Case: 22-1447 Document: 38 Page: 1 Filed: 04/26/2023
United States Court of Appeals
for the Federal Circuit
______________________
WILFRED D. BEAN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1447
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4116, Judge Coral Wong Pietsch.
______________________
Decided: April 26, 2023
______________________
JENNIFER ANN ZAJAC, Paralyzed Veterans of America,
Washington, DC, argued for claimant-appellant. Also represented by LINDA E. BLAUHUT.
ERIC JOHN SINGLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI,
PATRICIA M. MCCARTHY; Y. KEN LEE, DEREK SCADDEN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Case: 22-1447 Document: 38 Page: 2 Filed: 04/26/2023
2 BEAN v. MCDONOUGH
______________________
Before NEWMAN, SCHALL, and TARANTO, Circuit Judges.
SCHALL, Circuit Judge.
Wilfred D. Bean appeals the December 30, 2021 decision of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) in Bean v. McDonough, No. 19-
4116, 2021 WL 6143707 (Vet. App. Dec. 30, 2021). In that
single-judge memorandum decision, the Veterans Court
dismissed Mr. Bean’s appeal of the May 10, 2019 decision
of the Board of Veterans’ Appeals (“Board”) for lack of jurisdiction. In its May 2019 decision, the Board dismissed
Mr. Bean’s appeal of two rulings of the Oakland, California
Regional Office (“RO”) of the Department of Veterans Affairs (“VA”). J.A. 19–23. In the first ruling, in a decision
dated September 10, 2013, the RO denied Mr. Bean’s claim
for an effective date earlier than August 14, 2006, for the
award of disability benefits for service-connected post-traumatic stress disorder (“PTSD”). J.A. 245–50. In the second
ruling, in a Statement of the Case (“SOC”) dated September 21, 2015, the RO rejected Mr. Bean’s contention that he
had pending before the VA an unadjudicated claim for benefits based upon service-connected generalized anxiety disorder or major depressive disorder. J.A. 51–73. For the
reasons set forth below, we hold that the Veterans Court
erred in ruling that it lacked jurisdiction. We therefore reverse the court’s decision and remand the case to the court
for further proceedings.
BACKGROUND
I
Mr. Bean served on active duty in the U.S. Army from
November 1966 to November 1969. Bean, 2021 WL
6143707, at *1. Following his release from service, on February 24, 1997, he presented to the RO a claim for disability compensation based upon PTSD, chloracne, and soft
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BEAN v. MCDONOUGH 3
tissue sarcoma.
Id. 1 On the basis of a June 26, 1997 VA
examination, Mr. Bean was diagnosed with major depression and generalized anxiety disorder, but not PTSD. Id.;
J.A. 748. In a rating decision dated July 11, 1997, the RO
denied entitlement to service connection for PTSD. Bean,
2021 WL 6143707, at *1, *3. The rating decision noted that
Mr. Bean had been diagnosed with major depression and
generalized anxiety disorder. However, it did not otherwise address those conditions.
Id. at *1–2; J.A. 741. Mr.
Bean did not appeal the July 1997 rating decision. Bean,
2021 WL 6143707, at *1.
On August 14, 2006, the RO received an informal claim
from Mr. Bean. The claim sought service connection for
major depression, generalized anxiety disorder, and PTSD.
Id. at *2. In response to Mr. Bean’s informal claim, on June
12, 2007, the RO notified Mr. Bean that it was “working on
[his] application for service-connected compensation” for
major depression and generalized anxiety disorder as well
as his “claim to reopen for” his PTSD-related claim. J.A.
626. Subsequently, Mr. Bean underwent another VA examination on July 11, 2007, as a result of which he was
diagnosed with PTSD and major depressive disorder.
Bean, 2021 WL 6143707, at *2; J.A. 563. In an October 4,
2007 rating decision, the RO found service connection for
PTSD, deemed the PTSD 30% disabling, and assigned the
rating an effective date of August 14, 2006. Bean,
2021 WL
6143707, at *2; J.A. 512–15.
On November 29, 2007, Mr. Bean filed a Notice of Disagreement (“NOD”), disagreeing with the disability rating
and effective date assignment and noting his intention to
submit a supplemental letter further explaining his disagreement with the decision. J.A. 502. In the promised
1 Until his appeal to the Veterans Court that resulted in the court’s decision that is now before us Mr. Bean
at all times acted pro se.
