William Sheppard v. Denis McDonough ( 2021 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4776
WILLIAM SHEPPARD , APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided March 15, 2021)
Jennifer L. Lohnes, of Charlottesville, VA, and Benjamin R. Binder, of Tampa, FL, for the
appellant.
William A. Hudson, Jr., Principal Deputy General Counsel; Mary Ann Flynn, Chief
Counsel; Christopher W. Wallace, Deputy Chief Counsel; and Abigail J. Schopick, all of
Washington, D.C., were on the brief for the appellee.
Before BARTLEY, Chief Judge, and ALLEN and FALVEY, Judges.
FALVEY, Judge, filed the opinion of the Court. BARTLEY, Chief Judge, filed a dissenting
opinion.
FALVEY, Judge: Army veteran William Sheppard appeals through counsel a May 28,
2019, Board of Veterans' Appeals decision denying reopening of claims for service connection for
an unspecified right-hand disability (other than the service-connected residuals of removal of a
ganglion cyst in the right hand) and for a mental disease. The appeal is timely and the Court has
jurisdiction to review the Board decision. See 38 U.S.C. §§ 7252(a), 7266(a). On August 10, 2020,
the Court issued a single-judge decision affirming the May 2019 Board decision. On August 31,
2020, Mr. Sheppard filed a motion for single-judge reconsideration or, in the alternative, panel
review. The Court grants panel review and will withdraw the August 10, 2020, decision and issue
this decision in its stead.
We are first asked to decide whether the Board failed to provide notice that there was a
new-and-material-evidence issue where the RO had previously reopened the unspecified right-
hand disability and mental disease claims. Although Jackson v. Principi, 265 F.3d 1366, 1369
(Fed. Cir. 2001), was issued before VA promulgated 38 C.F.R. § 20.101(d),1 Jackson's analysis is
applicable to cases like Mr. Sheppard's, particularly because § 20.101(d) does not apply to requests
to reopen claims. Further, Mr. Sheppard did not meet his burden of proving prejudice on appeal.
Thus, the arguments in his briefs and motion for panel review are unpersuasive or without merit.
We are also asked to decide whether the Board erred by not addressing reasonably raised
claims related to the unspecified right-hand disability and mental disease claims. But Mr.
Sheppard's arguments about these matters are underdeveloped and unpersuasive. For these
reasons, we will affirm the May 2019 Board decision.
I. FACTS
Mr. Sheppard served on active duty from September 1971 to May 1972. Record (R.) at
2954. In June 2006, he filed a claim for service connection for his right hand. R. at 3958. In
September 2006, a regional office (RO) granted service connection for right wrist ganglion cyst
removal and assigned a noncompensable rating effective June 2006, finding that a VA examination
had shown that, although the veteran reported intermittent pain and decreased strength in the right
hand, a compensable rating was not warranted because there was no limited range of motion. R.
at 3941-42.
In July 2007, he requested service connection for stress and depression. R. at 3932. In
August 2007, Mr. Sheppard stated that he experienced stress and depression after developing
frostbite during basic training and because of his in-service hand surgery. R. at 3911. In October
2007, he stated that his hand burned and "sho[]t sharp pain up into my arm since I have been on
crutches." R. at 3897 (also stating he wore a wrist brace). In March 2008, the RO denied service
connection for a mental disease and an unspecified right hand disability (other than the service-
connected residuals for cyst removal). R. at 3817-19. The veteran did not appeal this decision and
it became final.
In November 2010, Mr. Sheppard requested that VA reopen his right hand claim. R. at
3758. In August 2011, the RO declined to reopen the unspecified right hand disability claim
because new and material evidence had not been submitted. R. at 3632 (stating that records from
the Columbia VA medical center were reviewed but that there was no evidence establis hing a
1
Effective February 2019, VA redesignated this regulation as 38 C.F.R. § 20.104(c)-(d).
2
nexus between his condition and service). The veteran did not appeal this decision and it too
became final.
In March 2013, Mr. Sheppard again requested that VA reopen his right hand claim. R. at
3620 (noting pain and numbness). In March 2014, a VA examiner stated that the veteran was
service connected for his right wrist and that his condition continued to worsen, noting that his
wrist burned, that there was numbness and tingling in his fingers, and that pain radiated down from
his neck. R. at 3557. The examiner also indicated that the veteran reported that he was diagnosed
with carpel tunnel syndrome in 2000, but that he was later informed that he did not have that
condition. Id. (examiner noting that his splint was a carpel tunnel splint and that his symptoms
correlated with that condition). The examiner diagnosed limited wrist motion. R. at 3556.
In April 2014, the RO granted a 10% rating for residuals of right wrist cyst remo val,
effective March 2013, basing the increased rating on painful motion of the wrist under 38 C.F.R.
§ 4.59. R. at 3105-07 (noting that that regulation allows for consideration of functional loss due to
painful motion). But the RO declined to reopen the unspecified right hand disability and mental
disease claims because new and material evidence had not been submitted. R. at 3105, 3109
(stating that records from the Columbia VA medical center had been reviewed for both conditions).
That same month, Mr. Sheppard filed a Notice of Disagreement (NOD) as to that decision. R. at
3096-102.
In June 2014, the RO issued another rating decision, again declining to reopen the
unspecified right hand disability and mental disease claims because new and material evidence
had not been submitted. R. at 2990-92 (stating that Social Security Administration (SSA) records
had been reviewed). In October 2014, he filed another NOD, stating that if he did not wear his
wrist brace all the time his hand would ache and burn and that he was stressed and depressed
because he did not have control of his daily activities. R. at 2956 -76 (noting that he had to take
pain medication).
