Annette Hurley v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANNETTE HURLEY,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1387
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-642, Judge Amanda L. Mere-
dith.
______________________
Decided: September 11, 2025
______________________
ROBERT D AVIS , Law Offices of Robert R. Davis, Char-
lotte, NC, argued for claimant-appellant.
AUGUSTUS G OLDEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, WILLIAM J AMES G RIMALDI,
P ATRICIA M. MC CARTHY ; BRIAN D. G RIFFIN, J ONATHAN
Case: 24-1387 Document: 46 Page: 1 Filed: 09/11/2025

-- 1 of 3 --

HURLEY v. COLLINS 2
K RISCH , Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Before L OURIE, T ARANTO, and CUNNINGHAM , Circuit
Judges.
CUNNINGHAM , Circuit Judge.
Annette Hurley appeals a decision of the United States
Court of Appeals for Veterans Claims (“Veterans Court”),
affirming a Board of Veterans’ Appeals decision finding
that the character of her discharge from active duty service
(August 6, 1980, to January 12, 1983) is a bar to Depart-
ment of Veterans Affairs’ (“VA”) compensation under 38
C.F.R. § 3.12. Hurley v. McDonough, No. 22-0642,
2023 WL 8108059, at *1, *5 (Vet. App. Nov. 22, 2023);
J.A. 29. For the below reasons, we vacate and remand.
Because the parties are familiar with the general back-
ground facts of this case, we focus only on the facts relevant
to our decision here. After Ms. Hurley filed her opening
brief with this court on March 21, 2024, see ECF No. 10,
the applicable regulation, 38 C.F.R. § 3.12, was substan-
tially amended. See Update and Clarify Regulatory Bars
to Benefits Based on Character of Discharge, 89 Fed. Reg.
32361, 32361 (Apr. 26, 2024) (explaining that this
amended rule applies to applications for benefits that are
pending before the VA, the Veterans Court, or the Federal
Circuit on June 25, 2024). The Secretary of Veterans Af-
fairs subsequently moved to remand pursuant to Federal
Circuit Rule 27(f). Appellee’s Br. 12.
We vacate and remand to the Veterans Court to con-
sider the updated version of the applicable regulation, 38
C.F.R. § 3.12. “A remand is generally required if [an] in-
tervening event may affect the validity of the agency ac-
tion” and “may conserve judicial resources.” SKF USA Inc.
v. United States, 254 F.3d 1022, 1028–29 (Fed. Cir. 2001).
At oral argument, counsel for Ms. Hurley conceded that the
Case: 24-1387 Document: 46 Page: 2 Filed: 09/11/2025

-- 2 of 3 --

HURLEY v. COLLINS 3
updated regulation applies to her application for benefits
and no longer objects to a remand. Oral Arg. 1:04–1:24,
3:00–3:07, https://www.cafc.uscourts.gov/oral-arguments/2
4-1387_09022025.mp3 (“We don’t object to a re-
mand . . . .”); ECF No. 45 (“The parties agree that this case
should be remanded.”). Because the Veterans Court did
not have the benefit of the amended regulation, we vacate
and remand.1 On remand, Ms. Hurley’s application for
benefits should be considered in light of the amended reg-
ulation.
VACATED AND REMANDED
COSTS
No costs.
1 Because of our decision to vacate and remand, we
do not reach Ms. Hurley’s arguments that the Veterans
Court erred in applying the incorrect standard for (1) will-
ful misconduct in 38 C.F.R. § 3.1(n), Appellant’s Br. 11–35,
and (2) harmless error, id. at 35–47.
Case: 24-1387 Document: 46 Page: 3 Filed: 09/11/2025

-- 3 of 3 --