The Court held that a claim for an increased rating remains in controversy when less than the maximum available benefit is awarded, so a later RO award of 30% did not extinguish the pending appeal from a prior NOD seeking a higher rating. The decision is a key jurisdiction and rating appeal case because VA must generally treat a claimant as seeking the maximum schedular benefit unless the claimant clearly limits the appeal.

The veteran appealed a Board decision denying a rating higher than 30 percent for PTSD. The Court first addressed jurisdiction because the claim arose from an NOD filed before November 18, 1988, which could not itself confer Court jurisdiction under the VJRA. Applying Hamilton v. Derwinski and related jurisdictional principles, the Court concluded that the veteran’s February 1988 NOD placed in issue entitlement to a rating higher than 10 percent, and that the RO’s later award of 30 percent did not fully satisfy the appeal because VA’s rating schedule allowed higher ratings and the veteran had not clearly limited the appeal to 30 percent. The Court explained that, absent a clear statement limiting the issue, a claimant seeking an increased rating is presumed to seek the maximum benefit available. Because the pre-VJRA NOD remained pending and could not be supplemented by a new jurisdiction-conferring NOD after November 18, 1988, the Court dismissed the appeal for lack of jurisdiction. The case is especially important for the rule that a partial grant does not end an increased-rating appeal unless the claimant clearly indicates satisfaction with the awarded level or otherwise withdraws the appeal.

The Federal Circuit held that an oral withdrawal of an appeal at a Board hearing is valid only if it is explicit, unambiguous, and made with full understanding of the consequences. Because the Board and Veterans Court did not address whether that third requirement was satisfied, the case was vacated and remanded.

Lawrence Acree appealed after the Board dismissed seven of his claims based on his hearing-room statement that he was withdrawing them. The Board relied on 38 C.F.R. § 20.204 and the Veterans Court affirmed, reasoning that the transcript showed the withdrawal was explicit and unambiguous. On appeal, the Federal Circuit held that a verbal withdrawal at a Board hearing is effective only when it is explicit, unambiguous, and made with full understanding of the consequences, adopting the DeLisio standard for oral withdrawals at hearings. The court concluded that the Veterans Court erred by failing to require the Board to address the veteran’s understanding of the consequences of withdrawal. Because the record contained no finding on that issue, the Federal Circuit vacated and remanded for further development.

The Court held that obesity may be a disability for secondary service connection if it causes functional impairment of earning capacity, but it upheld the view that obesity is not a disease for direct service connection under section 1110. The Board’s denial was vacated because it failed to discuss favorable evidence of functional impairment.

The appellant sought service connection for obesity, including as secondary to service-connected PTSD. The Board denied the claim relying on VA General Counsel Precedent Opinion 1-2017 and on the view that obesity is not a disease or disability for VA compensation purposes. On appeal, the Court first held that it had jurisdiction to review whether obesity may be a disability for purposes of 38 U.S.C. § 1110, citing Larson v. McDonough and Saunders v. Wilkie. The Court concluded that the General Counsel’s blanket view that obesity is not a disability was not persuasive because Saunders defines disability as functional impairment of earning capacity, and nothing in Saunders supports excluding a condition merely because not every person with that condition is impaired. At the same time, the Court held that the General Counsel’s view that obesity is not a disease for purposes of direct service connection remained persuasive, so the Court did not disturb the Board’s direct-service-connection analysis. For secondary service connection, however, the Court held that the disease/injury requirement is not controlling in the same way and that the General Counsel’s regulation-based rationale was inconsistent with the governing statute and Spicer. The Court ultimately vacated and remanded the secondary-service-connection portion of the Board decision because the Board failed to discuss favorable evidence suggesting functional impairment, including a treatment record linking weakness and postural changes to obesity.

The Federal Circuit held that the Veterans Court applied the correct implicit denial standard and properly concluded that Adams’s 1951 endocarditis claim was denied by the VA’s 1951 and 1952 actions. Because the record reasonably notified him that any heart-condition claim, including endocarditis, had been rejected, the claim was not pending for an earlier effective date.

