Case: 20-2174 Document: 57 Page: 1 Filed: 12/28/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TERRY L. JONES,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-2174
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2174, Judge Joseph L. Toth,
Judge Michael P. Allen, Judge William S. Greenberg.
______________________
Decided: December 28, 2021
______________________
BILL HERREN, Herren Law Office, Houston, TX, argued
for claimant-appellant.
IOANA CRISTEI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, ERIC P. BRUSKIN, MARTIN F.
HOCKEY, JR.; BRIAN D. GRIFFIN, ANDREW J. STEINBERG,
Case: 20-2174 Document: 57 Page: 2 Filed: 12/28/2021
2 JONES v. MCDONOUGH
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before MOORE, Chief Judge, SCHALL and STOLL, Circuit
Judges.
SCHALL, Circuit Judge.
Terry L. Jones appeals the decision of the Court of Ap-
peals for Veterans Claims (“Veterans Court”) in Jones v.
Wilkie, No. 19-2174,
2020 WL 356465 (Vet. App. Jan. 22,
2020). In its decision, the Veterans Court affirmed the De-
cember 6, 2018 decision of the Board of Veterans’ Appeals
(“Board”) that denied Mr. Jones an effective date earlier
than August 30, 2006, for the award of service connection
for major depressive disorder (“MDD”). Appx. 74. 1 For the
reasons set forth below, we dismiss for lack of jurisdiction.
BACKGROUND
I.
Mr. Jones served two tours in the United States Navy.
The first tour began on June 3, 1966, and ended on October
30, 1969. Appx. 11. The second tour began on September
27, 1972, and ended on August 27, 1973. Id. at 14.
On June 15, 1973, in Long Beach, California, Mr. Jones
received a psychiatric evaluation from Dr. W. C. Rader. In
his evaluation, Dr. Rader wrote that Mr. Jones exhibited
“obvious anxiety and some underlying depression.” Id. at
13. However, Dr. Rader’s diagnosis of Mr. Jones was lim-
ited to “immature personality disorder.” Id. On August 27,
1 We refer to the Appendix filed by Mr. Jones as
“Appx.” and the Supplemental Appendix filed by the Secre-
tary as “S.A.”
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JONES v. MCDONOUGH 3
1973, Mr. Jones was honorably discharged from the Navy.
Id. at 14.
In November of 1979, Mr. Jones filed a claim with the
Veterans Administration, now known as the Department
of Veterans Affairs (“VA”), Regional Office (“RO”) for ser-
vice-connected disability compensation. He described his
disability as “[p]sychiatric evaluation made on June 15,
1973 with medical report.” Id. at 15.
The RO denied Mr. Jones’s claim on March 25, 1980.
Id. at 16. Although the RO noted “[r]ecords supplied by
[the] vet” that showed a psychiatric evaluation had been
performed at “Long Beach,” and that the records indicated
that Mr. Jones had been diagnosed with “immature person-
ality disorder,” id., the RO denied the claim because imma-
ture personality disorder is a “constitutional or
developmental abnormality, not a disability under the
law,” id. at 17. Mr. Jones did not perfect an appeal of this
decision. Jones,
2020 WL 356465 at *1.
On December 31, 2002, Mr. Jones filed another claim
for service-connected disability compensation for, in part,
“depression anxiety,” asserting that his condition began in
1966 and was treated in 1973 in “Long Beach.” S.A. 100;
Appx. 22. In an April 10, 2003 rating decision, the RO
stated that Mr. Jones had “reopened” his 1979 claim of ser-
vice connection for “[d]epression with anxiety.” Appx. 19.
The RO denied Mr. Jones’s “reopened” claim, stating that
“[s]ervice connection for Major depressive disorder is de-
nied since this condition neither occurred in nor was caused
by service.” Id. at 20. The RO did find that MDD was re-
flected in treatment records for Mr. Jones dated January
22, 2003 through March 7, 2003, but that this was not re-
lated to Mr. Jones’s military service. Id. at 19–20. The RO
concluded that “a rating decision dated March [25], 1980
denied service connection for immature personality disor-
der[,]” and that this was “the only mental type diagnosis
received during service.” Id. at 20. Mr. Jones did not
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4 JONES v. MCDONOUGH
appeal the 2003 RO decision and it became final. Jones,
2020 WL 356465 at *1.
On August 30, 2006, Mr. Jones filed another claim for
several disabilities, including “anxiety and depression.”
