N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ RICHARD M. O'CONNELL, Claimant

- Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2023

- 2199

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 22

- 477, Judge Amanda L. Meredith.

______________________

Decided: February 8, 2024

______________________

R ICHARD M. O'C ONNELL , Farmington Hills, MI, pro se.

J OSHUA M OORE , Commercial Litigation Branch, CivilDivision, United States Department of Justice, Washington, DC, for respondent

- appellee. Also represented by B RIAN M. B OYNTON , T ARA K. H OGAN , P ATRICIA M. M C C ARTHY ; A MANDA B LACKMON , B RIAN D. G RIFFIN , Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. Case: 23-2199 Document: 12 Page: 1 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 2

______________________

Before D YK , C LEVENGER , and C HEN , Circuit Judges

. P ER C URIAM

. Richard M. O’Connell appeals a decision of the UnitedStates Court of Appeals for Veterans Claims (CAVC) affirming the decision of the Board of Veterans’ Appeals (Board) denying a rating for gastroesoph ageal reflux disease (GERD) with Barrett’s esophagus in excess of 30% forthe period of May 12, 2016, to September 13, 2019. O’Connell does not appeal the CAVC’s dismissal of his appeal to that court concerning the Board’s denial of entitlement to an init ial rating in excess of 10% prior to July 1, 2014, and in excess of 60% from July 1, 2014, to May 11, 2016, which the CAVC dismissed as abandoned. See O’Connell v. McDonough , 2023 WL 3143712, at *1, *4 (Vet. App. Apr. 28, 2023) (“CAV C Decision”).

B ACKGR OUND

A. Service and Medical Background
O’Connell served in the United States Army from August 1969 to May 1971. Id. at *1. In October 2010, during

a Department of Veteran’s Affairs (VA) examination,O’Connell was diagnosed with GERD, which was later classif ied as “highly symptomatic” in an examination in July of 2014. O’Connell , No. 200826

- 106207, 2020 WL 9049581, slip op. at *1, *2

– 3 (B.V.A. Dec. 22, 2020) (“Board Decision”). During the July 2014 examination, the examiner noted that O’Connell suffered “sy mptoms productive of cons iderable impairment of health, persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, nauseathat occurs [four] or more times a year, vomiting that occurs [four] or more times a year, and hematemesis that occ urs [two] times per year.” Id . at *3. In May of 2016, O’Connell was hospitalized for mental health issues at a VA facility. CAVC Decision , 2023 WL 3143712, at *1. Case: 23-2199 Document: 12 Page: 2 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 3

From May to July of 2016, the VA medical records demonstrated that O’Connell “denied naus ea, vomiting, abdominal pain, melena, hematochezia, or hematemesis”(May 12, 2016), reported “no abdominal pain, nausea, vomiting, constipation, diarrhea [and showed] no blood in stool or melena” (May 13, 2016), and “denied nausea, vomiting, diarrhea, constipation, and anorexia

- weight loss” (July 2016). Board Decision , 2020 WL 9049581, at *3

. Each ofthese records were created while O’Connell was being evaluated for psychiatric issues. CAVC Decision , 2023 WL 3143712, at *1. In August of 2016, O’Connell also “reported that his GERD was troublesome with eating, and that there was some occasio nal dysphagia.” Board Decision

, 2020 WL 9049581, at *3. Records from VA treatment from 2017 to 2019 “generally note that [O’Connell] continues totake medication for his reflux/heartburn, and that he occasionally experiences dysphagia” but “do not reflec t complaints or findings of additional symptoms such as nausea, vomiting, pyrosis, heartburn, regurgitation, hematemesis, or melena and show [O’Connell] denied the presence of many of these symptoms during routine gastrointestinal evaluations.” Id.