In September 2016, the RO issued a Statement of the Case (SOC), finding that the
unspecified right hand disability and mental disease claims were reopened, but denying them on
the merits because the SSA, VA treatment, and private medical records did not establish a nexus
between those conditions and service. R. at 98-99. In October 2016, Mr. Sheppard perfected his
appeal and requested a Board hearing at his local RO. R. at 58-60. In June 2017, he amended his
request for a hearing in the Board's Washington, D.C., office. R. at 44 -45. In April 2019, VA
3
informed him that it had scheduled his hearing, R. at 24, and, later that month, the veteran withdrew
his request, stating that a hearing was unnecessary to decide his case and that he did not want to
travel "to try and provide any new information" about his conditions, R. at 18.
In May 2019, the Board issued the decision on appeal. The Board found that new and
material evidence had not been submitted and thus denied reopening the unspecified right hand
disability and mental disease claims. R. at 5.
II. ANALYSIS
A. Board Declining to Reopen the Unspecified Hand Disability and Mental Disease Claims
First, Mr. Sheppard states that whether new and material evidence has been submitted is a
jurisdictional requirement that the Board must consider. Appellant's Brief (Br.) at 6 -7. Indeed, "the
Board has a jurisdictional responsibility to consider whether it was proper for a claim to be
reopened." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). He therefore argues that
38 C.F.R. § 20.101(d) applies to his case and that, contrary to the regulation, the Board did not
provide him notice or the opportunity to respond. Appellant's Br. at 6-7.
Before February 2019, § 20.101(d) authorized the Board to "address questions pertaining
to its jurisdictional authority to review a particular case, including, but not limited to, determining
whether [NODs] and Substantive Appeals are adequate and timely, at any stage in a proceeding
before it, regardless of whether the agency of original jurisdiction addressed such question(s)." 38
C.F.R. § 20.101(d) (2018).
That regulation also provided that
when the Board, on its own initiative, raises a question as to a potential
jurisdictional defect, all parties to the proceeding and their representative(s), if any,
will be given notice of the potential jurisdictional defect(s) and granted a period of
60 days following the date on which such notice is mailed to present written
argument and additional evidence relevant to jurisdiction and to request a hearing
to present oral argument on the jurisdictional question(s).
Id.2
2
Effective February 2019, VA redesignated this regulation as 38 C.F.R. § 20.104(c)-(d). Under § 20.104(c),
[t]he Board shall decide all questions pertaining to its jurisdictional authority to review a particular
case. When the Board, on its own initiative, raises a question as to a potential jurisdictional defect,
all parties to the proceeding and their representative(s), if any, will be given notice of the potential
jurisdictional defect(s) and granted a period of 60 days following the date on which such notice is
4
The Secretary asserts that Mr. Sheppard does not acknowledge that the U.S. Court of
Appeals for the Federal Circuit has issued precedent on the matter of notice in this exact situation.
Secretary's Br. at 9-10 (citing Jackson, 265 F.3d at 1369). The Secretary explains that the Federal
Circuit addressed whether the Board must give notice when it determines that new and material
evidence has not been submitted where the RO had previously reopened the claim. Id. The
Secretary notes that the Federal Circuit found that a claimant is not prejudiced in such situations,
even without additional notice, because of the large degree of overlap in the evidence that would
be required for either reopening a claim or addressing that same claim on the merits. Id. (citing
Jackson, 265 F.3d at 1370-71).
Mr. Sheppard responds that Jackson was issued before VA promulgated § 20.101(d) and
that the due process provided in that regulation goes beyond the "fundamental principles of
fairness" raised in Jackson. Appellant's Reply Br. at 1-3. The Court notes that Jackson was issued
in September 2001; VA adopted § 20.101(d) in October 2001, 66 Fed. Reg. 53,339 (2001); and it
became effective in November 2001, id. With that in mind, we will first address why § 20.101(d)
(now § 20.104(c)-(d)) does not apply to requests to reopen claims, and then discuss why Jackson
is thus still good law and applies to cases like Mr. Sheppard's.
i. 38 C.F.R. § 20.101(d) (now 38 C.F.R. § 20.104(c)-(d))
In April 2001, VA proposed to amend its regulations to clarify that the Board may address
questions related to its jurisdiction in the first instan ce. 66 Fed. Reg. 17,840 (2001). As
background, VA explained that filing an appeal with the Board was a three-step procedure: (1) the
claimant filed an NOD; (2) the agency of original jurisdiction (AOJ) issued an SOC; and (3) the
claimant then filed a Substantive Appeal (SA). Id. at 17,841. VA noted that an August 1999 VA
General Counsel (GC) precedent opinion held that the Board may address the question of the
timeliness of a Substantive Appeal, no matter if the AOJ addressed that question. Id. (citing VA
Gen. Coun. Prec 9-99 (Aug. 18, 1999)). The opinion further held that the Board may dismiss an
mailed to present written argument and additional evidence relevant to jurisdiction and to request a
hearing to present oral argument on the jurisdictional question(s).
And, under § 20.104 (d)(1), for legacy appeals, claimants
have the right to appeal a determination made by the agency of original jurisdiction that the Board
does not have jurisdictional authority to review a particular case. Jurisdictional questions which a
claimant may appeal, include, but are not limited to, questions relating to the timely filing and
adequacy of the Notice of Disagreement and the Substantive Appeal.
