NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT E. ROBINSON,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-1784

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-2296, Senior Judge Robert N. 

Davis.

______________________ 

Decided: February 18, 2022

______________________ 

JOHN D. NILES, Carpenter Chartered, Topeka, KS, argued for claimant-appellant. Also represented by JOHN F.

CAMERON, John F. Cameron, Attorney at Law, Montgomery, AL. 

 ASHLEY AKERS, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented 

by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH 

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2 ROBINSON v. MCDONOUGH

MARIE HOSFORD; CHRISTOPHER O. ADELOYE, BRIAN D.

GRIFFIN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Before TARANTO, HUGHES, and STOLL, Circuit Judges.

HUGHES, Circuit Judge. 

The Board of Veterans’ Appeals granted Robert E. Robinson disability benefits with an effective date of May 2, 

1992. Mr. Robinson appealed the Board’s effective-date determination, and the Court of Appeals for Veterans Claims 

affirmed. Mr. Robinson now appeals to us, arguing that the 

Veterans Court erred by incompletely applying the test for 

determining the law of the case and by applying the wrong 

standard of review in analyzing whether a document constitutes a decision. Because the Veterans Court articulated 

and applied the correct law-of-the-case test and because 

Mr. Robinson forfeited his standard-of-review argument, 

we affirm.

I 

Mr. Robinson served in the Army from February to 

June 1974 and from October to November 1977. He filed a 

claim for disability compensation in December 1974 after 

experiencing shortness of breath, inability to concentrate,

chills, nervousness, dizziness, and blackout spells. The Veterans Affairs regional office issued a rating decision denying Mr. Robinson’s application in July 1975, finding no 

service connection.

Mr. Robinson then requested to reopen his application 

three times: 

First, in August 1979, Mr. Robinson filed a request to 

reopen his December 1974 application—although at that

time Mr. Robinson characterized this request as his “first 

claim for VA compensation.” Appx104. The RO sent a letter 

in response, informing Mr. Robinson that he had 

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ROBINSON v. MCDONOUGH 3

previously applied for benefits in December 1974 and asking if he had additional information to submit. Mr. Robinson responded that he had never filed a claim and asked 

the RO to either provide evidence that he had filed a prior 

claim or to review his request on the merits. The RO then 

forwarded a copy of Mr. Robinson’s December 1974 application to Mr. Robinson. The record contains no further 

communications regarding this request to reopen.

Second, in April 1980, Mr. Robinson filed a request to 

reopen his December 1974 application, indicating that his 

doctor had made new findings about Mr. Robinson’s mental 

health. The RO sent a letter to Mr. Robinson’s doctor, requesting additional information. Mr. Robinson’s doctor responded with an evaluation of Mr. Robinson’s mental 

health. The RO, considering this evidence, determined that 

the evidence did not alter the validity of the RO’s previous 

denial.

Third, in May 1992, Mr. Robinson again filed a request 

to reopen his December 1974 application. The RO denied 

his claim, determining that the evidence received was not 

new or material to establish service connection. Mr. Robinson appealed, and his case went back and forth between 

the Board of Veterans’ Appeals and the Veterans Court for 

several years. Relevant to this appeal, the Board in 1997 

affirmed an RO rating decision that denied Mr. Robinson’s 

third request to reopen for failure to submit new evidence.

The Veterans Court vacated and remanded the 1997 Board 

decision on appeal in light of new precedent from our court.

Finally, in July 2011, the Board granted Mr. Robinson 

service connection for schizophrenia and basic eligibility 

for Dependents’ Educational Assistance. The Board assigned an effective date of May 2, 1992 for both entitlements, corresponding to the date that Mr. Robinson filed 

his third request to reopen. Mr. Robinson disagreed with 

and challenged the Board’s effective-date determination.

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4 ROBINSON v. MCDONOUGH

The Veterans Court affirmed. Mr. Robinson now appeals to 

us.

II

We analyze de novo the Veterans Court’s interpretation of law. Bazalo v. West, 150 F.3d 1380, 1382 (Fed. Cir. 

1998). And we cannot review challenges to factual determinations or applications of law to facts. 38 U.S.C. 

§ 7292(d)(2).

A 

Mr. Robinson first argues that the Veterans Court 

erred in its analysis of the law-of-the-case doctrine because 

the court ignored part of the doctrine. Under the law-ofthe-case doctrine, courts generally refuse to reconsider 

questions of law and fact that have already been decided 

during litigation to “prevent relitigation of issues.” Suel v. 