B. Board Decision
In August of 2018, the Board granted O’Connell entitlement to disability compensation for GERD, with Barrett’s esophagus, which resulted from medications taken to treat his service

- connected psychiatric disability. CAV C Decision , 2023 WL 3143712 , at *1. Then, “[i]n September2019, the agency of original jurisdiction (AOJ) implemented the Board’s decision and assigned a 10% [disability] rating, effective March 9, 2011, and a 30% rating, effective July 1, 2014.” Id. In response, O’Connell filed aDecision Review Request: Board Appeal (Notice of Disagreement) to request that the Board “increase his disability rating for GERD from 30% to 60%.” Id. The Board, on December 22, 2020, granted the 60% rating for the period from July 1, 2014, to May 11, 2016, but denied entitlement Case: 23-2199 Document: 12 Page: 3 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 4

to a rating above 10% prior to July 1, 2014, or a rating above 30% from May 12, 2016, to September 13, 2019. Board Decision , 2020 WL 9049581, at *4.

C. CAV C Decision
O’Connell appealed the Board’s decision to the CAV C

, which began by finding that, since O’Connell did not raise arguments regarding the Board’s denial of entitlement to an initial rating in excess of 10% prior to July 1, 2014, or in excess of 60% from July 1, 2014, to May 11, 2016, appeal on those issues was abando ned. CAV C Decision , 2023 WL 3143712, at *1. Thus, the issues on that appeal concerned only the period of May 12, 2016, to September 13, 2019. Id.
In that proceeding, O’Connell argued: (1) that “[t]he Board’s decision to assign a lower, staged disabili ty rating for May 13, 2016, to September 13, 2019, as compared to the preceding time period, should be reversed” because thelack of evidence on the record demonstrating an improvement in his condition made the decision clearly erroneous; and, alternativel y, and (2) the Court should remand for reexamination of O’Connell’s condition because the Board violated its duty to assist by “fail[ing] to order a new VA medical examination before reducing O’Connell’s disability rating in view of three days of irrelevan t medical records.” 1 Appellant’s CAV C Br. at 4. O’Connell first argued that theBoard clearly erred in relying on the May 2016 medical records to establish that O’Connell’s disability improved because the records were made by doctors specializing in
tre ating psychiatric disorders and in conjunction withO’Connell’s psychiatric episode, during which he was mentally incapacitated. Appellant’s CAV C Br. at 8, 12. O’Connell then asserted that the Board’s duty to assist requires

1 O’Connell only appeals to this court on the basis ofhis second argument that the Board violated its duty to assist. Case: 23-2199 Document: 12 Page: 4 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 5

that any doubt as to the degr ee of disability be resolved in favor of O’Connell, and that reasonable doubt existed even if the psychiatric records were properly considered by the Board “due to the extraordinary content of such medical records” and because “there is no other corroborat ing evidence that the Board relied on.” Appellant’s CAV C Br. at 12 (citing 38 C.F.R. § 4.3). According to O’Connell, since the record did not adequately demonstrate the current state of his disability, the Board was required to conduct a medical examinat ion to fulfill its duty to assist and failed to do so before determining that the 60% rating would not continue for the period from May 12, 2016, to September 13, 2019. Appellant’s CAV C Br. at 12 (citing Goss v. Brown , 9 Vet. App. 109, 114 (1996); 38 U.S.C. § 5103A(d)). O’Connell noted that reexamination is necessary “if it islikely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect.” Appellant’s CAV C Br. at 12 (quoting 38 C.F.R. § 3.327(a)). Since, according to O’Connell, there was insufficient medical evidence for the Board to determine that his conditionimproved, the Board’s failure to order a new medical examination violated its duty to assist. A ppellant’s CAV C Br. at 12. The Secretary of Veterans’ Affairs (Secretary) “generally dispute[d] [O’Connell’s] arguments and urge[d] the [c]ourt to affirm.” CAVC Decision , 2023 WL 3143712, at *2.

The CAV C began by rejecting O’Connell’s first argument due to his flawed portrayal of the 30% rating as a “reduction” of the initial rating rather than as part of a “staged rating,” 2 before turning to his argument that the

2 Separate disability ratings for distinct periods of time , known as “staged ratings,” may be assigned to different periods based on the f acts found. CAVC Decision , 2023 Case: 23-2199 Document: 12 Page: 5 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 6