5
appeal when it discovers in the first instance that no Substantive Appeal had been filed in a case
certified to it for appellate review, or that the Substantive Appeal was not timely filed. Id. The
opinion noted, however, that the Board's dismissal of an appeal under those circumstances raised
the possibility that a claimant will be prejudiced by not having been afforded the benefit of all
procedural safeguards, such as the right to notice, to a hearing, and to submit evidence in support
of a claim. Id. Thus, it found that, if the Board intended to dismiss an appeal on this basis, it should
afford the claimant adequate procedural protections regarding n otice and the opportunity to be
heard. Id.
VA stated that the proposed regulation (§ 20.101(d)) was to make clear that the Board may
dismiss an appeal when it determines that it lacks jurisdiction, regardless of the AOJ's failure to
adjudicate the jurisdictional question. Id. at 17841. VA explained that the regulation would include
a requirement that the Board ensure that no prejudice to a claimant would result from the Board's
sua sponte consideration of a jurisdictional question. Id. VA concluded that the Board would thus
follow procedural safeguards—including notice and the opportunity to submit additional evidence
and argument on the relevant jurisdictional questions and addressing such questions at a hearing—
before dismissing an appeal based on jurisdictional defects. Id. Effective February 2019, VA
replaced the appeals process with a new review process that offered various review lanes, such as
going straight from an initial AOJ decision to a Board appeal. 84 Fed. Reg. 138 (implementing the
Veterans Appeals Improvement and Modernization of 2017 (AMA)). In so doing, VA redesignated
§ 20.101 as § 20.104 and, in § 20.104(c), removed references to procedural steps, such as NODs
and SAs, that are not part of the AMA. Id. at 180. But, for legacy appeals, VA continued to include
those procedural steps in § 20.104(d) when discussing jurisdictional questions. Id.3
Mr. Sheppard is correct that we assess a regulation's meaning by first reviewing its text.
See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). In so doing, if no uncertainty
exists, the "regulation then just means what it means—and the court must give it effect." Kisor v.
Wilkie, 139 S. Ct. 2400, 2415 (2019). Further, courts "must apply all traditional methods of
interpretation to any rule, and must enforce the plain meaning those methods uncover." Id. at 2419.
Here, § 20.101(d) authorized the Board to address questions pertaining to its jurisdictional
authority, including determining whether NODs and SAs are adequate and timely, at any stage in
3
Although § 20.104(d) may not be a model of clarity, the parties raise no issue as to its validity and thus,
because it is not relevant to addressing the parties' arguments, the Court will not address any such matter.
6
a proceeding before it; and that when the Board, on its own initiative, raised such a defect, it had
to provide notice, an opportunity to submit argument and evidence, and a hearing. When VA
redesignated this regulation as § 20.104(c)-(d) it continued to include the NOD and SA examples
for legacy appeals. Thus, the plain language reflects that this regulation applies to situations in
which the jurisdictional question (e.g., whether an NOD was timely or an SA was filed) differs
from a question on the merits of the claim (e.g., whether there was a nexus warranting service
connection).
Although the list of examples in the regulation is not exhaustive, the history of the
regulation demonstrates that the regulation only be applied when the jurisdictional and merits
questions differ. See 66 Fed. Reg. 17,841 (noting the prior three-step process for appealing to the
Board (NOD, SOC, SA), providing an example from the 1999 GC opinion about SAs, and stating
that the regulation provided the Board with authority to review relevant jurisdictional questions
even if the AOJ did not address them); 84 Fed. Reg. 138 (VA changing the regulation to comply
with the new AMA procedural steps); see also Kisor, 139 S. Ct. at 2415 (holding that, before
concluding that a rule is ambiguous, a court must exhaust all the traditional tools of construction
and, to make that effort, must carefully consider the text, structure, history, and purpose of a
regulation). And, although § 20.101(d) notes that questions related to jurisdictional authority
include, but are not limited to, determining whether NODs and SAs are adequate and timely, there
is at least one other example, at least for legacy appeals, where the jurisdictional question would
significantly differ from a merits question: whether there were any deficiencies regarding the SOC.
We acknowledge that, in the regulatory history, VA cited Barnett v. Brown, 83 F.3d 1380,
1383 (Fed. Cir. 1996), a case in which the Board had denied a service-connection claim and then
denied the claimant's request to reconsider its ruling after determinin g that no new and material
evidence had been submitted. But VA cited that case not to include new and material evidence
assessments under the regulation, but to emphasize the general requirement that any statutory
tribunal must ensure that it has jurisdiction before adjudicating the merits and that a potential
jurisdictional defect may be raised by the tribunal, sua sponte, or by any party at any stage in the
proceedings. Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230–31 (1990)); see 66 Fed. Reg.
17,841 (VA, after citing Barnett, stating that the regulation made clear that the Board may address
jurisdictional questions in the first instance and then noting the safeguards when the Board raised
those questions). Indeed, it seems that VA intended to distinguish the new and material evidence
7
question from other jurisdictional matters because, when referencing Barnett, it used the phrase
"in a case discussing the Board's jurisdiction in another context." 66 Fed. Reg. 17,841.