Sec’y of Health & Hum. Servs., 192 F.3d 981, 984–85 (Fed. 

Cir. 1999); see Means v. Brown, 9 Vet. App. 482, 483 (1996) 

(applying the doctrine to a Board decision). The doctrine 

extends to both explicit findings and “things decided by 

necessary implication.” Smith Int’l, Inc. v. Hughes Tool Co., 

759 F.2d 1572, 1577 (Fed. Cir. 1985) (cleaned up). But the 

law-of-the-case doctrine is not absolute. For example, a 

trial court is free to reexamine findings on remand that are 

“not examined in, relied on, or otherwise necessary to” the 

corresponding appellate decision. Exxon Corp. v. United 

States, 931 F.2d 874, 878 (Fed. Cir. 1991).

The Board, in its 1997 decision, referred to the RO’s 

first rating decision in 1975 as “the last final rating decision denying service connection for a psychiatric disorder.” 

Appx64. Mr. Robinson asserts that this is a fact finding to 

which the Board and the Veterans Court are now bound 

under the law-of-the-case doctrine. If the 1975 rating decision is the “last final” denial of Mr. Robinson’s claim, then, 

by implication, Mr. Robinson’s subsequent requests to reopen were never finally denied and are still pending. The 

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ROBINSON v. MCDONOUGH 5

Board could, under this theory, award Mr. Robinson an effective date as early as August 10, 1979—the date of his 

first request to reopen. See 38 U.S.C. § 5110(a)(1) (“[T]he 

effective date of an award . . . shall not be earlier than the 

date of receipt of application therefor.”); 38 C.F.R. 

§ 3.400(r) (setting the effective date for reopened claims as 

the “[d]ate of receipt of [the] claim”).

The Board and Veterans Court both rejected this argument. The Board determined that the 1997 decision is, “at 

best, ambiguous as to whether the last final denial was in 

1975 or 1980.” Appx25. The Board further determined that 

the Veterans Court, in a 2000 decision on appeal from the 

Board’s 1997 decision, had analyzed an entirely separate 

issue and “did not reach the question of which RO decision 

was the last final rating decision.” Appx25. Because the 

Board in its 1997 decision did not appear to have made the 

alleged factual finding and because—even if the Board did 

so find—the Veterans Court in 2000 did not consider or rely 

on that alleged finding on appeal, the Board concluded that 

the law-of-the-case doctrine does not apply. The Board then 

determined that the last final denial actually occurred in 

May 1980, in response to Mr. Robinson’s second request to 

reopen. Appx25. 

The Veterans Court affirmed the Board’s conclusion, 

discerning no error in the Board’s analysis. The Veterans 

Court articulated the correct law-of-the-case standard, analyzed the facts of the case, determined that “the Court in 

2000 [had] not specifically identif[ied] the last final rating 

decision,” and concluded that “it was not an error for the 

Board to find the last final denial was the May 1980 rating 

decision.” Appx3–4.

Mr. Robinson argues that the Veterans Court erred because it considered only whether the previous decisions

“specifically identif[ied]” or “expressly contemplate[d]” the 

alleged factual finding. Appellant’s Br. 15; Appx4. Mr. Robinson asserts that the law-of-the-case doctrine

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6 ROBINSON v. MCDONOUGH

“comprehends things decided by necessary implication as 

well as those decided explicitly.” Appellant’s Br. 12 (quoting Smith Int’l, 759 F.2d at 1577 (emphasis added)). According to Mr. Robinson, the Veterans Court did not 

“assess[] law of the case in the light of what the Board and 

the Veterans Court actually decided—whether explicitly or 

by necessary implication.” Appellant’s Br. 12. 

We disagree. The Veterans Court articulated the correct standard, recognizing that it is “without power to do 

anything which is contrary to either the letter or spirit of 

the mandate construed in light of the opinion of the court 

deciding the case.” Appx3 (emphasis added) (quoting 

Browder v. Brown, 5 Vet. App. 268, 270 (1993)). And while 

the Veterans Court did discuss what the 1997 Board decision and 2000 Veterans Court decision specifically identified and expressly contemplated, nothing in the Veterans 

Court’s discussion indicates that it limited its analysis to 

those express findings or otherwise impermissibly narrowed the doctrine. In fact, the Veterans Court emphasized 

that the 1997 decision “when read [i]s, at best, ambiguous 

as to whether the last final denial was in 1975 or 1980,” 

indicating that it analyzed the decision holistically. Appx4 

(quoting Appx25). 

