mr. Harris did not have a chronic left hip disability. Id.
Because Ms. Harris did not establish that the October 1988
record related to the basis for the 1991 denial, the court
concluded that the Board had not clearly erred in finding
that the October 1988 record was not relevant for reconsid-
eration purposes. Id. Having determined the October 1988
record could not be a relevant record under Kisor, the Vet-
erans Court did not reach Ms. Harris’s additional argu-
ment that “associate[] with the claims file” “means [that]
not only is the record physically with [VA] but the record
was acknowledged by [VA] and considered as part of the
most recent decision.” J.A. 5–6 (second and third alteration
in original). The court thus affirmed the Board’s determi-
nation of a July 17, 2001 effective date. J.A. 7.
Ms. Harris timely appealed the Veterans’ Court deci-
sion.
3 The Veterans Court granted Ms. Harris’s motion to
substitute after Mr. Harris passed away in September of
2022.
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HARRIS v. COLLINS 7
II
On appeal, Ms. Harris acknowledges that “it appears
that the October 1988 service record[ was] physically in”
Mr. Harris’s file when the original 1991 decision denying
service connection for his hip disorder was issued. Appel-
lant’s Br. 14. She argues, however, that the October 1988
record “w[as] missed and not recognized by the medical ex-
aminer, the regional office and the [Board],” and that
therefore she should be given the effective date of Mr. Har-
ris’s original claim, in accordance with § 3.156(c). Id.
Ms. Harris states that the Veterans Court clearly erred in
finding that the October 1988 record is not “relevant” un-
der the regulation because she asserts that the March 2016
rating decision granting Mr. Harris service connection for
his hip relied on the October 1988 record. Appellant’s Br.
9–13.4 Ms. Harris also requests that our court construe the
phrase “associated with the claims file” that appears in 38
C.F.R. § 3.156(c) to require more than physical existence in
the file. Id. at 13–16.
III
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We have
jurisdiction to decide an appeal insofar as it presents a
challenge to the court’s decision regarding a rule of law,
4 We do not see where either the examiner, in 2014,
or the RO, in 2016, discussed the October 1988 service med-
ical record itself. See J.A. 79–80; J.A. 128–42. However,
the March 2016 rating decision notes that Mr. Harris
“ha[d] complained consistently of pain in the left groin area
and . . . ha[d] almost point tenderness in the area of the old
healed fracture of the left superior pubic ramus.” J.A. 80.
In addition, the notes from his January 2014 examination
indicate that Mr. Harris was diagnosed with a left
“hip/groin strain” in 1988. J.A. 130, 137; see also J.A. 128.
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HARRIS v. COLLINS 8
including a decision about the interpretation or validity of
any statute or regulation. Id. § 7292(a), (d)(1). However,
we lack jurisdiction to entertain a challenge to a factual
determination or a challenge to the application of a law or
regulation to the facts of a particular case, unless the ap-
peal presents a constitutional issue. Id. § 7292(d)(2).
We have jurisdiction over Ms. Harris’s appeal because,
as seen below, it involves an interpretation of provisions of
38 C.F.R. § 3.156. At the same time, though, we do not
have jurisdiction to review the Board’s finding of fact—
which is determinative of the appeal—that Mr. Harris’s
March 2016 claim was not granted based upon considera-
tion of the October 1988 record. Specifically, the Board
found:
The new and material evidence that was used to
reopen the Veteran’s claim was the December 2013
medical evaluation indicating that the Veteran has
a groin strain that occurred during his in-service
fall in 1988, and the January 2014 medical opinion
that the Veteran’s degenerative arthritis of the left
hip (and all of his hip disabilities) are at least as
likely as not related to the fall that he sustained
while on active duty. There is no indication that
these medical opinions either were service depart-
ment records that had not been associated with the
claims file or were based on (even in part) service
department records that had not been associated
with the claims file. While these medical opinions
may have considered evidence that was previously
of record that may have not previously been consid-
ered, this would not prompt reconsideration under
38 C.F.R. § 3.156(c).
J.A. 14.
We conclude that because Mr. Harris’s 2001 claim for
service-connected disability was granted in March of 2016
based upon his post-2001 examinations, his claim fell
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HARRIS v. COLLINS 9
under the provisions of 38 C.F.R. § 3.156(a) for “new and
material” evidence, not the provisions of § 3.156(c) for “ser-
vice department records.” As we have explained, “[s]ection
3.156(c) only applies when VA receives official service de-
partment records that were unavailable at the time that VA
previously decided a claim for benefits and those records
lead VA to award a benefit that was not granted in the pre-
vious decision.” Blubaugh v. McDonald, 773 F.3d 1310,
1314 (Fed. Cir. 2014) (quoting New and Material Evidence,
70 Fed. Reg. at 35,388 (June 20, 2005)) (original emphasis
removed and emphasis added). That did not happen here.
The October 1988 record was available and in the claims
file in 1991. We thus reject the interpretation of § 3.156(c)
that Ms. Harris urges: that the regulation applies when a
record is in the claims file, but is overlooked, or “missed,”
by the RO. Accordingly, § 3.156(c) does not apply to
Ms. Harris’s claim and cannot form the basis for entitle-
ment to an effective date earlier than July 17, 2001, for her
claim.
We have considered Ms. Harris’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the decision of the Veterans Court.
AFFIRMED
COSTS
No costs.
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