We also note that the Board did not address Mr. Sheppard's request to reopen in the first
instance. Instead, the RO first decided that matter. See R. at 7, 98-99. Further, logic seems to dictate
that the Board did not sua sponte raise the issue of new and material evidence, given that it is
statutorily obligated to always review whether there was new and material evidence sufficient to
reopen a claim. Prillaman v. Principi, 346 F.3d 1362, 1365-66 (Fed. Cir. 2003) (noting that the
decision in Jackson made clear that even when a claim was denied on the merits, the Board must
review the RO's underlying new and material evidence determination to determine whether a claim
was properly reopened). This underscores the difference between new and material evidence
determinations and other jurisdictional matters. That is, no one should ever be surprised that the
Board independently considered whether there was sufficient evidence to reopen a claim because
it is required to do so. However, although the Board generally must ensure its jurisdiction, if it sua
sponte raises an issue with an NOD, SOC, or SA, that may come as a surprise to a claimant and
necessitates different evidence and argument than the merits of the claim.
In addition, how the Board disposes of requests to reopen claims versus other jurisdictional
matters further demonstrates the distinction between the two. When the Board determines that
there is no new and material evidence, it does not find that it lacks jurisdiction to consider the
claim as a whole and thus dismiss the appeal of the claim, as it does for other jurisdictional matters.
See, e.g., Fenderson v. West, 12 Vet.App. 119, 128 (1999) (the Board determining that, because
the appellant had not filed a Substantive Appeal as to two claims, those issues were not before the
Board, while denying other claims it considered properly before it); Marsh v. West, 11 Vet.App.
468, 469-70 (1998) (the Board dismissing the veteran's appeal due to an untimely NOD); see also
Skaar v. Wilkie, No. 17-2574, 2020 WL 7393453, at *13 (Vet. App. Dec. 17, 2020) (noting that,
because no SOC had been issued regarding a claim, the Board may order the RO to complete the
required procedural development); Evans v. Shinseki, 25 Vet.App. 7, 9-10, 14–15 (2011) (the
Court holding that, under § 20.101(d), the Board had to provide notice of the perceived defect in
the SA, where the Board had dismissed the claims because those issues were not included in the
SA). Rather, the Board denies the request to reopen. See, e.g., R. at 5 (here, the Board denying the
request to reopen the claims for service connection for an unspecified right-hand disability and a
mental disease); Shade v. Shinseki, 24 Vet.App. 110, 112 (2010) (the Board denying a request to
8
reopen a claim because a nexus opinion had not been provided); see also Woehlaert v. Nicholson,
21 Vet.App. 456, 459-60 (2007) (although holding that "a summary dismissal of the claim" is
required if the Board finds that new and material evidence has not been submitted, the Court
affirmed the Board's decision to deny the request to reopen because there was no new and material
evidence).
The Federal Circuit's and our cases may characterize the new and material evidence
question as a jurisdictional one. See generally Dissent; see also Prillaman v. Principi, 346 F.3d
1362, 1365 (Fed. Cir. 2003) (finding that the "mere use of the term 'jurisdictional'" to characterize
new and material evidence determinations does not invoke de novo review at all levels). But how
the Board has always handled and disposed of requests to reopen versus other jurisdictional matters
and that our Court has never faulted the Board for denying a request to reopen, rather than
dismissing the appeal of that claim, further demonstrates the distinction between the two. See 66
Fed. Reg. 17,841 (VA explaining that § 20.101(d) makes clear that the Board may dismiss an
appeal when it determines that it lacks jurisdiction, regardless of the RO's failure to adjudicate the
jurisdictional question); id. (VA further explaining that the regulation will provide procedural
safeguards before the Board dismisses an appeal based on jurisdictional defects).
And, as we will discuss next in relation to Jackson, when the Board reviews a request to
reopen a claim, it must assess whether new and material evidence was submitted . And, although
we recognize that a new and material evidence determination differs from a determination on the
merits, see Shade, 24 Vet.App. at 117, the assessment on whether to reopen necessarily overlaps
with the merits of the claim. For example, the Board would review the same or similar evidence
to determine whether there was new and material evidence of nexus sufficient to reopen the claim
as it would to assess whether there was nexus warranting an award of service connection. But, in
the cases in which § 20.101(d) (now § 20.104(c)-(d)) applies, the Board would review different
evidence to determine jurisdiction (e.g., evidence of whether an NOD was timely, an SOC was
issued, or an SA was filed) than it would to assess the merits (e.g., evidence of nexus warranting
service connection). Thus, in those situations, the additional procedural safeguards are necessary
because a claimant would presumably have only submitted argument on the merits of the claim
(e.g., nexus), and not on a jurisdictional issue (e.g., whether an NOD was timely, an SOC was
issued, or an SA was filed). That is not true for requests to reopen claims and thus § 20.101(d)
(now § 20.104(c)-(d)) does not apply to those cases.
9
ii. Jackson
As a result, because § 20.101(d) (now § 20.104(c)-(d)) does not apply to requests to reopen,
we find that Jackson is still germane. And although Jackson was issued before VA adopted
§ 20.101(d) and Mr. Sheppard does not raise a due process argument, the Federal Circuit's
reasoning and logic in Jackson are still equally valid and persuasive here. Mr. Jackson argued that
the Board violated his due process rights because the RO had determined that new and material
evidence existed and he was not notified that the new-and-material-evidence issue would be in
dispute before the Board. Jackson, 265 F.3d at 1368 (noting that the RO had denied the claim on
the merits because Mr. Jackson had not established that his back disability related to service). The
Federal Circuit determined that Mr. Jackson was on notice that he still needed to persuade the
Board that his newly submitted evidence established a nexus between his disability and service.