Appx. 23. The RO treated this claim as a request to reopen
the previously denied December 31, 2002 claim for MDD,
and on January 30, 2007, denied reopening for lack of new
and material evidence.
Id. at 24–26.
On March 27, 2007, Mr. Jones submitted the June 1973
psychiatric evaluation to the RO for consideration. S.A.
84–86. On May 29, 2007, the RO issued another rating de-
cision denying Mr. Jones’s claim. Appx. 28–30. In its de-
nial, the RO explained that Mr. Jones had not submitted
new and material evidence regarding service connection for
MDD, and that the June 1973 evaluation showed only a
diagnosis of “immature personality disorder.” Id. at 30.
In February 21, 2008, Mr. Jones filed a Notice of Disa-
greement with the May 29, 2007 rating decision. S.A. 80.
On February 23, 2009, the RO issued a statement of the
case. Id. at 51–79. In the statement of the case, the RO
reiterated that Mr. Jones had not submitted any new and
material evidence, and that the evidence of record “failed
to show [Mr. Jones] [was] diagnosed with major depressive
disorder while on active duty.” Id. at 77–78. The RO ex-
plained that the 1973 evaluation only showed an in-service
diagnosis of immature personality disorder, and that per-
sonality disorders “are behavioral conditions which begin
in early childhood.” Id. The RO stated that the evidence
did not sufficiently demonstrate that Mr. Jones incurred
his diagnosed MDD in service. Id. at 78–79.
In a decision dated September 21, 2012, the Board con-
sidered Mr. Jones’s appeal of the May 29, 2007 decision.
Appx. 34–51. Among other things, the Board remanded the
claim to the RO for further development of the issue of ser-
vice connection for anxiety and depression. Id. at 49–50.
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JONES v. MCDONOUGH 5
On November 19, 2012, counsel for Mr. Jones submit-
ted to the RO the psychological evaluation of Mr. Jones by
clinical psychologist Jim C. Whitley dated October 15,
2012. S.A. 39–47. Dr. Whitley concluded that Mr. Jones
had “a Generalized Anxiety Disorder and a Major Depres-
sive Disorder, both of which more likely than not were in-
curred while in the service.” Id. at 47. Based upon this
new evidence, the RO reopened Mr. Jones’s psychiatric con-
dition claim and, on April 23, 2015, awarded service con-
nection for MDD with a rating of 50 percent disabling,
effective August 30, 2006, the date that Mr. Jones filed his
claim that the RO had treated as a claim to reopen the pre-
viously denied December 31, 2002 claim for MDD. Appx.
24–26, 67–69.
Mr. Jones appealed to the Board again, arguing that he
was entitled to an earlier effective date. In its December 6,
2018 decision, the Board denied the appeal, noting that Mr.
Jones’s December 31, 2002 claim “reopen[ed]” his 1979
claim for service connection for a psychiatric disorder.
Appx. 74–75. The Board determined that, although the
“VA did not properly adjudicate the broader claim of ser-
vice connection for a psychiatric disability filed in Novem-
ber 1979,” the 2003 RO Decision had adjudicated and
specifically denied service connection for MDD. Appx. 75,
77–78. The Board further determined that the decision
had become final. Id. at 78. The Board thus concluded that
August 30, 2006, was the earliest possible effective date for
Mr. Jones’s service-connected depression under the law.
Id. at 79.
II.
On appeal to the Veterans Court, Mr. Jones argued
that the Board erred in finding that the 2003 RO decision
adjudicated his 1979 claim. In that regard, he contended
that the 2003 RO adjudicator was unaware of his 1979
claim and, without such awareness, could not have adjudi-
cated that claim. See Jones,
2020 WL 356465 at *2. Mr.
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6 JONES v. MCDONOUGH
Jones also contended that the Board improperly applied
the implicit denial rule, which, he argued, requires
knowledge of the earlier claim.