Lee Adams filed a 1951 claim for service connection for a heart condition after a brief period of service and was denied by the regional office and later by the Board in 1952. Decades later, VA granted service connection for heart disease related to endocarditis, but assigned an effective date in 1989 rather than 1951. Adams argued that his original endocarditis theory had never been expressly denied and therefore remained pending, which would have entitled him to an earlier effective date. The Federal Circuit rejected that argument and affirmed.

The court explained the implicit denial rule, under which an unaddressed claim can be considered finally adjudicated if the VA’s decision, viewed in context, would reasonably notify the veteran that the claim was denied. Applying Deshotel and Ingram, the court held that the 1951 and 1952 decisions sufficiently signaled denial of the endocarditis theory because the regional office considered Adams’s affidavit referencing bacterial endocarditis, the Board reviewed the hospital report and found no active cardiac pathology, and the claims were closely related in time and substance. The court also rejected Adams’s due process argument, reasoning that the rule itself is a notice-based doctrine and that he received adequate notice and opportunity to respond.

Practically, the decision limits efforts to preserve earlier effective dates by characterizing later-granted benefits as an unadjudicated claim. Where VA’s prior decision reasonably encompasses the theory, the claim is final and a later award will generally be effective no earlier than the reopened claim date.

The Federal Circuit held that VA’s 1985 timeliness determination never became final because VA failed to notify the claimant of his right to appeal. As a result, the claimant could directly challenge that determination on remand, and the court did not reach equitable tolling or CUE.

The claimant sought an earlier effective date for PTSD benefits and argued that an RO determination in 1985, which found his 1985 letter untimely as a notice of disagreement, should not be treated as final. The Federal Circuit reviewed only the legal question of finality. It held that because VA did not notify the claimant of his right to appeal the 1985 timeliness determination, that decision never became final under the notice requirements of 38 U.S.C. § 5104(a) and 38 C.F.R. § 3.103(b).

Because the 1985 determination was not final, the court concluded that the claimant’s equitable-tolling argument and collateral CUE theory were not yet ripe. The claimant would instead have the opportunity on remand to directly challenge the 1985 timeliness ruling and show good cause under 38 C.F.R. § 3.109(b). The decision clarifies that proper notice of appellate rights is essential to finality in the VA system.

The Federal Circuit affirmed dismissal of an untimely Veterans Court appeal and held that the Veterans Court did not use the wrong legal standard when it required a showing that the asserted extraordinary circumstances caused the late filing. The decision reinforces that equitable tolling under Holland and Menominee includes causation, while leaving factual application to the Veterans Court.

Marion Aldridge appealed the Veterans Court’s dismissal of his appeal as untimely under 38 U.S.C. § 7266(a), which requires a notice of appeal within 120 days of the Board’s decision. He argued that equitable tolling should apply because multiple family deaths and resulting depression prevented timely filing. The Veterans Court rejected tolling, reasoning that the record did not show those events directly or indirectly affected the late filing, and the Federal Circuit affirmed.

The Federal Circuit held that it had jurisdiction to review only whether the Veterans Court applied the correct legal standard, not the factual application of that standard to Aldridge’s circumstances. On the merits of the legal question, the court concluded that the Veterans Court did not impose an improper requirement. Relying on Holland and Menominee, the court explained that the second prong of equitable tolling necessarily includes causation: the extraordinary circumstance must stand in the way of timely filing and prevent it. Because the Veterans Court’s analysis focused on whether the asserted circumstances caused the delay, it applied the correct standard. The court therefore affirmed dismissal, while the dissent argued that the equities favored tolling on these facts.

The Federal Circuit held that a sworn affidavit from a claimant’s representative is not categorically insufficient to trigger the common law mailbox rule. The court reversed because the Veterans Court applied a per se rule against self-serving affidavits instead of assessing credibility.

Roy Anania challenged the Board’s determination that his substantive appeal from a VA rating decision was untimely. The dispute centered on whether a sworn affidavit from his attorney, stating that the substantive appeal had been mailed to the Waco Regional Office on January 18, 2010, was enough to invoke the common law mailbox rule and create a presumption of receipt before the March 3, 2010 deadline. The Board and Veterans Court treated the affidavit as per se insufficient because it was “self-serving.”