Id. at 1370-71.
Similarly, Mr. Sheppard was also on notice that he still needed to persuade the Board that
his newly submitted evidence showed a nexus between his unspecified hand and mental health
disabilities and service. See R. at 98-99 (in the September 2016 SOC, the RO denied these claims
because the SSA, VA treatment, and private medical records he submitted did not establish a nexus
between those conditions and service); see also R. at 3632 (in August 2011, the RO declined to
reopen the unspecified hand claim because the VA medical records he submitted did not establish
a nexus between that condition and service). Moreover, like in Jackson, there is a large degree of
overlap in the evidence necessary to reopen the unspecified hand and mental health claims and to
address those same claims on the merits because both require evidence of nexus. See R. at 7-8 (the
Board declining to reopen the claims because there was no evidence of an in -service disability or
injury (separate from the cyst removal), in-service incurrence, or nexus); see also R. at 98-99,
3632; Jackson, 265 F.3d at 1370-71. The Court thus finds Mr. Sheppard's argument—that "[t]his
issue is more than a procedural oversight, as the [decision review officer] did not notify [a]ppellant
of his right to submit evidence and argument specific to reopening—which is wholly separate from
a merits analysis," Appellant's Br. at 9—unpersuasive. And, although we recognize that there is a
lower threshold for reopening a claim than for establishing service connection, see Shade, 24
Vet.App. at 117, both questions—whether there was a reasonable possibility of substantiating the
claims and whether service connection was warranted for the unspecified hand disability and
mental disease—depend on whether there was evidence of a nexus.
10
iii. Prejudicial error analysis
In addition, Mr. Sheppard has identified no newly submitted evidence that shows nexus,
see Appellant's Br. at 4-9; Appellant's Reply Br. at 1-3, and the Court is aware of none. Nor does
the veteran argue that he has any such evidence to have provided the Board, had it informed him
that there may be a new-and-material-evidence issue. See Appellant's Br. at 9 (stating simply that
he "could have" presented arguments and additional evidence); see also Jackson, 265 F.3d at 1370-
71 (finding that nexus evidence would also support the merits of a claim). Thus, even if § 20.101(d)
(now § 20.104(c)-(d)) applied, Mr. Sheppard has failed to prove that he was prejudiced by any
Board failure to provide notice under that regulation or to discuss it. See 38 U.S.C. § 7261(b)(2)
(mandating that the Court must "take due account of the rule of prejudicial error"); Shinseki v.
Sanders, 556 U.S. 396, 409-410 (2009) (stating that the appellant bears the burden of proving
prejudice on appeal); Simmons v. Wilkie, 30 Vet.App. 267, 280 (2018) (discussing the appellant's
burden to prove prejudicial error).
The veteran also asserts that, had the Board informed him that it did not consider his claims
reopened, he could have attended a hearing and presented evidence. 4 Appellant's Br. at 9. But, the
Board gave him the opportunity to provide nexus evidence during a hearing, and Mr. Sheppard
withdrew his request because he felt that a hearing was unnecessary to decide his case and he did
not want to travel "to try and provide any new information" about his conditions. R. at 17-19; see
also R. at 44-45, 58-60 (amending his request for a Board hearing at his local RO and asking that
it instead be held at the Board's offices in Washington, D.C., before the withdrawal). To be clear,
we recognize that a new and material evidence determination is different from a merits
determination. But, as stated, there is overlap in the evidence necessary to reopen the unspecified
hand and mental health claims and to address those same claims on the merits because both require
evidence of nexus. It is unclear how the outcome would have changed if the Board had informed
Mr. Sheppard about the lower hurdle of reopening (a gateway to obtaining benefits), where the
veteran stated, on the merits (the higher hurdle), that he did not want to provide any new
information about his conditions. In other words, even if he cleared the lower hurdle, he had no
4
In his motion for panel review, Mr. Sheppard argues that this statement contradicts the Court's earlier
statement that he did not argue that he had any evidence to provide the Board had it informed him there was a
jurisdictional issue. Mot. for Panel Review at 5. The veteran misunderstands the Court's statements. Although Mr.
Sheppard generally asserts that he "could have" presented additional evidence, see Appellant's Br. at 9, he never
specifies what that evidence is, aside from stating it would be hearing testimony, Mot. for Panel Review at 5. This is
insufficient to show prejudicial error. See Sanders, 556 U.S. at 409-10.
11
argument or evidence to provide at the hearing, and still offers none, that would establish the actual
benefit he sought (service connection for his conditions). The Court is thus also not convinced that
he was prejudiced by any Board error related to a hearing. See 38 U.S.C. § 7261(b)(2); Sanders,
556 U.S. at 409-10; Simmons, 30 Vet.App. at 280.Thus, contrary to Mr. Sheppard's request, we
will not reverse the Board's decision to decline to reopen the unspecified hand disability and mental
disease claims based on his arguments above.
B. Reasonably Raised Hand Claim
Next, Mr. Sheppard presents several underdeveloped arguments regarding a reasonably
raised theory related to his unspecified hand disability claim.
First, he references March and June 2014 notations of hand pain and weakness and then
contends that the "Board acknowledged this newly submitted evidence as constituting evidence of
secondary service connection, referring to 'a March 2014 VA examination where right-hand pain
and weakness were attributed to the right wrist disability.'" Appellant's Br. at 12 (citing R. at 7).