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4 BEAN v. MCDONOUGH
supplemental statement, dated December 8, 2007, Mr.
Bean informed the RO that he disagreed with both the rating of 30% for PTSD and the August 14, 2006 effective date
assigned for the rating. He also stated: “It is my contention
that my claim for service connection for [PTSD] constituted
a claim for an acquired psychiatric disorder to include major depression and generalized anxiety disorder as documented in the evidentiary records to include . . . the VA
examination of June 26, 1997.” JA. 487–88. Mr. Bean concluded that the VA’s failure to consider service connection
for these conditions meant that he had an “unadjudicated
(pending) claim in accordance with 38 CFR 3.160(c).” J.A.
488. 2
In an SOC dated June 11, 2008, the RO confirmed the
30% rating for PTSD and denied an effective date earlier
than August 14, 2006, for PTSD. Bean, 2021 WL 6143707,
at *2; J.A. 480. Addressing Mr. Bean’s assertion of unadjudicated pending claims, the RO stated:
You contend that your claim for service connection
for [PTSD] constituted a claim for an acquired psychiatric disorder to include major depressive disorder and generalized anxiety disorder. A review of
your claims folder indicates you specifically
claimed service connection for [PTSD]. There was
no indication that you were claiming service connection for any other disability. In addition, you[r]
examination report did not relate your major depressive disorder or generalized anxiety disorder to
any psychiatric disorder in service. . . . There is no
evidence of a claim for a psychiatric disorder which
was not adjudicated.
2 At the time, § 3.160(c) defined a “pending claim” as
“[a]n application, formal or informal, which has not been
finally adjudicated.” 38 C.F.R. § 3.160(c) (2006).
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BEAN v. MCDONOUGH 5
J.A. 482.
In a VA Form 9, dated August 6, 2008, Mr. Bean continued to assert to the RO that he was entitled to a rating
greater than 30% for his PTSD and that his 1997 PTSD
claim constituted a claim for additional psychiatric conditions. Bean, 2021 WL 6143707, at *2; J.A. 455–57. In that
regard, Mr. Bean added that there remained pending “an
unadjudicated claim in accordance with 38 CFR 3.160(c).”
J.A. 457.
In a Supplemental Statement of the Case (“SSOC”)
dated May 20, 2010, the RO increased Mr. Bean’s rating
for PTSD to 70%, effective April 30, 2010, based upon a VA
examination on that date. Bean, 2021 WL 6143707, at *2.
In the SSOC, the RO continued the denial of an effective
date earlier than August 14, 2006, for the award of service
connection for PTSD.
Id. In addition, the RO rejected
again Mr. Bean’s contention that there was an unadjudicated pending claim for an acquired psychiatric disorder.
J.A. 416 (“As noted in our [SOC] dated [June] 11, 2008,
there is no evidence of a claim for a psychiatric disorder
which was not adjudicated.”). Dissatisfied with this decision, Mr. Bean appealed to the Board. J.A. 390–91.
On May 31, 2012, the Board issued its decision in response to Mr. Bean’s appeal. The Board determined that
Mr. Bean was entitled to a 70% rating for service-connected
PTSD, with an effective date of August 14, 2006, but not
earlier. Bean, 2021 WL 6143707, at *2; J.A. 338–39. The
Board acknowledged Mr. Bean’s assertion that, because he
was diagnosed with major depression and generalized anxiety disorder by the VA in June 1997, the RO, in July 1997,
should have considered his claim for PTSD as a claim for
an acquired psychiatric disability. In that regard, the
Board stated:
If the veteran believes that the RO made a mistake
in its decision, he can file a claim alleging clear and
unmistakable error (CUE) in the July 1997 RO
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6 BEAN v. MCDONOUGH
decision (the standard is very high). However, that
issue has not been properly developed and is not
before the Board at this time.
J.A. 335. The Board thus did not rule on whether the RO
had before it in 1997, but failed to adjudicate, claims for
benefits based on major depression or generalized anxiety
disorder; the Board said only that the question was not at
that time before it and should be presented to the RO.
Mr. Bean did not appeal to the Veterans Court. Instead, he followed the Board’s suggestion. Thus, in a VA
Form 21-4138 dated July 26, 2012, that he submitted to the
RO, he asked, in accordance with the Board’s May 2012 decision, that “the VA reconsider the issue of the effective
date” for his service-connected PTSD. J.A. 310. In addition, he repeated his contention that there was pending an
unadjudicated claim in accordance with 38 C.F.R.
