Case: 23-2214 Document: 49 Page: 1 Filed: 06/27/2025
United States Court of Appeals
for the Federal Circuit
______________________
ANNETTE R. DEAL,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2214
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-6401, Judge Michael P. Allen.
______________________
Decided: June 27, 2025
______________________
KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by TANYA KOENIG, MARTIN F. HOCKEY, JR., PATRICIA
M. MCCARTHY, YAAKOV ROTH.
______________________
Before DYK, REYNA, and STARK, Circuit Judges.
Case: 23-2214 Document: 49 Page: 2 Filed: 06/27/2025
2 DEAL v. COLLINS
REYNA, Circuit Judge.
Annette R. Deal appeals a final decision of the United
States Court of Appeals for Veterans Claims denying her
an earlier effective date for her service-connected psychiatric disorder. We affirm.
BACKGROUND
Mrs. Deal served in the United States Navy from 1977
to 1981, and in the United States Army from 1983 to 1984.
J.A. 2. On October 18, 1991, Mrs. Deal filed a claim for
compensation for Cushing’s syndrome and a nervous condition (“1991 Claim”). J.A. 17. In a July 1992 rating decision, a regional office (“RO”) of the Department of Veterans
Affairs (“VA”) denied Mrs. Deal’s claim for lack of service
connection. J.A. 18. Within the appeal period for the
July 1992 rating decision, Mrs. Deal received treatment for
her disorder, which resulted in a 1993 medical record or
records being associated with Mrs. Deal’s claim file (“1993
Record”). J.A. 19; J.A. 116–17. The VA did not explicitly
address whether the 1993 Record met the requirements of
38 C.F.R. § 3.156(b) to be treated as having been filed in
connection with her 1991 Claim until almost thirty years
later, in a June 2021 Board of Veterans’ Appeals (“Board”)
decision.1 J.A. 116–17. Mrs. Deal did not appeal the
July 1992 rating decision. J.A. 108.
On March 10, 1995, Mrs. Deal filed another claim for
compensation for Cushing’s syndrome and psychiatric impairments (“1995 Claim”). J.A. 26–30. The RO eventually
granted Mrs. Deal’s 1995 Claim for service connection for
1 The government contends that in 1996, the VA implicitly determined that the 1993 Record did not meet the
requirements of § 3.156(b). Appellee Br. 21–23. We need
not reach this contention, nor Mrs. Deal’s argument that
the government’s contention is unreviewable, Appellant
Reply Br. 5 n.1, given our resolution of this appeal.
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DEAL v. COLLINS 3
Cushing’s syndrome with an effective date of March 10,
1995, but did not grant service connection for psychiatric
conditions. J.A. 35.
On August 1, 2003, Mrs. Deal filed a third claim for service-connected depression and anxiety secondary to her
Cushing’s syndrome (“2003 Claim”). J.A. 116. This claim
led to a March 2016 Board decision granting service connection for a condition it characterized as Mrs. Deal’s psychiatric disorder. J.A. 41. As a result of the Board’s
March 2016 decision, the RO assigned Mrs. Deal’s psychiatric disorder an effective date of August 1, 2003.
J.A. 62–63. The effect of the Board’s March 2016 decision
is central to Mrs. Deal’s argument on appeal.
Mrs. Deal appealed the RO’s effective date determination for her psychiatric disorder to the Board, arguing that
she was entitled to an effective date of October 1991, or, in
the alternative, March 10, 1995. J.A. 65–66; J.A. 74–79.
Mrs. Deal asserted that she was entitled to an earlier effective date because her 1991 and 1995 Claims remained
open at the time she was granted benefits in March of 2016.
