Delano v. McDonough

Case: 22-1694 Document: 24 Page: 1 Filed: 10/06/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH J. DELANO, JR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETER-
ANS AFFAIRS,
Respondent-Appellee
______________________
2022-1694
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-5431, Judge Amanda L. Mere-
dith, Judge Michael P. Allen, Judge Scott Laurer.
______________________
Decided: October 6, 2022
______________________
KENNETH J. DELANO, JR., Madison, AL, pro se.
DANIEL HOFFMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M. MCCAR-
THY.
______________________
Case: 22-1694 Document: 24 Page: 2 Filed: 10/06/2022
2 DELANO v. MCDONOUGH
Before DYK, TARANTO, and STARK, Circuit Judges.
PER CURIAM.
Kenneth J. Delano, Jr., appeals a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court). See Delano v. McDonough, No. 20-5431, 2021 WL
5578501 (Vet. App. Nov. 30, 2021). The Veterans Court
held that the Board did not err in failing to address the
disability rating for Mr. Delano’s back disability, because
Mr. Delano had not filed a Notice of Disagreement (NOD)
with the disability rating assigned by the Department of
Veterans Affairs (VA) regional office (RO) with respect to
the back disability. We dismiss.
BACKGROUND
Mr. Delano served on active duty in the U.S. Air Force
from January 1985 to October 2007. He applied for disa-
bility compensation for eye conditions and a back disabil-
ity. In July 2008, the RO awarded service connection for
several eye conditions, but denied service connection for a
back disability. Mr. Delano filed a Notice of Disagreement
(NOD) with respect to several issues, including the denial
of service connection for the back disability.
In December 2010, the RO issued a Statement of the
Case denying service connection for the back condition. In
January 2011, Mr. Delano appealed the denial of service
connection and rating for the back disability to the Board.
In November 2016, the Board awarded disability com-
pensation for a low back disability and remanded to the RO
to decide the disability rating. In December 2016, the RO
implemented the Board’s decision concerning the back con-
dition, rating it as 20 percent disabling. While Mr. Delano
submitted a January 2017 letter to the Board in which he
contends that he disagreed with the RO’s disability rating
for his back condition, he did not file an NOD with the RO
with respect to that decision.
Case: 22-1694 Document: 24 Page: 3 Filed: 10/06/2022
DELANO v. MCDONOUGH 3
In October 2018, the RO assigned a 30 percent disabil-
ity rating for the bilateral eye disability for which
Mr. Delano had previously been awarded service connec-
tion. Mr. Delano filed an NOD with respect to that decision
and appealed to the Board.
On November 15, 2019, addressing that appeal, the
Board denied a rating in excess of 30 percent for the bilat-
eral eye disability. The Board did not address the 20 per-
cent rating assigned by the RO in 2016 for the back
disability, a rating Mr. Delano had not challenged before
the Board. Mr. Delano appealed to the Veterans Court.
On November 30, 2021, with respect to the bilateral eye
disability, the Veterans Court issued a decision vacating
the Board’s November 2019 decision and remanding for
further proceedings, holding that the Board “provided in-
adequate reasons or bases for its decision.” S.A. 6. As for
the rating for the back disability, the Veterans Court held
that the Board lacked jurisdiction to review RO’s December
2016 rating decision, because Mr. Delano had not filed a
timely NOD challenging that issue.
This appeal followed.
DISCUSSION
“Appellate review [by the Veterans Court] will be initi-
ated by a notice of disagreement . . .” 38 U.S.C. § 7105(a)
(2016). 1 “If no notice of disagreement is filed in accordance
with this chapter within the prescribed period, the action
or determination shall become final and the claim will not
thereafter be reopened or allowed, except as may otherwise
be provided by regulations.” Id. § 7105(c). “Review in the
1 This section was amended in 2017. See Veterans
Appeals Improvement and Modernization Act of 2017, Pub.
L. No. 115-55, § 2(q)(1), 131 Stat. 1105, 1111–12.
Case: 22-1694 Document: 24 Page: 4 Filed: 10/06/2022
4 DELANO v. MCDONOUGH
[Veterans] Court shall be on the record of proceedings be-
fore the Secretary and the Board.” Id. § 7252(b).
As the Veterans Court observed, Mr. Delano “does not
contend or point to evidence reflecting that he filed an NOD
as to the December 2016 RO decision.” S.A. 8. Where a
claimant “has neither alleged nor shown that an NOD re-
lating to [an element of the claim] was filed before [a Board]
decision, the Board [does] not err by not addressing that
issue.” Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per
curiam order) (citations omitted), aff’d sub nom. Urban v.
Nicholson, 128 F. App’x 154 (Fed. Cir. 2005). Because Mr.
Delano never appealed the 2016 back rating decision to the
Board by filing an NOD as to that decision, the Board did
not err by not addressing that issue.
Mr. Delano points to a January 2017 letter he submit-
ted to the Board, which he contends qualified as an NOD
as to the back rating because “[a] letter sent within one
month in direct response to, and disagreeing with, the
Agency’s decision constitutes an NOD.” Opening Br. 4. Mr.
Delano does not dispute the letter was not submitted to the
RO, so, as a matter of law, it cannot serve as an NOD. 38
U.S.C. § 7105(b)(1) (“Such notice [of disagreement], and ap-
peals, must be in writing and be filed with the activity [RO]
which entered the determination with which disagreement
is expressed . . . .”). So, too, given the RO first assigned any
disability rating for Mr. Delano’s back condition in 2016,
the 2010 NOD cannot, as a matter of law, provide notice to
the Board that Mr. Delano disagreed with the RO’s 2016
back rating.
We have considered Mr. Delano’s remaining argu-
ments and find them unpersuasive.
Because Mr. Delano raises no colorable claim of legal
error, we dismiss.
DISMISSED
Case: 22-1694 Document: 24 Page: 5 Filed: 10/06/2022
DELANO v. MCDONOUGH 5
COSTS
No costs.