§ 3.160(c), while also citing
38 C.F.R. § 3.105(a), the VA
regulation that governs CUE claims.
Id.
Subsequently, after the RO denied an earlier effective
date for service connection for PTSD on September 10,
2013, J.A. 251, and Mr. Bean submitted an NOD on September 30, 2013, J.A. 237–38, the RO issued an SOC on
September 21, 2015. J.A. 53. In relevant part, the SOC
stated:
Your prior claims for service connection for acquired psychiatric disorder to include generalized
anxiety disorder, major depression and/or [PTSD]
became final on July 18, 1998 and October 7, 1999.
There is no evidence of a clear and unmistakable
error (38 CFR 3.105(a)) and no evidence that a formal or informal claim was pending which has not
been finally adjudicated (38 CFR 3.160(c)). Prior
decisions were found to be correct and finally adjudicated at the time you re-opened your claim on August 14, 2006.
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BEAN v. MCDONOUGH 7
J.A. 73. Mr. Bean then appealed to the Board both the issue of an earlier effective date for his PTSD and the issue
of alleged unadjudicated claims. J.A. 49.
II
On May 10, 2019, the Board issued its decision dismissing Mr. Bean’s appeal. J.A. 19. In its decision, the Board
stated that, when Mr. Bean applied to the RO in July of
2012, he asked that the RO reconsider the issue of an effective date assigned for the award of service connection for
PTSD. J.A. 20. The Board also stated that Mr. Bean argued before the RO that, in its May 2012 decision, “the
Board should have considered whether he should have
been service-connected for depression and anxiety from
1997 since his original claim had been for an ‘acquired psychiatric disorder’ and not just PTSD therefore it remained
an unadjudicated claim.” J.A. 20–21; see J.A. 310. The
Board then noted that Mr. Bean had not appealed its May
2012 decision to the Veterans Court. J.A. 21. The Board
also noted that, when the Board issued that decision, Mr.
Bean was informed that, any time after issuance of the decision, he could file with the Board a motion for reconsideration, a motion to vacate, or a motion for revision based on
CUE. Id. The Board stated:
[T]he issue on appeal has already been addressed
by the Board in a final, unappealed decision, and
cannot be revisited in the absence of a motion for
reconsideration or a motion of CUE in the May
2012 Board decision. The Veteran in this case has
not, at any point, argued that his request for an
earlier effective date should be construed as a motion to revise the May 2012 Board decision based
on clear and unmistakable error, nor has the
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8 BEAN v. MCDONOUGH
Veteran filed the necessary motion to have that
prior decision revised or reconsidered. 3
J.A. 21–22. On this basis, the Board dismissed Mr. Bean’s
appeal, stating: “[T]he May 2012 Board decision is final;
the appeal for an earlier effective date for service connection for PTSD is dismissed.” J.A. 23. Mr. Bean timely appealed to the Veterans Court, and at that point he obtained
counsel.
III
On March 2, 2020, after his appeal had been filed, Mr.
Bean sought from the Veterans Court extraordinary relief
in the form of a writ of mandamus. Mr. Bean asked the
court to order the VA to issue a decision on what he contended were his unadjudicated claims for service connection for anxiety and depression that had been pending
since 1997. Bean, 2021 WL 6143707, at *3; J.A. 1025, 1033.
Responding to Mr. Bean’s petition on April 9, 2020, the
VA informed the Veterans Court that, on April 4, 2020, the
RO had issued a decision determining that the rating decision dated July 11, 1997, did not contain CUE and that the
decision did not leave unadjudicated any claims of service
connection for generalized anxiety disorder and major depression because neither of those conditions were ever
claimed. Bean, 2021 WL 6143707, at *3; J.A. 1036, 1041.
In a single-judge memorandum decision issued on
April 27, 2020, the Veterans Court denied Mr. Bean’s petition. J.A. 1078. The court stated that Mr. Bean had failed
to carry his burden of demonstrating that he lacked alternative means of relief. Specifically, the court said that Mr.
3 Thus, the Board read Mr. Bean’s July 2012 application to the RO as a request for reconsideration of the
Board’s May 2012 decision, rather than a request for the
RO to correct its own earlier error.