But, he asserts that "the Board also failed to address whether this newly submitted evidence,
combined with VA's duty to assist the veteran, and considering other evidence of record, raised a
reasonable possibility of substantiating the claim, which would require a reopening of the claim."
Id.; see Mot. for Panel Review at 7 (stating that the March 2014 VA examination raised a theory
of secondary entitlement and is new and material evidence on the issue).
The Secretary argues that the veteran's argument is unclear, that he is already compensated
for painful motion associated with his service-connected wrist condition, and that his current
appeal is for an unspecified right-hand disability not related to the service-connected wrist
condition. Secretary's Br. at 14-15. Mr. Sheppard does not respond to these issues in his reply brief.
See Appellant's Reply Br. at 1-4. Without further development of his argument or an explanation
from Mr. Sheppard, which his motion for panel review does not provide, the Court cannot identify
any error related to this assertion; particularly where, following the March 2014 VA examination,
the April 2014 RO decision increased his rating for cyst removal residuals based on pa inful motion
of the wrist. See R. at 3106-07 (RO citing the March 2014 examination); see also Locklear v.
Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped
arguments).
Second, Mr. Sheppard summarily contends that the March 2014 VA examiner "alluded
that the [a]ppellant may now have carpal tunnel syndrome, but the examiner failed to opine as to
12
whether or not this could be related to his wrist problems, and the Board failed to consider or
properly develop the claim." Appellant's Br. at 12. Like the Secretary, Secretary's Br. at 15-16, the
Court is unsure as to what the veteran is trying to argue here, see also Appellant's Reply Br. at 1-
4 (not addressing this issue); and, therefore, we will not entertain this contention, see Locklear, 20
Vet.App. at 416. Even so, we note that, after conducting an in-person examination and considering
the veteran's statement about pain and a prior carpal tunnel diagnosis and noting his splint, the
March 2014 examiner diagnosed limited wrist motion, R. at 3556, and, as stated, the RO in creased
his rating for cyst removal residuals based on this painful motion, R. at 3106-07. In his motion for
panel review, Mr. Sheppard summarily states that he had a carpal tunnel diagnosis and a present
disability would be new and material evidence that the Board did not properly consider. Mot. for
Panel Review at 6. This argument is still underdeveloped, see Locklear, 20 Vet.App. at 416, and,
at any rate, should have been elaborated on in his briefs.
Third, Mr. Sheppard notes that, in a September 2015 statement, he reported that he gets
sharp pains in his hands when he uses his walker or crutches, and that he uses his walker and
crutches at times due to his service-connected bilateral foot condition. Appellant's Br. at 12-13
(citing R. at 2564). The medical record he cites documents assistive device use due to several
disabilities related to his back, knee, and foot conditions. R. at 2564; see R. at 2993-94 (the veteran
appears to be service connected for residuals of frostbite in the right and left feet, but not for a
back or knee condition). He then summarily states that the Board failed to consider this as a
secondary condition and argues that remand is required for correction. Appellant's Br. at 13; see
also Appellant's Reply Br. at 1-4 (not addressing this issue).
The Court agrees with the Secretary that his argument is underdeveloped, Secretary's Br.
at 16-17, and thus we will also not entertain it, see Locklear, 20 Vet.App. at 416. But we note that
the September 2015 statement regarding hand pain while using assistive devices appears
cumulative of his October 2007 statement that his hand burned and pain shot into his arm while he
was on crutches, see R. at 3897, and he fails to explain how a seemingly cumulative statement
warrants reopening of his claim,5 see R. at 3817-19 (final prior March 2008 RO decision denying
service connection for an unspecified hand disability).
5 A claimant may overcome a decision's finality by requesting reopening based on new and material evidence
See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc). For a legacy claim such as we have here, new
evidence is evidence not previously part of the record before agency adjudicators. 38 C.F.R. § 3.156(a) (2020). New
13
Because Mr. Sheppard's arguments about a reasonably raised theory related to his
unspecified hand disability claim are underdeveloped and he has thus not met his burden of proving
prejudice, see Sanders, 556 U.S. at 409-10; Locklear, 20 Vet.App. at 416, we will not, as he
requests, reverse the part of the Board decision declining to reopen this claim. We also will not
address any arguments related to Saunders v. Wilkie, 866 F.2d 1356 (Fed. Cir. 2018), that Mr.
Sheppard referenced in his motion for panel review because he did not raise any such arguments
in his briefs.
C. Reasonably Raised Mental Disease Claim
Finally, Mr. Sheppard argues that the Board failed to address the theory that his service-
connected conditions caused, or at least contributed to, his mental disability. Appellant's Br. at 13-
16 (noting that he had conveyed many times that pain from his service-connected frostbite residual
foot conditions and right hand cyst removal residuals caused or exacerbated his depression).
The Secretary contends that Mr. Sheppard has several non-service-connected conditions
that cause pain. Secretary's Br. at 18 (noting that he has chronic pain syndrome and neck, back,
and knee pain). The Secretary also asserts that the veteran does not explain how the evidence he
references differs from the evidence of record at the time of VA's prior denial. Id. at 19. Mr.
Sheppard responds that, in an April 2014 statement, he specified that his service-connected feet
and cyst removal residuals were factors contributing to his mental disability. Appellant's Reply Br.
at 3-4.
