Stephen Craig Combs v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEPHEN CRAIG COMBS,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2364
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-1831, Judge Joseph L. Toth.
______________________
Decided: July 10, 2025
______________________
MEGHAN G ENTILE, Sutton Snipes LLLP, Albany, GA,
argued for claimant-appellant. Also represented by EVAN
T YLER SNIPES , BRITNEY SUTTON.
D ANIEL H OFFMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by ELIZABETH MARIE HOSFORD, G EOFFREY M. L ONG,
P ATRICIA M. M CCARTHY , YAAKOV R OTH ; J ONATHAN K RISCH ,
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COMBS v. COLLINS 2
D EREK SCADDEN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
Before T ARANTO, HUGHES , and STOLL , Circuit Judges.
HUGHES , Circuit Judge.
Stephen Combs appeals the final decision of the Court
of Appeals for Veterans Claims denying his request for a
higher rating for his gastroesophageal reflux disease based
on clear and unmistakable error. Mr. Combs alleges that
the Veterans Court misinterpreted 38 C.F.R. § 4.20 when
it rated his gastroesophageal reflux disease by analogy. Be-
cause the Veterans Court did not misinterpret 38 C.F.R.
§ 4.20, we affirm.
I
Mr. Combs served in the United States Marine Corps
on active duty from January 1986 to January 1994. J.A. 1,
9, 52. Following his separation from service, Mr. Combs
sought disability benefits from the Department of Veterans
Affairs, and, in a March 1998 rating decision, the regional
office assigned Mr. Combs a 10% rating for gastroesopha-
geal reflux disease (GERD). J.A. 65–71. In 1999,
Mr. Combs requested service connection for additional con-
ditions. J.A. 73. The regional office provided him a new ex-
amination, J.A. 86–90, and in an August 2000 rating
decision, the regional office continued his 10% GERD rat-
ing. J.A. 96.
In the 2000 decision, the regional office noted that
there was no Diagnostic Code (DC) for GERD in the
agency’s Schedule for Rating Disabilities, 38 C.F.R. Part ,
and so “a closely related disease or injury” was used for this
purpose (hiatal hernia, as the predominant condition is re-
flux). J.A. 102; see J.A. 2. Hiatal hernia is rated under
38 C.F.R. § 4.114, DC 7346, which states:
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COMBS v. COLLINS 3
[60%] Symptoms of pain, vomiting, material
weight loss and hematemesis or melena with
moderate anemia; or other symptom combina-
tions productive of severe impairment of
health
[30%] Persistently recurrent epigastric dis-
tress with dysphagia, pyrosis, and regurgita-
tion, accompanied by substernal or arm or
shoulder pain, productive of considerable im-
pairment of health
[10%] With two or more of the symptoms for
the 30 percent evaluation of less severity
38 C.F.R. § 4.114, DC 7346 (2000); J.A. 2.
The regional office determined that “[t]he evidence
does not show there is severity of the overall disability
which warrants elevation to the 30 percent criteria under
[DC] 7346” because his symptoms “were primarily subjec-
tive complaints of persistent heartburn for reflux, and rec-
tal bleeding, [specifically] blood in stool with one to three
loose bowel movements per day” as well as objective find-
ings of positive stool guaiac.1 J.A. 104. Mr. Combs chose not
to appeal the rating decision to the Board at that time, and
it became final. J.A. 2.
In 2019, Mr. Combs filed a motion to revise the August
2000 rating decision based on clear and unmistakable error
(CUE). J.A. 122–23. He alleged that the August 2000 rat-
ing decision clearly and unmistakably erred in assigning
him a 10% rating because the evidence of record in 2000
warranted the assignment of a 60% rating. J.A. 122–23.
The regional office denied the motion, J.A. 127, and
Mr. Combs appealed to the Board. J.A. 147.
1 Positive stool guaiac “indicates occult, or hidden,
blood in the stool.” J.A. 2.
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COMBS v. COLLINS 4
In a 2021 decision, the Board denied Mr. Combs’s CUE
motion. J.A. 9–13. The Board reviewed the evidence of rec-
ord in 2000 and found that the August 2000 rating decision
summarized that evidence accurately. J.A. 12. The Board
further found that this evidence “did not undebatably es-
tablish” that the criteria for a 60% rating were “met or ap-
proximated.” J.A. 12–13. The Board noted that although
Mr. Combs had “present[ed] a reasonable disagreement as
to the outcome of the claim,” J.A. 13, this “disagreement as
to how the facts were weighed in August 2000,” J.A. 11, did
“not arise to the level of CUE,” in the Board’s view, J.A. 13.
Mr. Combs appealed to the Veterans Court. The Veter-
ans Court affirmed the Board’s finding that “CUE hadn’t
been demonstrated because Mr. Combs ‘did not undebata-
bly establish that the criteria for a higher rating under’
DC 7346 ‘were met or approximated.’” J.A. 4 (quoting
J.A. 12–13). It explained that “contrary to the veteran’s as-
sertion, [Mr. Combs’] disability picture did not track the
60% criteria” for hiatal hernia “almost verbatim” because
Mr. Combs’ medical records “did not document vomiting or
material weight loss,” two of the requisite criteria under
DC 7346. J.A. 3.
The Veterans Court also recognized that “the 60% rat-
ing contemplates ‘symptom combinations productive of se-
vere impairment of health.’” J.A. 3–4 (quoting 38 C.F.R.
§ 4.114, DC 7436). Because “the August 2000 rating deci-
sion concluded that Mr. Combs’s symptomatology did ‘not
show there is severity of the overall disability which war-
rants elevation to the 30 percent’ rating,” the Veterans
Court concluded that the Board’s decision did not rise to an
abuse of discretion and was in accordance with the law.