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BEAN v. MCDONOUGH 9
Bean had failed to explain why his appeal of the May 2019
Board decision or initiating review of the April 2020 rating
decision were not adequate remedies. J.A. 1077.
Rather than appealing the April 2020 RO decision, Mr.
Bean continued with the prosecution of his pending appeal
in the Veterans Court. In his appeal, Mr. Bean did not
challenge the Board’s May 10, 2019 decision insofar as it
dismissed his appeal to the extent it sought an earlier effective date for the award of service connection for PTSD.
J.A. 909–10. What Mr. Bean did challenge was the Board’s
failure to address his contention that he had unadjudicated
pending claims for service-connected generalized anxiety
disorder and major depressive disorder. J.A. 912–17.
In a single-judge memorandum decision issued on
April 28, 2021, the Veterans Court considered Mr. Bean’s
argument that he had presented to the Board the contention that he had unadjudicated pending claims for service
connection for generalized anxiety disorder and major depressive disorder. After doing so, the court concluded:
[A]ppellant . . . has continually asked VA to determine whether he has an outstanding claim for generalized anxiety disorder and major depression,
and VA has done little to address that argument.
Thus, the Court finds that the Board erred when it
failed to address his contention that he has unadjudicated pending claims for service connection for
generalized anxiety and major depressive disorder
dating back to 1997. These issues were raised by
the record and should have been addressed by the
Board.
Bean v. McDonough, No. 19-4116, 2021 WL 1647629, at *6
(Vet. App. Apr. 28, 2021). The Veterans Court concluded
its decision by dismissing what it described as “the appeal
for an effective date earlier than August 14, 2006, for the
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10 BEAN v. MCDONOUGH
grant of service connection for PTSD.” Id. at *7. 4 At the
same time, however, the court remanded to the Board “for
further proceedings consistent with this decision” the issue
of whether Mr. Bean had unadjudicated pending claims.
Id.
The court’s statement just quoted above, as well as its
remand to the Board, reflect the court’s finding that, when
Mr. Bean submitted his Form 21-1438 to the RO in July of
2012, he was not seeking reconsideration of the May 2012
Board decision. Rather, he was presenting to the RO his
contention that there were unadjudicated claims for generalized anxiety disorder and major depressive disorder, allegedly pending since 1997. The statement and remand
also reflect the court’s finding that those claims were before
the Board in 2019 and that the Board erred in failing to
consider them.
On May 13, 2021, the VA Secretary moved for reconsideration of the Veterans Court’s April 2021 decision. On
December 30, 2021, the court withdrew its April 2021 decision and issued the single-judge memorandum decision
now on appeal.
In its December 30, 2021 decision, the Veterans Court
concluded that it lacked jurisdiction over Mr. Bean’s appeal. Bean, 2021 WL 6143707, at *4. The court reached
that conclusion even though Mr. Bean contended before the
Board that he had unadjudicated pending claims for service-connected generalized anxiety and major depressive
disorder and that the Board erred when it failed to address
those claims. The Veterans Court reasoned, simply, that
the Board did not actually decide that issue in the decision
on appeal, but decided only the issue of whether Mr. Bean
4 As noted above, Mr. Bean did not raise the issue of
an earlier effective date for service connection for PTSD in
his appeal to the Veterans Court.
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BEAN v. MCDONOUGH 11
was entitled to an effective date earlier than August 14,
2006, for the grant of service connection for his PTSD and
that, for that reason, the court lacked jurisdiction over the
issue raised by Mr. Bean on appeal—“whether the Board
erred in failing to address whether he had unadjudicated,
pending claims for generalized anxiety and major depressive disorder dating back to 1997.” Id.; see also id. (“[T]he
only issue addressed in the May 2019 decision is whether
[Mr. Bean] was entitled to an effective date earlier than
August 14, 2006, for the grant of service connection for his
PTSD. Thus, the Court does not possess jurisdiction over
the issue raised by the appellant in his brief—specifically
whether the Board erred in failing to address whether the
appellant had unadjudicated, pending claims for service
connection for generalized anxiety and major depressive
disorder dating back to 1997.”). It therefore dismissed the
appeal. Id. at *5. This appeal followed.
DISCUSSION
I
On appeal, Mr. Bean argues that the Veterans Court
erred in holding that it lacked jurisdiction to consider the
issue that he raised on appeal, that issue being whether
the Board erred in failing to address whether he had unadjudicated pending claims for generalized anxiety disorder
and major depressive disorder dating back to 1997. Mr.
