Thaddeus Brown v. Todd Hunter, Acting Secretary of Veterans Affairs

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THADDEUS BROWN,
Claimant-Appellant
v.
TODD HUNTER, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1847
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-3754, Judge William S. Green-
berg.
______________________
Decided: January 24, 2025
______________________
KENNETH M. CARPENTER , Carpenter Chartered, To-
peka, KS, argued for claimant-appellant.
BRITTNEY M. WELCH , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. B OYNTON, WILLIAM J AMES GRIMALDI,
P ATRICIA M. MC CARTHY; E VAN SCOTT GRANT, Y. KEN LEE ,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
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BROWN v. HUNTER 2
______________________
Before R EYNA , T ARANTO, and STARK, Circuit Judges.
T ARANTO, Circuit Judge.
In 1991, the U.S. Department of Veterans Affairs (VA)
denied Thaddeus Brown’s claim for service-connected post-
traumatic stress disorder (PTSD). In 1992, within the ap-
peal period for that denial, a VA physician diagnosed Mr.
Brown with PTSD of “questionable” service connection. Af-
ter several attempts to reopen his claim, Mr. Brown ap-
pealed a 2021 decision by the Board of Veterans’ Appeals
(Board) to the Court of Appeals for Veterans Claims (Vet-
erans Court), arguing that the Board should have consid-
ered whether the 1992 examination constituted “new and
material” evidence for his 1991 claim under 38 C.F.R.
§ 3.156(b). The Veterans Court dismissed Mr. Brown’s ap-
peal for lack of jurisdiction. We now affirm.
I
In January 1991, Mr. Brown, who had served on active
duty from June 1974 to February 1975, filed a claim for
disability benefits based on asserted service-connected
PTSD. Brown v. McDonough, No. 21-3754, 2023 WL
371154, at *2 (Vet. App. Jan. 24, 2023) (Decision). The rel-
evant regional office of VA denied Mr. Brown’s claim on
July 9, 1991. Id. On March 20, 1992, within the one-year
appeal period for the denial of the 1991 claim, a VA physi-
cian examined Mr. Brown and diagnosed him with PTSD
of “questionable” service connection. Id.; see 38 C.F.R.
§ 20.203(b).
In 1996, Mr. Brown filed a request with VA to reopen
his claim after a 1995 medical examination diagnosed him
with PTSD. Decision at *3. The Board reopened Mr.
Brown’s claim and found no service connection for PTSD on
the merits in 1998. Id. The Board discussed the 1992 ex-
amination and noted that “[i]n the opinion of the Board,
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BROWN v. HUNTER 3
that diagnosis is not a clear diagnosis of PTSD due to a ver-
ified inservice stressor and, even if it was, the weight of the
evidence is against such a diagnosis with the contended
causal relationship.” J.A. 63. Mr. Brown did not appeal
the Board’s 1998 decision. Decision at *3.
In 2000, Mr. Brown again asked VA to reopen his
claim, but VA denied that request in 2001 and Mr. Brown
did not appeal. Id. at *3. Mr. Brown sought to reopen his
PTSD claim once again in 2004, and VA denied that re-
quest in 2005. Mr. Brown appealed the denial to the Board,
which remanded the matter for further factual develop-
ment. In 2009, following the remand, the Board found that
new and material evidence for Mr. Brown’s PTSD claim
had not been submitted “since the time of the May 2001
adjudication,” denied Mr. Brown’s request to reopen his
PTSD claim, and remanded for consideration of whether
Mr. Brown was entitled to service connection for a psychi-
atric disability other than PTSD. Id. at *4; J.A. 162, 165;
see 38 C.F.R. § 3.156(b). Mr. Brown did not appeal the
PTSD-claim-denial portion of the 2009 decision. Decision
at *4; see Tyrues v. Shinseki, 732 F.3d 1351, 1357 (Fed. Cir.
2013) (“When the Board renders a clear definitive denial of
benefits as part of a mixed decision, . . . the veteran not
only can appeal immediately, but must bring any appeal
from the denial portion within the 120-day period allowed
by statute.”).
In 2021, after further proceedings not important to de-
ciding the issue before us, the Board found service connec-
tion for “an acquired psychiatric disorder other than
PTSD,” noting that “[s]ervice connection for PTSD was de-
nied in a final May 2001 Rating Decision.” J.A. 175, 177.