J.A. 4.
As a “last point” in its decision, the Veterans Court
stated that it was “mindful” of our recent decision in Webb
v. McDonough, 71 F.4th 1377 (Fed. Cir. 2023), which had
been issued three weeks earlier. J.A. 4. The Veterans Court
described Webb as potentially “clarif[ying]” that symptoms
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COMBS v. COLLINS 5
need not “identically” match the criteria of a given DC
when rating a condition by analogy. J.A. 4–5. The Veterans
Court observed, however, that “[w]hatever Webb clarifies
about ratings by analogy, it cannot establish CUE in the
August 2000 rating decision because ‘a new judicial pro-
nouncement’ does not apply ‘retroactively’ to a final deci-
sion.” J.A. 5 (quoting George v. McDonough, 991 F.3d 1227,
1236 (Fed. Cir. 2021), aff’d, 596 U.S. 740 (2022)).
On August 14, 2023, Mr. Combs timely filed his notice
of appeal. J.A. 31–33. We have jurisdiction under 38 U.S.C.
§ 7292.
II
We have limited jurisdiction over appeals from the Vet-
erans Court. We “decide all relevant questions of law, in-
cluding interpreting constitutional and statutory
provisions.” 38 U.S.C. § 7292(d)(1). But we cannot review a
challenge to a factual determination or a challenge to a law
or regulation as applied to the facts of a case, except to the
extent that an appeal presents a constitutional issue. Id.
§ 7292(d)(2); Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010).
III
On appeal, Mr. Combs argues that the Veterans Court
applied the wrong legal standard under 38 C.F.R. § 4.20
when reviewing his CUE claim. Specifically, Mr. Combs ar-
gues the standard requires rating by analogy, and the Vet-
erans Court committed legal error by determining whether
Mr. Combs “met or approximated” the criteria for a higher
rating.
GERD is an unlisted condition, so it was rated by anal-
ogy under 38 C.F.R. § 4.20 to hiatal hernia. 38 C.F.R.
§ 4.20 states:
When an unlisted condition is encountered it
will be permissible to rate under a closely re-
lated disease or injury in which not only the
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COMBS v. COLLINS 6
functions affected, but the anatomical locali-
zation and symptomatology are closely analo-
gous.
As an initial matter, Mr. Combs argues that the Veter-
ans Court “agreed with the Board that he was required to
meet the identical criteria in DC 7346” because the “Veter-
ans Court found Mr. Combs did not meet the criteria for
the analogous condition ‘almost verbatim.’” Appellant’s
Opening Br. 2. Mr. Combs argues that Webb v. McDonough
prohibits the Veterans Court from requiring a veteran to
meet identical criteria when rating by analogy.
We agree with Mr. Combs that Webb was not a new ju-
dicial pronouncement but reflected the state of the law at
the time of the August 2000 rating decision. However, the
Veterans Court never “required [Mr. Combs] to meet the
identical criteria in DC 7346.” Appellant’s Opening Br. 2.
Instead, the Veterans Court rejected Mr. Combs’ assertion
that his disability tracked the 60% criteria for hiatal hernia
almost verbatim. This was not legal error.
Instead, the Veterans Court applied the correct legal
standard for rating by analogy: whether his symptoms met
or approximated the analogous rating. In reviewing the
Board’s decision that his symptoms did not approximate
the 60% criteria for hiatal hernia, the Veterans Court
found “[t]he Board concluded that CUE hadn’t been demon-
strated because Mr. Combs ‘did not undebatably establish
that the criteria for a higher rating under’ DC 7346 ‘were
met or approximated.’” J.A. 4 (quoting J.A. 12–13). We see
no legal error in the Veterans Court’s analysis.
Indeed, Mr. Combs argued to the Veterans Court that
the correct standard to rate by analogy required determin-
ing whether his symptoms approximated those listed in
the schedule. See J.A. 202 (“The duties to maximize bene-
fits, rate by analogy, and apply the higher of two evalua-
tions mean even if Mr. Combs’s symptoms don’t exactly
match the words listed in the schedule, he is still entitled
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COMBS v. COLLINS 7
to a higher evaluation when his symptoms closely approxi-
mate those listed in the schedule.” (emphasis added));
J.A. 202 (“The Secretary argued Mr. Combs didn’t point to
any evidence of record before the August 2000 [regional of-
fice] that demonstrated he suffered from vomiting and ma-
terial weight loss at the time, but he didn’t have to. He only
had to approximate it.” (emphasis added) (quotation and ci-
tation omitted)); J.A. 202 (“His weight gain closely approx-
imates—or is analogous to—the weight loss the schedule
contemplates.”).
The Veterans Court applied the correct legal standard
when reviewing the Board’s determination. It reviewed the
evidence of Mr. Combs’s symptoms in 2000, as well as the
60% rating criteria for DC 7346, and agreed with the
Board’s decision that the evidence in 2000 did not undebat-
ably establish that the criteria for a 60% rating was met or
approximated. To the extent that Mr. Combs challenges
the Veterans Court’s determination that he did not clearly
and unmistakeably establish that his symptoms approxi-
mated the 60% rating, that is an application of law to fact
over which we lack jurisdiction. See Cook v. Principi,
353 F.3d 937, 939 (Fed. Cir. 2003) (“This court is limited by
its jurisdictional statute and, absent a constitutional issue,
may not review challenges to factual determinations or
challenges to the application of a law or regulation to
facts.”).
IV
We have considered Mr. Combs’ remaining arguments
and find them unpersuasive. Because we find that the Vet-
erans Court did not misinterpret 38 C.F.R. § 4.20 when re-
viewing Mr. Combs’ CUE claim, we affirm.
AFFIRMED
COSTS
No costs.
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