Bean contends that this issue was before the Board and
that the Board thus should have addressed it. Appellant’s
Br. 20. In making this argument, he contends that the decision of the Veterans Court is inconsistent with 38 U.S.C.
§ 7104(a) (1994) (formerly
38 U.S.C. § 4004(a)), the statute
governing Board jurisdiction; and
38 U.S.C. § 7252 (1994)
(formerly
38 U.S.C. § 4052), the statute governing the jurisdiction of the Veterans Court. Mr. Bean also contends
that the decision of the Veterans Court is inconsistent with
prior decisions of that court in, e.g., Travelstead v. Derwinski,
1 Vet. App. 344, 346 (1991), Owens v. Brown, 7 Vet.
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12 BEAN v. MCDONOUGH
App. 429, 433–44 (1995), and In re Smith,
10 Vet. App. 311,
314 (1997), as well as the decision of this court in Maggitt
v. West,
202 F.3d 1370, 1376 (Fed. Cir. 2000). Mr. Bean
argues that these decisions stand for the proposition, applicable in this case, that the jurisdiction of the Veterans
Court extends to matters properly raised before, but not
decided by, the Board. According to Mr. Bean, this was the
case with respect to his assertion of unadjudicated pending
claims. He presented the assertion to the Board, he says,
but the Board failed to address it. Mr. Bean also argues
that what he refers to as the “Secretary’s failure to adjudicate [his] claims for almost 25 years” violates his Fifth
Amendment constitutional due process rights. Appellant’s
Br. 38–43. Mr. Bean asks us to reverse the decision of the
Veterans Court and order the court to direct the VA to
grant him benefits for service-connected generalized anxiety disorder and major depressive disorder. Appellant’s Br.
43; Appellant’s Reply Br. 14–15.
The government responds by addressing first the matter of our jurisdiction. Citing Ledford v. West, 136 F.3d 776,
778 (Fed. Cir. 1998), the government acknowledges that
generally the question of whether the Veterans Court has
jurisdiction over an issue is a matter of statutory interpretation and thus within the scope of our jurisdiction under
38 U.S.C. § 7292. Appellee’s Br. 17. It continues, however,
that we lack jurisdiction to review factual findings of the
Veterans Court relating to jurisdictional issues, or to review the Veterans Court’s application of its jurisdictional
statute to the facts of a particular case, citing Albun v.
Brown,
9 F.3d 1528, 1530 (Fed. Cir. 1993). This rule applies here, the government argues. That is because, in this
case, the Veterans Court’s decision did not involve the interpretation of any statute or regulation. Rather, in this
case, the Veterans Court simply made (i) the determination that the only issue before the Board and addressed by
the Board was whether Mr. Bean was entitled to an earlier
effective date for his PTSD and (ii) the determination that
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BEAN v. MCDONOUGH 13
Mr. Bean’s arguments regarding allegedly unadjudicated
pending claims were not pertinent or related to that issue.
These determinations, speaking to the scope of Mr. Bean’s
claim and appeal, the government says, are factual determinations. Appellee’s Br. 17–18 (citing Comer v. Peake,
552 F.3d 1362, 1372 (Fed. Cir. 2009) and Bonner v. Nicholson,
497 F.3d 1323, 1328 (Fed. Cir. 2007)).
Turning to the merits, the government argues that the
Veterans Court correctly determined that it lacked jurisdiction to consider Mr. Bean’s assertions regarding allegedly unadjudicated pending claims. Appellee’s Br. 25. The
government states that, in July 2012, Mr. Bean submitted
to the RO a statement in support of a claim seeking reconsideration of the May 2012 Board decision. The government then states that, in its May 2019 decision, the Board
found that the filing could not be a “motion for reconsideration, revision, or vacatur” of the Board’s May 2012 decision because it did not meet the requirements for such a
motion. Appellee’s Br. 26. Because Mr. Bean made his
submission to the RO and not the Board, the government
states, the Board correctly determined that the filing could
not constitute a motion for reconsideration or of CUE in the
May 2012 Board decision. Id. The government also asserts
that the Board correctly determined that Mr. Bean’s July
2012 filing did not constitute a CUE claim in regard to the
1997 RO decision.
Id. at 26–28.