In August 2007, Mr. Sheppard stated that he experienced stress and depression after
developing frostbite during basic training and because of his in-service hand surgery. R. at 3911
(noting pain and weakness at the time of the surgery). In March 2008, the RO denied service
connection for a mental disease, R. at 3817-19, and, because the veteran did not appeal this
decision, it became final. Mr. Sheppard fails to explain how his April 2014 statement—that his
service-connected frostbite and cyst removal residuals caused or exacerbated his depression—is
not cumulative of the August 2007 statement, so that his mental disease claim should be reopened.
See § 3.156(a); see also Locklear, 20 Vet.App. at 416. We find his argument underdeveloped and
unpersuasive. See R. at 8 (the Board noted that, at the time of the March 2008 decision, there was
evidence of the veteran reporting stressful in-service incidents such as having frostbite during basic
and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final
denial. Id.
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training and that, in statements since the last final decision, he repeated similar statements).
Accordingly, we will not, as he requests, reverse the part of the Board decision declining to reopen
this claim.
III. CONCLUSION
On consideration of the above, the May 28, 2019, Board decision denying reopening of
claims for service connection for an unspecified right-hand disability (other than the service-
connected residuals of removal of a ganglion cyst in the right hand) and for a mental disease is
AFFIRMED.
BARTLEY, Chief Judge, dissenting: I disagree with my colleagues as to the scope of
38 C.F.R. § 20.101(d), and with their determination that it does not apply in Mr. Sheppard's case.
Section 20.101(d) is a VA-created rule that affords veterans the right to notice, a hearing, and the
opportunity to submit evidence where the Board raises a potential jurisdictional defect, and the
Board was bound to apply it here. Thus, I respectfully dissent.
Like the majority, I begin with the plain language of the regulation. The 2018 version of
38 C.F.R. § 20.101(d) indicated that it applied where the Board addresses "questions pertaining to
its jurisdictional authority to review a particular case, including, but not limited to, determining
whether [NODs] and Substantive Appeals are adequate and timely, at any stage in a proceeding
before it, regardless of whether the agency of original jurisdiction addressed such question(s)." 38
C.F.R. § 20.101(d) (2018). For legacy appeals like Mr. Sheppard's, the updated regulation,
§ 20.104 (d)(1), follows the same rule. Both versions of the regulation stipulate that the special
regulatory safeguards are "not limited to" situations involving the timeliness and adequacy of
appeal documents. Thus, I would effectuate the plain language of the regulation and ho ld that
former § 20.101(d) and current § 20.104(d)(1), which provide a special process to prevent an
appellant being surprised by a Board finding of no jurisdiction, apply to cases where a Board
determination as to new and material evidence reveals a potential jurisdictional defect. See Kisor
v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (holding that, if a regulation is unambiguous, "[t]he
regulation then just means what it means—and the court must give it effect").
Aside from the plain language of the regulation, caselaw supports the conclusion that the
regulation applies here. Both the Federal Circuit and this Court have held numerous times that
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whether there is new and material evidence to reopen a finally denied clam is a jurisdictional
question that the Board must address prior to addressing merits issues. Prillaman v. Principi, 346
F.3d 1362, 1367 (Fed. Cir. 2003); Jackson v. Principi, 265 F.3d. 1366, 1369 (Fed. Cir. 2001);
Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Woehlaert v. Nicholson, 21 Vet.App. 456,
460 (2007); Hickson v. West, 11 Vet.App. 374, 377 (1998); Butler v. Brown, 9 Vet.App. 167, 171
(1996).
The majority relies in part on the rulemaking history of § 20.101 to find that it applies to
some jurisdictional questions, mainly questions related to appeal documents, but not to the
jurisdictional question of whether there is new and material evidence to reopen a final decision.
They find it telling that VA described the appeal process and appeal documents when it proposed
adding § 20.101(d). However, in that same rulemaking document and immediately after discussing
appeal documents, VA states:
Furthermore, in a case discussing the Board's jurisdiction in another context, the
United States Court of Appeals for the Federal Circuit stated tha t "it is well-
established judicial doctrine that any statutory tribunal must ensure that it has
jurisdiction over each case before adjudicating the merits, that a potential
jurisdictional defect may be raised by the court or tribunal sua sponte or by any
party, at any stage in the proceedings, and, once apparent, must be adjudicated."
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (citations omitted, emphasis
in original).
66 Fed. Reg. 17,840 (April 4, 2001). The rulemaking for § 20.101(d) cites to Barnett, the case that
held that reopening assessments as to new and material evidence are Board jurisdictional
determinations; references that case as "a case discussing the Board's jurisdiction"; and does not
stipulate in either the Federal Register discussion or the plain language of the regulation that the
jurisdictional reopening context is excluded from the special procedures outlined in § 20.101(d).
Although the majority suggests that the proposed rule cited Barnett only to emphasize that a
tribunal must ensure that it has jurisdiction over a matter before deciding the merits and not to
include new and material evidence determinations in § 20.101(d), there is nothing in the proposed
rule that supports that conclusion. Rather, the proposed rule explains that a 1999 General Counsel
opinion demonstrates the need for procedural safeguards when the Board dismisses an appeal due
to lack of jurisdiction and then references Barnett as "another context" when the Board must ensure
that it has jurisdiction over a case before adjudicating the merits. These factors indicate that
§ 20.101(d) procedures apply when the Board encounters a potential jurisdictional defect while
assessing whether there is new and material evidence to reopen.