The Federal Circuit reversed. Relying on its prior mailbox-rule decision in Rios and surveying sister-circuit authority, the court held that the common law mailbox rule does not include a categorical prohibition on party affidavits. Instead, a sworn statement can be credible evidence of mailing if it shows the document was properly addressed, stamped, and mailed in adequate time to reach the destination in the ordinary course. The court also rejected the Government’s attempt to analogize the case to tax-law mailbox-rule authorities under IRC § 7502. Because the Government did not challenge the affidavit’s credibility or assert that the appeal was improperly addressed, unstamped, or mailed too late, the court reversed the Veterans Court’s timeliness ruling.

The Court held that the presumption of regularity governing Board mailings was rebutted by evidence showing irregular mailing practices, so the 120-day appeal period did not begin until the decision was actually received by the veteran’s contractual representative. The Notice of Appeal was therefore timely and jurisdiction existed.

On reconsideration, the Court addressed whether the veteran’s Notice of Appeal was timely under 38 U.S.C. § 7266. The Board decision was dated October 24, 1990, and the Notice of Appeal was received March 1, 1991, outside the ordinary 120-day period. The dispute turned on whether the Board had properly mailed a copy of the decision to the claimant’s representative as required by 38 U.S.C. § 7104(e), because the appeal period begins only when notice is mailed pursuant to that statute.

The Court reaffirmed that government officials are entitled to a presumption of regularity, meaning their official duties are presumed properly performed. But the presumption can be rebutted by clear evidence to the contrary. Here, the appellant submitted declarations and contemporaneous correspondence suggesting that the Board’s mailing practices were irregular and that the representative of record may not have been served in the regular course. Although the Secretary later offered a declaration describing ordinary mailing procedures, the appellant produced uncontroverted evidence that contradicted the Secretary’s claimed practice. Because the Secretary did not carry the burden of showing proper mailing after the presumption was rebutted, the Court held that the 120-day period did not begin until the defect was cured when the decision was actually received on November 1, 1990.

The Court therefore denied dismissal for lack of jurisdiction and allowed the appeal to proceed on the merits. The opinion also criticized both sides’ litigation conduct and emphasized that representatives must maintain clear mailing addresses if they expect to receive Board decisions directly.

The Federal Circuit held that 38 U.S.C. § 7107 does not unambiguously require a veteran’s personal presence at a Board hearing for counsel to present witness testimony. The court vacated and remanded for reconsideration of the statute and related regulations.

Jesus Atilano sought a higher PTSD rating and earlier effective dates, and he requested a Board hearing so that his counsel could present live testimony from a medical expert. When Mr. Atilano was unable to attend because of severe disability, the VLJ refused to hear the expert’s testimony, and the Board treated the absence as a withdrawal of the hearing request. The Veterans Court affirmed, reasoning that 38 U.S.C. § 7107 unambiguously required the appellant’s personal participation in the hearing.

The Federal Circuit rejected that interpretation. Looking to the statutory text, structure, and legislative history, the court held that § 7107 does not clearly require the claimant to be personally present for a hearing requested through counsel. The court emphasized that the statute grants the appellant an opportunity for a hearing, but does not expressly say that the appellant must attend in person. It also read the references to “personally appearing” and “personal hearing” as distinguishing in-person from virtual hearings, not imposing a personal-attendance requirement in all circumstances. Because the Veterans Court had treated the statute as unambiguous, the Federal Circuit vacated and remanded for further consideration of the regulations and related deference issues.

The opinion does not decide whether the regulations independently require attendance or whether any error was harmless. Its practical effect is to protect the hearing rights of severely disabled veterans who may be unable to appear personally but whose representatives can present testimony and argument on their behalf.

The Court vacated and remanded because VA failed to properly develop and verify the veteran’s claimed U.S. Army service, and because the Board did not address other reasonably raised issues in the record.