The government further states that, in his appeal to
the Veterans Court, Mr. Bean did not raise any arguments
with respect to the issue that the Board did decide, entitlement to an earlier effective date for his service-connected
PTSD. Instead his arguments solely addressed the issue of
whether he had unadjudicated pending claims, a matter
the Board did not decide. Appellee’s Br. 26–27. “Thus,” the
government asserts, “because the scope of the [B]oard’s decision defines the jurisdiction of the Veterans Court, the
only issue before the Veterans Court in this matter was Mr.
Bean’s entitlement to an earlier effective date for his
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14 BEAN v. MCDONOUGH
service-connected PTSD.” Appellee’s Br. 28. According to
the government, since Mr. Bean did not contest that issue,
the court properly dismissed his appeal. Appellee’s Br. 28.
The government urges us to reject Mr. Bean’s argument,
noted above, that he did present to the Board the issue of
unadjudicated pending claims.
Finally, the government urges that Mr. Bean’s Fifth
Amendment due process rights have not been violated because he has no unadjudicated pending claims. Appellee’s
Br. 33–35.
The government concludes by asking us to dismiss Mr.
Bean’s appeal for lack of jurisdiction, or, in the alternative,
to affirm the decision of the Veterans Court.
II
We address first the issue of our jurisdiction. We have
jurisdiction to review decisions of the Veterans Court “with
respect to the validity of a decision of the Court on a rule of
law or of any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual matter)
that was relied on by the Court in making the decision.” 38
U.S.C. § 7292(a). More specifically, we have jurisdiction “to
determine whether the legal requirement of the statute or
regulation has been correctly interpreted in a particular
context where the relevant facts are not in dispute.”
Szemraj v. Principi,
357 F.3d 1370, 1375 (Fed. Cir. 2004).
However, except with respect to constitutional issues, we
do not have jurisdiction to “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).
We have no difficulty concluding that we have jurisdiction in this case. That is so for two reasons. First, Mr.
Bean’s appeal requires us to determine whether, in its December 30, 2021 decision, the Veterans Court correctly interpreted the legal requirements of 38 U.S.C. § 7104, the
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BEAN v. MCDONOUGH 15
Board’s jurisdictional statute, and
38 U.S.C. § 7252, its
own jurisdictional statute. 5 Szemraj,
357 F.3d at 1375.
And second, “the relevant facts are not in dispute” for purposes of our jurisdiction to address legal errors in the Veterans Court’s decision or to reverse its holding that it
lacked jurisdiction.
Id.
The relevant facts are established by the unchallenged
documentary record of (1) Mr. Bean’s July 26, 2012 application to the RO, (2) the RO’s denial of the application on
September 10, 2013, (3) Mr. Bean’s September 30, 2013
NOD, (4) the RO’s SOC on September 21, 2015, and (5) Mr.
Bean’s subsequent appeal to the Board, all of which are recited above. The facts evident from those documents are
reflected in the Veterans Court’s April 28, 2021 remand decision, also recited above, where the court expressly found
that the issues of Mr. Bean’s claims of generalized anxiety
disorder and major depressive disorder “were raised by the
record and should have been addressed by the Board.”
Bean, 2021 WL 1647629, at *6. Although that decision was
withdrawn, the VA, in its motion asking the Veterans
Court to reconsider the April 2021 decision, did not challenge the court’s recitation of facts in the decision. Secretary’s Mot. For Recons., Bean v. McDonough, No. 19-4116
(May 13, 2021).
This case is thus different from Albun, Comer, and Bonner, the decisions upon which the government relies to argue that we lack jurisdiction. In Albun, we were called
5 The Veterans Court did not identify these express
statutory provisions in its December 30, 2021 decision.
However, it is clear from the court’s April 2021 decision and
the Secretary’s motion for reconsideration of that decision
that it was those provisions on which the court based its
subsequent dismissal for lack of jurisdiction. See Bean,
2021 WL 1647629, at *1; Secretary’s Mot. for Recons., Bean
v. McDonough, No. 19-4116 (May 13, 2021).
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16 BEAN v. MCDONOUGH
upon to rule on the Veterans Court’s factual determinations and the court’s application of its jurisdictional statute
to those factual determinations. See
9 F.3d at 1530. In
Comer and Bonner, we were called upon to rule on the factual inquiry into the scope of a veteran’s claim. See Comer,
552 F.3d at 1372; Bonner,
497 F.3d at 1328. In contrast,
the question of whether the Veterans Court has jurisdiction in this case boils down to a question of statutory interpretation, Ledford,
136 F.3d at 778, requiring no resolution
of disputed factual issues.