To the extent that Mr. Robinson argues to us that the 

1997 decision and subsequent appellate decision explicitly 

or implicitly found that the 1975 rating decision is his last 

final denial, that is an application of law to fact that we 

cannot review. 38 U.S.C. § 7292(d)(2). Therefore, we affirm 

the Veterans Court’s law-of-the-case conclusion.

B 

Mr. Robinson next argues that the Veterans Court applied the wrong standard of review in determining whether 

a letter from the RO constitutes a rating decision.

In August 1979, Mr. Robinson filed his first request to 

reopen his claim for disability benefits. The RO responded 

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ROBINSON v. MCDONOUGH 7

in September 1979, informing Mr. Robinson that he had 

previously filed an application for benefits that had been 

denied, asking Mr. Robinson if he had acquired additional 

evidence, and attaching a Notice of Procedural and Appellate Rights. Mr. Robinson asserts that this RO letter is a 

rating decision. A few days after receiving the RO letter, 

Mr. Robinson responded, stating that he had not previously filed an application and requesting that the Board 

provide evidence that he had filed such an application.

Mr. Robinson asserts that his response constitutes a Notice 

of Disagreement that triggered the Board’s duty to issue a 

statement of the case. See 38 U.S.C. § 4005(d) (1976)1; Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (“Once 

the agency receives a claimant’s NOD, . . . [t]he agency 

must prepare a statement of the case.”). Because the Board 

never issued a statement of the case as it was required to 

do, Mr. Robinson argues that his 1979 request to reopen is 

still pending and that the Board could therefore award him 

an earlier effective date.

The Board disagreed with Mr. Robinson, concluding

that the RO letter is not a decision and that Mr. Robinson’s 

response is not a Notice of Disagreement. Appx23–24. And 

the Veterans Court determined that the Board “did not 

clearly err in finding that the [RO letter] was not a decision.” Appx4. Mr. Robinson alleges that the Veterans Court 

erred in analyzing this issue for clear error rather than de 

novo.2

1 This provision was later renumbered to § 7105. 

Pub. L. No. 102-40, § 402(b)(1), 105 Stat. 187, 238 (1991). 

And has since been amended. Pub. L. No. 115-55, 

§ 2(q)(1)(D), 131 Stat. 1105, 1112 (2017). 2 The Veterans Court has held that “[w]hether a document is an NOD is a question of law for the Court to determine de novo.” Beryle v. Brown, 9 Vet. App. 24, 28 

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8 ROBINSON v. MCDONOUGH

Importantly, Mr. Robinson argued for a clear-error 

standard of review in his briefing before the Veterans 

Court. See Appx155 (“[T]he Board made the clearly erroneous finding that the September 1979 VA document was not 

a decision.” (emphasis added)). We have previously determined that an appellant who “urged upon the Veterans 

Court the very standard that that court applied” forfeits 

any argument on appeal that the Veterans Court “committed reversible error” “when [it] applied that standard.” Logan v. Principi, 71 F. App’x 836, 838–39 (Fed. Cir. 2003); 

see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 

2002) (en banc) (“[T]he fact that the appellant specifically 

urged the legal rule that he now challenges counsels 

against consideration of the issue.”). We accordingly conclude that Mr. Robinson forfeited his argument that the 

Veterans Court should have applied a de novo standard of 

review because Mr. Robinson had advocated for a clear-error standard of review in his briefing to the Veterans Court. 

Therefore, we affirm the Veterans Court’s conclusion that 

the RO letter is not a decision and that Mr. Robinson’s response is not a Notice of Disagreement. 

(1996). But neither Mr. Robinson nor the government cites 

to an opinion that explicitly identifies the standard of review for whether a document is a rating decision. See Oral 

Arg. at 21:48–22:22, https://oralarguments.cafc.uscourts.

gov/default.aspx?fl=21-1784_02072022.mp3 (“I am not 

aware of any case law that specifically identifies criteria or 

a test to make that determination.”). Although both parties 

contend that the standard of review is also de novo, Appellant’s Br. 17; Oral Arg. at 20:37–21:47, we do not need to 

decide what the appropriate standard of review is to reach 

our conclusion, so we leave this issue open.

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ROBINSON v. MCDONOUGH 9

III

For the reasons above, we affirm the Veterans Court’s 

decision.

AFFIRMED

No costs.

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