Board violated its duty to assist. Id. at *4. The CAV C then found that O’Connell did not demonstrate that the Board failed to meet its obligation under 38 C.F.R. § 3.327(a) to provide a reexamination and “that the evidence was too oldor insufficient to demonstrate that his condition had improved .” Id. The CAVC reject ed his argument as missi ng the mark on several issues: “primarily, that this is not arating reduction case; that [O’Connell] has not demonstrated that the Board relied solely on the May 2016 records, erred in affording those records probative value, or relied on the lack of evid ence; and that the Board adequately explained why the evidence showed that a 30% rating was warranted.” Id. Thus, the CAV C affirmed theBoard’s decision denying O’Connell’s entitlement to a disability rating in excess of 30% from May 12, 2016, to Septemb er 13, 2019. Id. He now appeals that decision to this
court

. D ISCUSSION This court’s jurisdiction over CAVC decisions is limited by statute to the review of questions of law

— such as “challenge[s] to the validity of any statute or regulation or any interpretation thereof”

— and thus, absent a constitutionalissue, this court does not have jurisdiction to review “factual determinations” or applications of law to fact. 38 U.S.C. § 7292(c), (d)(2); Conway v. Principi , 353 F.3d 1369, 1372 (Fed. Cir. 2004)

. When the CAVC properly interprets a statute or regulation and the question remaining is

WL 314712, at *2 (citing Hart v. Mansfield , 21 Vet. App. 505, 509 (2007)). R ating reduction procedures do not applyin the assignment of a staged rating if the rating is not reduced to a level below what was in effect befo re the claimant appealed to the Board. Id. at *3 (citing Fenderson v. West , 12 Vet. App. 119, 126 (1999) ; O’Connell v. Nicholson

, 21 Vet. App. 89, 94 (2007) ). Case: 23-2199 Document: 12 Page: 6 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 7

whether the regulation was violated such that the Board committed clear and unmistakable error , that inquiry is “fact

- based” and therefore “beyond [this court’s] jur isdiction.” Glover v. West , 185 F.3d 1328, 1332

– 33 (Fed. Cir. 1999).
The duty to assist, codified as 38 U.S.C. § 5103A, requires that VA “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim fo r a benefit under a law administered by [VA].” 38 U.S.C. § 5103A

. This includes “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim” an d can include a reexaminat ion “if the priorexamination no longer reflects the current state of the condition.” 38 U.S.C. § 5103A(d); Payne v. Wilkie , 31 Vet. App. 373, 390 (2019). To trigger the reexamination duty, however, the claimant “‘must come forward with at least some evi dence that there has in fact been a material change in his or her disability’ since the prior examination.” Payne

, 31 Vet. App. a t 390 (quoting Glover , 185 F.3d at 1333).
O’Connell argues that the Board violated its duty to assist by relying solely and in appropriately on the May 2016 medical documents “to construct a new discrete time period during which [O’Connell’s] condition allegedly improved,”and that even if consideration of these documents was appropriate, it was insufficient to conclude that his “ condition was no longer as ‘severe and frequent’ to justify sustained 60 percent rating.” Appellant’s Br. at 4. He contends that drawing this conclusion was a violation of 38 C.F.R. § 3.327(a), which obligates the Board to conduct reexaminations “if it is likely that a disability has improved, or if evidence indicates a material change in a disability or that the current rating may be incorrect.” Appellant’s Br. at 4

– 5 (quoting 38 C.F.R. § 3.327(a)). O’Connell argues that the May 2016 records were both insufficient and too old for the Board to properly draw its conclusion, and thus that to Case: 23-2199 Document: 12 Page: 7 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 8

fulfill its duty to assist it should have conducted a reexamination of his condition. Appellant’s Br. at 5.
The Secretary argues that the CAVC’s “determination that V A fulfilled its duty to assist is a factual inqui ry” that this court lacks jurisdiction to review, and thus this appeal should be dismissed. Appellee’s Br. at 8

– 9 (citing Garrison v. Nicholson , 494 F.3d 1366, 1370 (Fed. Cir. 2007); Glover

, 185 F.3d at 133 3; Lynch v. McDonough , No. 2021

- 224, 2022 WL 726955, at *3 (Fed. Cir. Mar. 10, 2022); Macak v. McDonald , 598 F. App’x 776, 780 (Fed. Cir. 2015); Flores v. McDonald , 586 F. App’x 595, 596 (Fed. Cir. 2014); Rui zRojas v. Shinseki , 341 F. App’x 619, 620 (Fed. Cir. 2009)). In the alternative, the Secretary argues this court should affirm because the CAVC did not err in finding that VA satisfied its duty to assist. Appellee’s Br. at 10.
We agree with the Secretary that this court does not have jurisdiction over the present case