The appellant sought non-service-connected pension benefits based on disputed wartime service in the Philippine Commonwealth Army and claimed U.S. Army service. The Court explained that service before July 1, 1946, in the organized military forces of the Philippine Commonwealth generally does not qualify as active service for non-service-connected benefits under 38 U.S.C. § 107(a), but the record also contained conflicting evidence and the veteran’s specific requests for verification of his U.S. Army service. Because the claim was well grounded, VA had a duty to assist by making the proper inquiry to certify or deny the asserted service. The Court held that VA failed to do so and also failed to address other issues reasonably raised by the veteran’s submissions, including compensation-versus-pension entitlement and related matters. The Court vacated the Board decision and remanded for additional development, adequate reasons or bases, and application of the benefit-of-the-doubt doctrine.

The Court vacated and remanded because VA failed to properly develop the veteran’s claim of qualifying service and failed to address reasonably raised issues beyond pension eligibility. Azurin reinforces VA’s duty to assist in verifying service records and its obligation to liberally read the record for all claims raised before the Board.

The appellant sought non-service-connected pension benefits based on asserted qualifying service in the U.S. Army and the Philippine Commonwealth forces during World War II. The Board denied pension on the ground that his service did not meet the statutory requirements. On appeal, the Court focused first on 38 U.S.C. § 107(a), which excludes certain Philippine Commonwealth Army service from being treated as active military service for non-service-connected benefits. The Court recognized that the statutory bar controlled pension eligibility if the veteran’s service was only that covered by § 107(a), but it also noted the record contained conflicting and incomplete information about whether the appellant had additional U.S. Army service. Because the veteran specifically asked VA to verify his claimed service and the record suggested potential service documentation issues, the Court held that VA had not fulfilled its duty to assist. The Court also held that the Board failed to address other issues reasonably raised by the veteran’s submissions, including a claim for compensation and the need for a hearing or POW examination development. The decision was vacated and remanded for further development, proper service verification, adequate reasons or bases, and consideration of the benefit-of-the-doubt doctrine.

The Court vacated and remanded a pension denial because VA failed to properly verify the appellant’s claimed U.S. Army service and failed to address other reasonably raised issues in the record.

The appellant sought non-service-connected pension benefits based on asserted qualifying service in the U.S. Army/USAFFE in the Philippines. The Court reviewed a record showing conflicting service documentation and the veteran’s repeated requests that VA verify specific service facts. Although the Board denied pension based on lack of qualifying service under 38 U.S.C. § 107(a), the Court emphasized that the veteran had submitted a well-grounded claim and had identified specific information that VA could and should have attempted to verify through appropriate governmental channels.

The Court held that VA violated its duty to assist by failing to make the proper inquiry to certify or deny the claimed U.S. Army service, especially given the veteran’s specific request for substantiation. The Court also held that the Board failed to address other issues reasonably raised by the record, including entitlement to compensation versus pension and other claim theories. The decision was vacated and remanded for further development, adequate reasons or bases, and application of the benefit-of-the-doubt doctrine where appropriate.

The Court dismissed for lack of jurisdiction because the veteran had not filed a valid notice of disagreement after the statutory cutoff date, and a later letter could not function as a new NOD for the same claim under Hamilton.

The appellant, the widow of a veteran whose pension benefits had been terminated in a forfeiture decision, sought review after the Board declined to decide whether benefits should be reinstated. The Court’s jurisdictional analysis focused on whether a valid notice of disagreement had been filed on or after November 18, 1988, as required by the Veterans Judicial Review Act and 38 U.S.C. § 7105. The Court concluded that the veteran’s August and October 1988 letters predated the jurisdictional cutoff, and that his later May 1989 letter could not serve as a new valid NOD because Hamilton held that only one valid NOD may exist for a particular claim until final adjudication or withdrawal. Because no valid NOD existed, the Court dismissed the appeal for lack of jurisdiction.

The Federal Circuit held that, when a veteran makes a plausible equitable-tolling showing, VA must provide records in its possession and may be required to help develop additional jurisdictional facts. The case is important because it extends fair record development principles to Veterans Court jurisdictional disputes.