J.A. 74–75. She argued that her claims remained open because the VA had failed to address whether certain new
evidence that she submitted within the relevant appeal period for her 1991 and 1995 Claims, including the 1993 Record, met the requirements of § 3.156(b). Id. On June 1,
2021, the Board granted Mrs. Deal’s request for an effective date of March 10, 1995, ruling that Mrs. Deal timely
presented new and material evidence in 1997 of a psychiatric disorder and the VA needed to treat this evidence as
having been filed in connection with her 1995 Claim under
§ 3.156(b). J.A. 117–18. The Board denied Mrs. Deal’s request for an effective date of October 1991, ruling that the
alleged new and material evidence relating to her 1991
Claim, i.e., the 1993 Record, was new evidence, but not material. J.A. 116–17. Accordingly, the Board ruled that
§ 3.156(b) did not apply to the 1993 Record and thus the
July 1992 rating decision was final. Id.
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4 DEAL v. COLLINS
Mrs. Deal appealed the Board’s June 1, 2021 decision
to the United States Court of Appeals for Veterans Claims
(“Veterans Court”). Mrs. Deal argued that the Board erred
in ruling that the 1993 Record was not material.
J.A. 159–66. In the alternative, Mrs. Deal argued that regardless of whether the 1993 Record was material, the VA
had not yet addressed the 1993 Record at the time of the
Board’s March 2016 decision granting her benefits.
J.A. 166–72. According to Mrs. Deal, under § 3.156(b),
her 1991 Claim remained open in March 2016, such that
the Board’s March 2016 decision adjudicated her 1991
Claim, not only her later claims. Id. On February 21,
2023, the Veterans Court affirmed the Board’s grant of the
March 10, 1995 effective date, finding that a plausible basis supported the Board’s ruling that the 1993 Record was
not material and thus the July 1992 rating decision was
final. J.A. 4–5. The Veterans Court rejected Mrs. Deal’s
alternative argument, stating that it was “perplexed” by
this argument, which it described as a “rather strange theory.” J.A. 5.
Mrs. Deal appeals the Veterans Court’s denial of her
alternative argument about the correct interpretation of
§ 3.156(b). We have jurisdiction under 38 U.S.C. § 7292.
STANDARD OF REVIEW
Our jurisdiction to review a decision of the Veterans
Court is limited. We review the validity of a Veterans
Court decision “on a rule of law or of any statute or regulation . . . or any interpretation thereof” that the Veterans
Court relied on in making its decision. 38 U.S.C. § 7292(a).
Additionally, this court may not, unless a constitutional
challenge is presented, “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.”
38 U.S.C.
§ 7292(d)(2).
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DEAL v. COLLINS 5
DISCUSSION
Mrs. Deal raises a legal challenge to the Veterans
Court’s interpretation of 38 C.F.R. § 3.156(b) and our decisions in Bond v. Shinseki,
659 F.3d 1362 (Fed. Cir. 2011),
and Beraud v. McDonald,
766 F.3d 1402 (Fed. Cir. 2014).2
We first review the legal authorities that Mrs. Deal relies
on.
In relevant part, § 3.156(b) states that “[n]ew and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in
connection with the claim which was pending at the beginning of the appeal period.” § 3.156(b). Our decisions in
Bond and Beraud explain that § 3.156(b) requires the VA
to assess whether “any evidence submitted during the relevant period . . . constitutes new and material evidence relating to the old claim.” Bond, 659 F.3d at 1367; Beraud,
766 F.3d at 1405, 1407. Notably, in Beraud, we stated that
until the VA assesses such evidence, “the claim at issue remains open.” Beraud,
766 F.3d at 1407.
Mrs. Deal argues that the Board did not address
whether the 1993 Record was new and material evidence
in connection with her 1991 Claim until June 2021. Thus,
according to Mrs. Deal, under § 3.156(b) and our precedent,
her 1991 Claim remained open when the Board granted her
service connection in March 2016 for her psychiatric disorder. As such, she contends the Board’s March 2016 decision adjudicated her open 1991 Claim, not only her later
claims, and thus the VA should have considered whether
to use the date of application of her 1991 Claim, i.e., October 18, 1991, as the effective date for her service-connected
psychiatric disorder.
2 Mrs. Deal does not challenge the Veterans Court’s
ruling on the materiality of the 1993 Record. Appellant
Reply Br. 1–4.