. O’Connell does not contend that the CAVC incorrectly interpreted any statute or regulation relevant to this appeal ; rather, h is argument is that the Board failed to meet its duty to assist under the facts of the case b ecause it relied on “irrelevant” examinations that took place in the context of psychiatric evaluations

. Appellant’s Br. at 4. O’Connell’s argument is that (1) the Board improperly relied on the May 2016 medical documents that took place during psychiatr ic evaluations 3 ;

3 To the extent that O’Connell argues that it was improper as a matter of law for the Board to look to psychiatric evaluation records as evidence of his physical condition, O’Connell did not proffer any legal support that the use ofevidence pertaining to a physical condition gathered during a psychiatric evaluation is insufficient to evaluate that physical condition under the regulations

. Before the CAVC, a nd before this court, “he [did] not cite any authority for the proposition that the Board may not assign Case: 23-2199 Document: 12 Page: 8 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 9

(2) the “extraordinary content” of those medical records creates reasonable doubt on the scope of the disability, whichmust be decided in O’Connell’s favor; and (3) the Board relied only on those medical records and no other evidence, wh ich was insufficient and too old for the Board to adequately conclude a disability rating of 30% for the period beginning May 12, 2016. Appellant’s Br. at 4

– 5. The context, content, and sufficiency of the medical records from May 2016 a t most constitute an application of law to facts, which is outside of this court’s jurisdiction

. See Delis l e v. McDonald , 789 F.3d 1372 , 13 74 (Fed. Cir. 2015) (whetherspecific symptoms identified by a claimant warrant an increased disability rating is a question of fact); Lynch , 2022 WL 726955, at *2 (whether evidence is material is a finding of fact)

. Further, as noted by the Secretary, determining compliance with section 5103 A is a factual issue. Garrison , 494 F.3d at 1370 (holding that the Board’s compliance with the notice portion of section 5103 A is a factual inquiry); Lynch

, 2022 WL 726955, at *3 (“‘ [The Board’s] compliance with the

probative value to treatment records that were not generated for purposes of evaluating his GERD, nor d [id] he cite any evidence supporting his contentio ns that he was not competent to accurately report his symptoms in May 2016.” CAVC Decision

, 2023 WL 3143712, at *3. Thus, he did not make the argument that it was legally improper to consider this evidence. In fact, CAVC case law suggests that consider ing mental health notes to evaluate a physical disability is not legally erroneous if the regulation or statute does not“explicitly require that a report of examination or hospitalization pertain solely or primarily to the service

- connected disability for which an increased evaluation is being sought.” Johnson v. McDonald , 2015 WL 367652 , at *8 (Vet. App. Jan. 28, 2015). Case: 23-2199 Document: 12 Page: 9 Filed: 02/08/2024O ' CONNELL v. MCDONOUGH 10

[“duty to assist” obligation] is outside our jurisdiction’ because such an inquiry ‘involves factual issues.’”)

. When“there is no claim that the Board was interpreting a statute” and no claim that “the Board [was] establishing a legal rule to be applied to similar fact situations in future cases,”then the Board’s decision is a result of “appl[ying] established law to the facts” and this Court does not have jurisdiction to review the CAVC’s ruling on the Board’s actions. Garrison

, 494 F.3d at 1370

. In this case, O’Connell does not contend that the Board misinterpreted sections 5103A or 3.327(a), nor does he claim the Board established anyerroneous legal rule for future cases. Thus, O’Connell’s appeal is based on the argument that the Board’s decision resulted from a misapplication of established law to the facts of his case, and therefore, falls outside of this cou rt’s jurisdiction.

C ONCLUSION Accordingly, we dismiss O’Connell’s appeal from the judgement of the CAVC.

D ISMISSED

C OSTS

No costs. Case: 23-2199 Document: 12 Page: 10 Filed: 02/08/2024