Larry Barrett filed an untimely appeal to the Veterans Court and argued that mental illness entitled him to equitable tolling of the 120-day deadline in 38 U.S.C. § 7266. After this court previously held that mental illness can justify tolling under some circumstances, the Veterans Court on remand declined to require additional record development and dismissed for lack of jurisdiction. The Federal Circuit reversed, holding that when a veteran alleges facts sufficient to make equitable tolling a live jurisdictional issue, the Veterans Court may require VA to provide relevant records already in its possession and, where necessary, to develop additional facts uniquely within VA’s knowledge and competence. The court emphasized fairness, VA’s superior access to medical and claims information, and the Veterans Court’s authority to determine its own jurisdiction. The decision permits the Veterans Court to use orders or remands to obtain evidence such as declarations, medical examinations, or other jurisdictionally relevant proof. The concurrence cautioned that the opinion should not be read to impose a broad, freestanding duty on VA to assist in adversarial judicial proceedings absent a court directive.

The Federal Circuit affirmed because most of the claimant’s arguments attacked factual weighing beyond its jurisdiction, and under Rizzo VA was not required to affirmatively prove expert qualifications absent a specific competence challenge. The decision also upheld the Veterans Court’s enforcement of its rule against citing nonprecedential opinions.

Mr. Bastien served from 1972 to 1976 and worked in a radiation facility where he handled monkeys used in radiation experiments. After his death from pneumonia resulting from Waldenström’s macroglobulinemia, his widow sought DIC and related benefits based on alleged in-service ionizing radiation exposure. The Board found the evidence conflicted on both radiation dose and medical nexus, and it assigned greater probative value to VA physicians’ opinions concluding that the cancer was unlikely to be caused by service radiation exposure. The Veterans Court affirmed, and the Federal Circuit in turn held that most of the widow’s arguments merely disputed factual findings and the Board’s weighing of evidence, which the court lacked jurisdiction to review under 38 U.S.C. § 7292(d)(2). The court further held that Rizzo controlled the expert-qualification issue: unless the claimant specifically challenges a VA expert’s competence or qualifications, VA is not required to present affirmative proof of the physician’s expertise before the Board may rely on the opinion. Finally, the court upheld the Veterans Court’s decision to strike an opening brief that cited nonprecedential opinions in violation of its rules. The case matters primarily for jurisdiction and evidentiary strategy in Federal Circuit appeals, and for preserving a concrete, specific challenge if a claimant intends to contest a VA medical expert’s competency.

The Federal Circuit held that the Secretary's termination of an attorney's VA accreditation under 38 U.S.C. § 5904(b) was a decision under a law affecting the provision of benefits, giving the Board jurisdiction and allowing mandamus relief in the Veterans Court. The court emphasized the integrated structure of § 5904 and rejected the argument that accreditation discipline was too attenuated from benefits adjudication.

Bates, a VA-accredited attorney, had his accreditation terminated by the VA General Counsel after the agency concluded he had engaged in unlawful and dishonest practice under 38 U.S.C. § 5904(b). He sought a statement of the case so he could appeal to the Board, and when the VA refused, he petitioned the Veterans Court for mandamus. The Veterans Court dismissed for lack of jurisdiction, reasoning that § 5904(b) was not a law affecting the provision of benefits. The Federal Circuit reversed.

The Federal Circuit held that § 5904, taken as a whole, is a single law affecting the provision of benefits and that subsection (b) is therefore within the scope of 38 U.S.C. § 511(a). The court relied on its prior decision in Cox v. West and on the statutory structure of § 5904, explaining that certification, fee regulation, and decertification are interrelated parts of the veterans benefits system. It concluded that the Board had jurisdiction, the Veterans Court had potential jurisdiction, and mandamus was available to compel issuance of the statement of the case. The concurrence agreed in the result but would have reached it by construing § 511(a) to cover the particular provision rather than the entire public law.

The Federal Circuit held that the Veterans Court erred in dismissing for lack of jurisdiction where the Board failed to address a reasonably raised claim for unadjudicated psychiatric disabilities. A Board omission on a plainly presented issue is itself a reviewable Board decision.

Wilfred Bean sought an earlier effective date for PTSD and also argued that his 1997 filings had left claims for generalized anxiety disorder and major depressive disorder pending and unadjudicated. The Board dismissed his appeal as an earlier-effective-date matter and treated his submission as a challenge to a prior final decision. The Veterans Court initially recognized that the Board had erred by failing to address the unadjudicated-claim theory, but later withdrew that decision and held it lacked jurisdiction because the Board had not expressly decided that theory.