III
We turn now to the merits of the Veterans Court’s jurisdictional ruling. Two statutes are relevant to this appeal. As noted above, 38 U.S.C. § 7104 sets forth the
jurisdiction of the Board. Subsection (a) of that statute provides that “[d]ecisions of the Board shall be based on the
entire record in the proceedings and upon consideration of
all evidence and material of record and applicable provisions of law and regulation.” As also noted above, the jurisdiction of the Veterans Court is set forth at
38 U.S.C.
§ 7252. Subsection (a) of that statute provides that the Veterans Court has “exclusive jurisdiction to review decisions
of the [Board].” Pursuant to subsection (b), review in the
court is “on the record of proceedings before the Secretary
and the Board.”
A prerequisite to Veterans Court jurisdiction is a decision of the Board. Andre v. Principi, 301 F.3d 1354, 1360
(Fed. Cir. 2002); Maggitt,
202 F.3d at 1375; Ledford,
136
F.3d at 779; see May v. McDonough,
61 F.4th 963, 965 (Fed.
Cir. 2023). Relevant to this case, in Maggitt we stated that
“[a] ‘decision’ of the Board, for purposes of the Veterans
Court’s jurisdiction under section 7252, is the decision with
respect to the benefit sought by the veteran.”
202 F.3d at
1376. Denial of a claim, which includes the failure of the
Board to consider a claim that was reasonably raised before
it, constitutes a decision of the Board—reviewable by the
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BEAN v. MCDONOUGH 17
Veterans Court. See id.; Travelstead,
1 Vet. App. at 346
(“When the [Board] makes a decision (implicitly or explicitly) not to deal with an issue considered at the [RO] level,
then that decision not to decide an issue is a decision by the
[Board] which is properly before this Court.”). In addition,
the Veterans Court, upon exercising jurisdiction in such
circumstances, has repeatedly held—as did the Veterans
Court in its withdrawn April 2021 decision in the present
case—that the Board commits error in not deciding such
issues. Smith,
10 Vet. App. at 314 (“Where the [Board] fails
to adjudicate a claim that was reasonably raised before it,
the net outcome for the veteran amounts to a denial of the
benefit sought. Accordingly, the Court holds as a matter of
law that the Board’s failure to adjudicate the TDIU claim
that was properly before it constitutes a final adverse
[Board] decision with respect to that claim.”); Owens, 7 Vet.
App. at 433 (remanding to the Board for consideration a
claim not addressed by the Board and stating, “[w]hen the
appellant reasonably raises a claim for a particular benefit,
the Board is required to adjudicate the issue of the claimant’s entitlement to such a benefit, or if appropriate, to remand the issue to the RO for development and adjudication
of the issue”); see also Robinson v. Peake,
21 Vet. App. 545,
552 (2008), aff’d sub nom. Robinson v. Shinseki,
557 F.3d
1355 (Fed. Cir. 2009).
The Veterans Court’s holding that it lacked jurisdiction
is clearly contrary to the legal principle that when a claim
is adequately presented to the Board but not addressed by
the Board, the Board’s disposition of the appeal constitutes
a decision of the Board on that claim that may be appealed
to the Veterans Court. The Veterans Court deemed its jurisdiction to be limited to the affirmative determinations
made by the Board, and not to cover a Board disposition of
an appeal that is challenged as improperly failing to address contentions clearly before the Board. See supra pp.
10–11. That is legally incorrect.
Case: 22-1447 Document: 38 Page: 18 Filed: 04/26/2023
18 BEAN v. MCDONOUGH
The legal error matters here. After receiving the
Board’s May 2012 decision, Mr. Bean followed the Board’s
suggestion and submitted to the RO a Statement in Support of Claim on Form 21-4138. In that form, he not only