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6 DEAL v. COLLINS
The government responds that the VA’s delay in addressing whether evidence submitted during the appeal period of a prior claim is new and material under § 3.156(b)
does not automatically entitle the claimant to the benefit
of an earlier date of application for purposes of determining
an effective date. Appellee Br. 19. Instead, the claimant
may only be entitled to an earlier effective date if, on remand, the VA determines that the proffered evidence is
new and material and reconsiders the prior claim accordingly. Id. at 18–20. We agree with the government.
We must look to the language of the pertinent regulation, which states: “New and material evidence received
prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim
which was pending at the beginning of the appeal period.”
§ 3.156(b). On its face, the regulation does not speak to the
consequences of the VA’s failure to address whether evidence is new and material prior to a grant of benefits. The
regulation does, however, state that the precondition for
evidence to be considered “as having been filed in connection with the [prior] claim” is that the evidence must be
“[n]ew and material[.]” Id.
We turn next to our decisions in Bond and Beraud. In
Bond, this court held that § 3.156(b) requires the VA to “assess any evidence submitted during the relevant period
and make a determination as to whether it constitutes new
and material evidence relating to the old claim.” Bond, 659
F.3d at 1367. There, the VA had not yet met this obligation, so we remanded the matter “for a determination as to
whether [the claimant’s submission] contain[ed] new and
material evidence relating to his [prior] claim.”
Id. at
1368–69 (citation omitted). Similarly, in Beraud, we “reaffirm[ed] that, under § 3.156(b), the VA must provide a determination that is directly responsive to the new
submission and that, until it does so, the claim at issue remains open.” Beraud,
766 F.3d at 1407. Again, the VA had
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DEAL v. COLLINS 7
not yet met its obligation, so we remanded the matter.
Id.
at 1403, 1407.
Neither Bond nor Beraud support Mrs. Deal’s position.
Bond and Beraud recognize that § 3.156(b) requires the VA
to provide a responsive determination to evidence submitted during the relevant period. Bond, 659 F.3d at 1367–68;
Beraud, 766 F.3d at 1407. Neither case provides that if the
VA grants benefits for a subsequent claim before it fulfills
its obligation to provide a responsive determination for a
prior related claim, then the VA must consider whether to
apply the date of application of the prior related claim
when determining the effective date of the intervening
grant of benefits. Instead, both Bond and Beraud recognize
that if the VA has not yet met its obligation to provide a
responsive determination, the proper course of action is for
the reviewing tribunal to remand for the VA to make such
a determination. Bond, 659 F.3d at 1368–69; Beraud,
766
F.3d at 1407. Put differently, a claim awaiting a responsive determination under § 3.156(b) remains “open” for the
limited purpose of requiring the VA to make the responsive
determination.
Once the VA makes a responsive determination, one of
two things may happen. If the VA decides that a submission presents new and material evidence, then § 3.156(b)
requires the VA to treat the new evidence “as having been
filed in connection with the [prior] claim[.]” § 3.156(b). If
the VA decides that the submission at issue does not meet
the new and material evidence requirements of § 3.156(b),
then the evidence should not be treated “as having been
filed in connection with the [prior] claim[.]”3 Id. As such,
while the claimant in the first scenario may be entitled to
3 This is precisely what occurred in the present case.
The Veterans Court affirmed the Board’s ruling on remand
that the 1993 Record was not material, J.A. 4–5, a ruling
that Mrs. Deal does not challenge before this court.
Case: 23-2214 Document: 49 Page: 8 Filed: 06/27/2025
8 DEAL v. COLLINS
an effective date corresponding to the date of application of
its prior claim, the claimant in the second scenario would
not be. This is true regardless of whether the VA fails to
make its responsive determination prior to granting benefits. To hold otherwise would render meaningless
§ 3.156(b)’s requirement that evidence must be deemed
new and material for the regulation to be applicable.
CONCLUSION
We have considered Mrs. Deal’s remaining arguments
and find them unpersuasive. For the reasons stated, we
affirm.
AFFIRMED
COSTS
No costs.