Id. 2
III.
In affirming the Board’s decision, the Veterans Court
found no clear error in the Board’s factual conclusion that
the 2003 RO decision adjudicated Mr. Jones’s 1979 claim
and specifically denied service connection for MDD. Jones,
2020 WL 356465 at *2. The court further concluded that,
despite Mr. Jones’s arguments concerning the implicit de-
nial rule, that rule was inapplicable because the Board ex-
pressly denied Mr. Jones’s claim for depression in 2003.
Id.
Finally, the court held that August 2006 was the earliest
possible effective date for Mr. Jones’s depression because
he did not appeal the 2003 RO decision.
Id.
DISCUSSION
I.
On appeal, Mr. Jones argues that the Veterans Court
misinterpreted the implicit denial rule. He contends that
the court erred because it “gave no consideration to
whether the language of the 2003 rating decision, which
expressly denied the 2002 claim, would make it clear to a
reasonable person that it was intended to dispose of the
1979 claim as well.” Appellant’s Br. 10; see also id. at 7, 11.
Mr. Jones points out that knowledge of a claim is one of the
factors that the Veterans Court uses when applying the im-
plicit denial rule. Id. at 11 (quoting Batson v. Shulkin, 686
2 The implicit denial rule, also referred to as the im-
plied denial rule, “provides that, in certain circumstances,
a claim for benefits will be deemed to have been denied,
and thus finally adjudicated, even if the [VA] did not ex-
pressly address that claim in its decision.” Adams v.
Shinseki,
568 F.3d 956, 961, 962 (Fed. Cir. 2009).
Case: 20-2174 Document: 57 Page: 7 Filed: 12/28/2021
JONES v. MCDONOUGH 7
F. App’x 878, 880 (Fed. Cir. 2017)); Reply Br. 3–4 (quoting
Adams,
568 F.3d at 963–64). Mr. Jones argues that the RO
was unaware of his 1979 claim until the Board’s December
6, 2018 decision. See Appellant’s Br. 11. Accordingly, he
argues, the 2003 RO decision could not have implicitly de-
nied his 1979 claim. Id.; Reply Br. 3–4.
II.
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 a Veterans Court’s decision regarding a rule of
law, including a decision about the interpretation or valid-
ity of any statute or regulation.
Id. § 7292(a), (d)(1). We
lack jurisdiction to entertain a challenge to a factual deter-
mination or a challenge to the application of a law or regu-
lation to the facts of a particular case where, as here, the
appeal presents no constitutional issue. Id. § 7292(d)(2).
Although Mr. Jones’s appeal is presented as a legal
challenge to the court’s interpretation of the implicit denial
rule, we note that the Veterans Court never reached that
rule, instead relying on the Board’s express denial of Mr.
Jones’s 1979 claim. Thus, Mr. Jones’s appeal hinges on his
challenge to the Board’s 2018 determination that the 2003
RO decision had adjudicated and expressly denied service
connection for his 1979 claim, Appx. 75, 3 a determination
3 Specifically, in its December 2018 decision, the
Board stated:
Although the Board agrees that, as the Veteran’s
representative alleges, VA did not properly adjudi-
cate the broader claim of service connection for a
psychiatric disability filed in November 1979 until
much later, the eventual April 2003 denial in that
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8 JONES v. MCDONOUGH
that the Veterans Court found to not be clearly erroneous,
Jones,
2020 WL 356465 at *2. Such a challenge to a factual
determination is not within this court’s jurisdiction under
38 U.S.C. § 7292(d)(2).
Further, although the Veterans Court did not reach the
implicit denial rule, to the extent Mr. Jones argues that the
facts of his case do not support application of that rule, he
presents a claim beyond the scope of our jurisdiction. The
reason is that such a claim represents a challenge to the
application of law to fact under
38 U.S.C. § 7292(d)(2).
Accordingly, because Mr. Jones has not presented an
issue over which we have jurisdiction, the appeal is dis-
missed.
DISMISSED
COSTS
No costs.
matter was unappealed [and] became final. Appx.
75.