cited the CUE regulation, 38 C.F.R. § 3.105(a), but he also
argued that, in accordance with
38 C.F.R. § 3.160(c), he had
pending, unadjudicated claims from 1997 for disability
from service-connected generalized anxiety disorder and
major depressive disorder. Then, after the RO denied the
claim, Mr. Bean appealed to the Board. In its May 2019
decision, however, the Board failed to address the claim on
its merits, even though, in the words of its jurisdictional
statute,
38 U.S.C. § 7104(a), it was part of “the entire record in the proceeding.” See Cogburn v. Shinseki,
24 Vet.
App. 205, 214–15 & n.5 (2010) (finding “it was error for the
Board not to address Mr. Cogburn’s disagreement with the
[RO]’s refusal to adjudicate what Mr. Cogburn argued were
pending claims”). Instead, the Board concluded that the
only matter before it was an improper request for reconsideration of its May 2012 decision, which by its terms did not
decide whether the RO had before it in 1997, and did not
adjudicate, the claims based on anxiety and depression
now at issue. As a result, the Board in May 2019 dismissed
Mr. Bean’s appeal.
When Mr. Bean appealed to the Veterans Court, the
Veterans Court recognized in its April 2021 decision that
Mr. Bean had clearly presented his claim to the Board and
that the Board had erred by failing to consider it. Accordingly, it remanded the case to the Board for the Board to
address the unadjudicated claims issue. Thus, in April of
2021, the court correctly exercised jurisdiction over a “decision[] of the Board.” That decision arose from the Board’s
denial of Mr. Bean’s claim by reason of the Board’s failure
to exercise jurisdiction under 38 U.S.C. § 7104(a) and to
consider the claim.
Then, however, in response to the Secretary’s motion
for reconsideration, the court reversed itself, withdrew its
Case: 22-1447 Document: 38 Page: 19 Filed: 04/26/2023
BEAN v. MCDONOUGH 19
April 2021 decision and issued the December 30, 2021 decision that is now on appeal. That was error. In dismissing
Mr. Bean’s appeal, the Veterans Court misinterpreted the
pertinent law of both this court and the Veterans Court regarding its jurisdiction under 38 U.S.C. § 7252. As seen,
that law is that the Board’s failure to decide a claim clearly
presented to it constitutes a “decision” of the Board, which
vests the Veterans Court with jurisdiction. In short, the
court got the issue of its own jurisdiction right the first
time.
Accordingly, the Veterans Court erred in holding that
it lacked jurisdiction. Mr. Bean is entitled to have the December 30, 2021 decision of the Veterans Court reversed
and his case remanded for the Veterans Court to decide an
issue within its jurisdiction: whether, as the Veterans
Court ruled in its withdrawn April 2021 decision, the
Board erred in not addressing on the merits Mr. Bean’s
contention, plainly presented to the Board, that the RO had
before it in 1997, and did not adjudicate, claims based on
generalized anxiety disorder and major depressive disorder. Without expressing doubt about the correctness of the
now-withdrawn April 2021 resolution of that issue, we do
not decide it ourselves at this jurisdictional stage. Having
noted above some precedent on the issue, we add that, to
the extent relevant, the Veterans Court should also take
account of our precedent establishing that, when the RO
has not adjudicated claims before it, there is not a final decision on those claims and “a CUE analysis [with its demanding standards] is not required.” Lang v. Wilkie, 971
F.3d 1348, 1355 (Fed. Cir. 2020);
id. at 1352 (agreeing that
“only final decisions are subject to CUE”); see also Richardson v. Nicholson,
20 Vet. App. 64, 72 (2006). 6
6 Since Mr. Bean’s claim of unadjudicated pending
claims was before the Board in 2019, his failure to appeal
the April 2020 RO decision appears to be irrelevant under
Case: 22-1447 Document: 38 Page: 20 Filed: 04/26/2023
20 BEAN v. MCDONOUGH
CONCLUSION
For the foregoing reasons, the decision of the Veterans
Court is reversed. The case is remanded to the court for
further proceedings consistent with this opinion. 7
REVERSED AND REMANDED
COSTS
Costs to Mr. Bean.
the principle, long recognized by the Veterans Court, that
“where the claim was placed into appellate status by virtue
of an NOD, subsequent RO decisions cannot resolve the
pending claim.” Jones v. Shinseki, 23 Vet. App. 122, 125
(2009), aff’d on other grounds,
619 F.3d 1368 (Fed. Cir.
2010); see Grimes v. McDonough,
34 Vet. App. 84, 92
(2021).
7 Because Mr. Bean’s claim will be remanded to the
Board for further proceedings, his constitutional due process argument is moot at this time. See Cushman v.
Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). The need
for a remand also suffices to answer Mr. Bean’s request
that we direct the VA to grant him benefits.