The Board’s 2021 decision did not discuss the 1992 exami-
nation. Mr. Brown appealed the Board’s decision to the
Veterans Court, arguing that the Board should have adju-
dicated his PTSD claim and determined whether the 1992
examination was “new and material” evidence under
§ 3.156(b). Decision at *1, *4. The Veterans Court
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BROWN v. HUNTER 4
explained that the Board was not required to address
§ 3.156(b) because Mr. Brown had not appealed the 1998,
2001, or 2009 decisions, rendering it “irrelevant whether
the June 1992 VA medical examination constituted new
and material evidence received within 1 year of the July
1991 rating decision.” Id. at *4. The Veterans Court then
dismissed the appeal for lack of jurisdiction. Id.; see 38
U.S.C. § 7252. Mr. Brown appeals.
II
Our authority to review decisions by the Veterans
Court is generally confined to “relevant questions of law.”
38 U.S.C. § 7292(d)(1); see also id. at § 7292(a). 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,” unless that challenge “presents a consti-
tutional issue.” Id. at § 7292(d)(2). This appeal presents
no constitutional issue.
The government contends that we do not have jurisdic-
tion to review Mr. Brown’s challenge to the Veterans
Court’s decision. We disagree. We understand Mr. Brown
to argue that the Veterans Court misinterpreted 38 C.F.R.
§ 3.156(b) in ruling that the Board was not obligated to ad-
dress whether the 1992 examination was new and material
evidence to Mr. Brown’s 1991 claim—a question of regula-
tory interpretation within our jurisdiction. See Bond v.
Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (“Whether
§ 3.156(b) requires . . . VA to determine if a submission
filed during the appeal period constitutes new and material
evidence relating to a pending claim is a legal question di-
vorced from the facts of this case.”); Hampton v.
McDonough, 68 F.4th 1376, 1379 (Fed. Cir. 2023) (rejecting
jurisdictional challenge where appellant “argue[d] that the
Veterans Court misinterpreted § 3.156(b)”); Gudinas v.
McDonough, 54 F.4th 716, 718–19 (Fed. Cir. 2022) (same).
Though Mr. Brown’s appeal is within our jurisdiction,
we do not agree with him that the Veterans Court
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BROWN v. HUNTER 5
misinterpreted § 3.156(b). Under Bond, VA must “evaluate
submissions received during the relevant period and deter-
mine whether they contain new evidence relevant to a
pending claim.” 659 F.3d at 1369; see also Beraud v.
McDonald, 766 F.3d 1402, 1406–07 (Fed. Cir. 2014) (ex-
plaining that “the claim at issue remains open” without
such determination). The Veterans Court did not reject
that interpretation. Nor did it reject additional principles
we have adopted. We have held that VA can make the
§ 3.156(b) determination implicitly “so long as there is
some indication that . . . VA determined whether the sub-
mission is new and material evidence, and, if so, considered
such evidence in evaluating the pending claim.” Pickett v.
McDonough, 64 F.4th 1341, 1342 (Fed. Cir. 2023). And
“our precedent appears to allow the Board to make a new
and material evidence determination in the first instance
to satisfy § 3.156(b).” Hampton, 68 F.4th at 1381 n.5 (citing
Bond, 659 F.3d at 1368).
We see no error of law in the Veterans Court’s decision.
Under the above principles, the Veterans Court held that
the Board did not need to do more than it did. The Board
explained that the 1992 examination was “not a clear diag-
nosis of PTSD due to a verified inservice stressor.” J.A. 63.
And the Board said in 2009 that “[n]ew and material evi-
dence ha[d] not been received to reopen [Mr. Brown’s] claim
for service connection for PTSD.” J.A. 139. In ruling that
the Board did not need to say more in 2021, the Veterans
Court was determining that the Board had already made
the required judgment in its 1998 and/or 2009 decisions
(which were not appealed and hence were final). The Vet-
erans Court’s determination, on appeal to us, is either a
factual finding or an application of law to fact—neither of
which we can review under our jurisdictional statute.
Because we see no error of law, and we cannot review
the Veterans Court’s underlying determinations about the
1998 and 2009 Board decisions, we affirm the decision of
the Veterans Court.
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BROWN v. HUNTER 6
The parties shall bear their own costs.
AFFIRMED
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