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The majority distinguishes between new and material evidence determinations and other
jurisdictional matters by asserting that claimants may be surprised when the Board sua sponte
raises an issue with appeal documents but should not be surprised when the Board independently
considers whether there is sufficient new and material evidence to reopen a claim because it is
required to do so. But the Board is likewise required to evaluate the adequacy and timeliness of
appeal documents to ensure its own jurisdiction before deciding an appeal, and as with an RO
determination that a claimant has submitted new and material evidence sufficient to reopen a claim,
the RO's processing and certification of an appeal conveys to the claimant that VA had previously
perceived no jurisdictional defect with those appeal documents. An adverse Board determination
on either matter—that new and material evidence had not, in fact, been submitted or that appeal
documents were deficient or untimely—causes the same unfair surprise because it constitutes a
change in VA position on a previously established jurisdictional question. This is precisely the
type of unfair surprise that § 20.101(d) was designed to protect against, and the fact that the Board
is required to ensure that it has jurisdiction over an appeal before addressing the merits offers no
distinction between those two jurisdictional questions.
Additionally, although the majority deduces that the Board's practice of denying rather than
dismissing a claim when it does not find sufficient new and material evidence is proof that
questions of new and material evidence should be treated differently than questions as to the
adequacy and timeliness of appeal documents, the Board's current practice is meaningless in
interpreting the scope of § 20.101(d) if dismissing is the proper course of action. The Court in
Woehlaert couldn't have been more clear: "whether new and material evidence has been
presented[] is a jurisdictional issue for the Board" and "an unfavorable answer to this question
requires a summary dismissal of the claim" without consideration of the merits. 21 Vet.App. at
460. The proper inference to draw from the Board's current practice of denying, rather than
dismissing, appeals when it concludes that reopening is not warranted is not that new and material
evidence determinations are not jurisdictional; it is that the Board's current practice is legally
incorrect. And to the extent that we have affirmed Board denials of reopening, we too have erred.
The majority's reliance on Jackson to reach a contrary conclusion is misplaced. As Mr.
Sheppard argues, and the majority notes, the Federal Circuit issued Jackson in September 2001.
VA adopted § 20.101(d) in October 2001. Chronology alone establishes that Jackson does not
answer whether § 20.101(d) applies in Mr. Sheppard's case. Moreover, Jackson addresses whether
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the Board violates a veteran's constitutional right to due process when it makes a new and material
evidence determination without prior notification. 265 F.3d at 1370-71. In Mr. Sheppard's case the
question is whether VA rule § 20.101(d) requires the Board to provide procedural safeguards in
excess of those constitutional minimums, and Jackson simply does not address that issue.
The majority reasons that, because it believes the evidence required for reopening overlaps
with the evidence required to prove the merits of Mr. Sheppard's claim, any error in not applying
§ 20.101(d) was harmless. I cannot agree for two reasons. First, the reopening statute and
regulation, 38 U.S.C. § 5108 and 38 C.F.R. § 3.156, create a "low threshold" for determining
whether new evidence creates a reasonable possibility of substantiating a claim. Shade v. Shinseki,
24 Vet.App. 110, 117 (2010). Reopening is required if "such evidence, combined with VA
assistance and considering the other evidence of record, would raise a reasonable possibility of
substantiating the claim." Id. That lower threshold distinguishes the evidence involved in
reopening a claim from that used to prove a claim on the merits, and the evidence needed to trigger
VA's duty to assist for reopening purposes is generally much less strong than that needed to
establish the corresponding element of service connection on the merits. Unlike th e majority, I am
not persuaded that Mr. Sheppard's choice not to present evidence aimed at proving a claim on the
merits renders harmless VA's failure to afford him the opportunity to submit new and material
evidence at that lower threshold. Holding that error nonprejudicial imposes the higher standard of
evidence as to service connection, in this case the link between service and the current disability,
on the evidence involved in determining whether there is a reasonable possibility of substantiating
a claim. In my view, subjecting a claimant to a higher legal standard than that required by law is
not a harmless error. See Wise v. Shinseki, 26 Vet.App. 517, 532 (2014) (holding that the Board
must apply the correct standard of proof and errs when it requires a greater level of proof than that
required by law); see also Shade, 24 Vet.App. at 114.
Second, Mr. Sheppard argued that the Board's error in not applying § 20.101(d) was
prejudicial because he could have attended a hearing and presented new and material evidence had
he known reopening was still at issue. The majority finds this argument unpersuasive because Mr.
Sheppard was afforded the opportunity to provide linkage evidence during a hearing but ultimately
withdrew that request because he felt that a hearing was unnecessary to decide his case. However,
Mr. Sheppard's decision to withdraw his hearing request was made while he was under the
impression that VA had reopened his claim and that the hearing would address the merits. His
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withdrawal decision was not made in consideration of the evidence necessary to reopen the claim.
In Evans v. Shinseki, we held that VA's own regulations and the veteran-friendly, non-adversarial
appeals process don't permit the Board, ab initio, to dismiss certain issues within an appeal without
first affording the veteran the full benefit of procedures mand ated by its own regulations.
25 Vet.App. 7, 14 (2011). Evans determined that the Board's failure to comply with the procedural
requirements of § 20.101(d) is prejudicial when it deprives an appellant of a meaningful
opportunity to present argument and evidence on the issues on appeal before the Board issues its
decision. Id. at 15. That holding should apply with equal force here.
In short, I conclude that § 20.101(d) applies to the Board's jurisdictional determination of
whether new and material evidence has been presented and that the Board's failure in this case to
afford Mr. Sheppard the benefit of that regulation's procedural protections was prejudicial. I
therefore dissent.
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