The Federal Circuit reversed. It held that jurisdiction under 38 U.S.C. § 7252 turns on whether there was a Board decision on the benefit sought, and a Board’s failure to decide a claim that was clearly presented to it is itself a Board decision subject to Veterans Court review. The court distinguished cases involving factual disputes about the scope of a claim, explaining that the relevant facts here were undisputed and the question was one of law. The case was remanded for the Veterans Court to address the merits of whether the Board erred by failing to adjudicate the pending-claim issue.

The Federal Circuit held that 38 U.S.C. § 1720G(c)(1) bars Board review only of decisions about the furnishing of assistance or support, not all Caregiver Program decisions, and therefore affirmed mandamus compelling Board review of non-medical eligibility determinations.

The Federal Circuit reviewed a Veterans Court mandamus order arising from VA’s Caregiver Program. VA had taken the position, based on 38 U.S.C. § 1720G(c)(1), that all Caregiver Program decisions were “medical determinations” outside Board jurisdiction. The Beaudettes challenged the VA’s denial of continued program eligibility, including the agency’s refusal to delay reassessment and its reliance on a paper review when Mr. Beaudette could not attend an in-person evaluation.

The Federal Circuit rejected VA’s broad reading of the statute. Applying the strong presumption favoring judicial review, the court held that § 1720G(c)(1) only removes from Board review decisions affecting the furnishing of assistance or support—meaning actual medical-treatment-type judgments—not every eligibility or program administration decision. The court emphasized that Congress knew how to bar Board review expressly when it wanted to, and that the Caregiver Act’s text did not broadly strip review. Because the Beaudettes sought review of a non-medical eligibility decision, the Board had jurisdiction and mandamus was proper.

The practical effect is that VA cannot categorize every Caregiver Program decision as unreviewable. Eligibility and other non-treatment determinations remain subject to Board review, while only true furnishing-of-assistance/support decisions are outside the Board’s jurisdiction.

The Court held that 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 do not govern factual disputes concerning the Court’s jurisdiction. When jurisdictional facts are disputed, the appellant must prove jurisdiction by a preponderance of the evidence, and the benefit-of-the-doubt rule does not apply.

Bethea sought panel review of a single-judge order dismissing her appeal as untimely. The jurisdictional dispute centered on whether she received the Board decision late, which would have made her notice of appeal timely. She argued that the benefit-of-the-doubt rule should apply to the factual dispute over receipt of the Board decision. The Court rejected that argument, explaining that 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 apply to claims before VA adjudicators, not to the Court’s jurisdictional determinations. The Court further held that a party invoking the Court’s jurisdiction must establish the jurisdictional facts by a preponderance of the evidence. Because Bethea had not done so, the appeal remained dismissed for failure to file a timely notice of appeal.

The Federal Circuit held that an EAJA application filed after a Veterans Court consent remand was timely because final judgment occurs when the order is no longer appealable, not when the Veterans Court issues its mandate.

Darald Bly sought attorney fees under the Equal Access to Justice Act after the Veterans Court granted a joint motion for partial remand to the Board and stated that its remand order constituted the court’s mandate. The Veterans Court denied the fee request as untimely under its own rules, reasoning that the judgment became final immediately upon issuance of the remand order. The Federal Circuit reversed.

The Federal Circuit held that EAJA’s statutory definition of “final judgment” controls, not the Veterans Court’s mandate rules. Under 28 U.S.C. § 2412(d)(2)(G), a judgment is final only when it is “final and not appealable.” Because Veterans Court judgments are ordinarily appealable for 60 days, the remand order did not become “not appealable” until that appeal period expired. The court rejected the government’s argument that limited appealability of a consent remand made the order effectively final on the date it issued, and it also rejected the idea that the remand order was an “order of settlement.” The court further noted that prompt remand to the Board and EAJA timing can coexist, because the Veterans Court may issue its mandate immediately while EAJA finality still runs from the statutory appeal period.

The result was a vacatur and remand for consideration of the EAJA application on the merits. The case is important because it prevents local court-rule finality concepts from shortening the federal statutory EAJA filing window and clarifies that practitioners may file EAJA applications after a Veterans Court remand so long as the filing falls within the statutory timing rules.