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

______________________ DAVID L. PICKETT,

Claimant

- Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2022

- 1057

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 20

- 196, Chief Judge Margaret C. Bartley.

______________________

Decided: April 6, 2023

______________________

K ENNETH M. C ARPENTER , Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant

- appellant.

A SHLEY A KERS , Commercial Litigation Branch, CivilDivision, United States Department of Justice, Washington, DC, argued for respondent

- appellee. Also represented by B RIAN M. B OYNTON , M ARTIN F. H OCKEY , J R ., P ATRICIA M. M C C ARTHY ; C HRISTOPHER O. A DELOYE , Y. K EN L EE , Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

______________________ Case: 22-1057 Document: 38 Page: 1 Filed: 04/06/2023PICKETT v. MCDONOUGH 2

Before S TOLL , S CHALL , and C UNNINGHAM , Circuit Judges

. S TOLL , Circuit Judge

. David L. Pickett appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court)

, which concluded that the Department of Veterans Affairs’ (VA) regional office (RO) complied with the requirements of 38 C.F.R. § 3.156(b). As a result, Mr. Pickett’s failure to timely appeal certain RO decisions finalized a then

- pending claim

. The finalized claim could not thereafter provide a basis for an earlier entitlement to total disability rating based on individual u n employability (TDIU). Because the Veterans Court correctly interpreted § 3.156(b), we affir m the Veterans C ourt’s decision

. B ACKGROUND

Mr. Pickett served in the United States Army from September 1969 to September 1971 , including service in Vietnam . In April 2004, he filed a claim with the VA for service

- connected compensation for a general anxiety disorder, which he attributed to exposure to Agent Orange or other herbicide s . J.A. 17

– 26. The VA eventual ly granted Mr. Pickett service

- connected compensation for post

- traumatic stress disorder ( PTSD ) and coronary artery disease (CAD) effective April 2004. J.A. 51 , 68

. The VA first granted Mr. Pickett service connect ion for CAD in 2010, upon special review o f his case as mandated by Nehmer v. United States Dep artment of Veterans Affairs , 494 F.3d 846 (9th Cir. 2007). There, the Ninth Circuit upheld an interpretation of a consent decree which require s the VA to readjudicate claims for newly recognized, presumptively service

- connected conditions associated with herbicide exposure

. Id. at 851, 853

– 54 & n.4. The RO thus granted Mr. Pickett service -connection for CAD effective April 2004, the date his claim first reference d herbicide exposure. J.A. 68 , 70. Case: 22-1057 Document: 38 Page: 2 Filed: 04/06/2023PICKETT v. MCDONOUGH 3

Mr. Pickett appeal ed, seeking a higher rating for his service

- connected CAD. J.A. 73

– 74. W ithin the timeframe to appeal, Mr. Pickett filed VA Form 21

- 8940, which is an application for TDIU

. J.A. 89

– 90. Mr. Pickett’s 2011 VA Form 21

- 8940 lists CAD and PTSD as preventing him from“securing or following any substantially gainful occupation” starting June 30, 2007 , the date he last worked

. J.A. 89 (box es 6 , 12

– 14 ).

Relevant here are two subsequent RO decis ions dated January 2013 and April 2014.
The January 2013 RO decision lists the 2011 VA Form 21

- 8940 as evidence considered. J.A. 91 (fifth bullet point). In an attached sheet, the RO decision note s that “[e]ntitlement to individual un employability ,” understood to mean TDIU, “ is denied” and to “please tell vet, ‘VA exam dated February 3, 2012 states that your CAD does not prevent

you from per forming sedentary employment tasks and light physical employment and your PTSD examiner states that you are in f ull remission and you appear to have little functional impairment. ’ ” J.A. 95. The VA explained to Mr. Pickett in a notice letter t hat his claim for TDIU was denied “because the evidence does not show [ that he is] unable to secure or follow a substantiall y gainful occupation as a result of service

- connected disabilities.” J.A. 99. The VA also notified Mr. Pickett that he ha d a year to appeal. Id. He did not appeal.

The April 2014 RO decision lists the January 2013 RO decision, as well as the evidence i t relied on

— i.e., among other things, the 2011 VA Form 21

- 8940

— as evidence considered in the decision. J.A. 102 (second bullet point). Th is 2014 decision explain s that Mr. Pickett’s TDIU claim “wasdenied because the evidence does not show [that he is] unable to secure or follow a substantially gainful occupation as a result of service

- connected disabilities

. ” J.A. 103. The decision also propose s decreasing Mr. P ickett’s PTSD rating. J.A. 101. Mr. Pickett only challenged the proposed Case: 22-1057 Document: 38 Page: 3 Filed: 04/06/2023PICKETT v. MCDONOUGH 4

reduction to his PTSD rating and did not appeal the denial of his TDIU claim

. Years later, in January 2017, Mr. Pickett filed a supplemental claim and new TDIU application, again indicating that he was unemploy ed due to service

- connected CAD and PTSD. J.A. 157

– 65. Following additional VA examinations, t he RO awarded Mr. Pickett TDIU due solely to PTSD and increased his rating s for CAD and PTSD , all effective January 2017

, the date the VA received the most recent claim. J.A. 104

– 10

. Mr. Pickett filed a notice of disagreement (NOD). He
argu ed that under the correct application of 38 C.F.R. § 3.156(b ), he was entitled to “an extraschedular total rating

, ” which could includ e TDIU

, effective from June 2007 (the date last worked) through January 2017

, based on his service

- connected CAD. J.A. 11 1– 15. The RO disagreed

, finding that the January 2013 and April 2014 RO decisions denied entitlement to TDIU, were not appealed, and thus became final. In other words, that claim stream ended . As a result, Mr. Pickett c ould not reach back to that claim stream to seek TDIU before 2017. Mr. Pickett appealed to the Boa rd of Veterans’ Appeals

. Before the Board, Mr. Pickett argued that

, in assessing his April 2004 claim, the VA did not properly apply § 3.156(b) because it failed to assess whether his 2011 VA Form 21

- 8940 was new and material evidence that supported that claim

. J.A. 139 –41

. This meant , he argued, that his April 2004 claim remained pending

, J.A. 142

, which in turn could allow Mr. Picke tt to seek entitlement to TDIU prior to January 2017

. That is

, Mr. Pickett’s entitlement to TDIU prior to January 2017 rest ed on whether the April 2004 claim remained pending. The Board denied Mr. Pickett an earlier effective date for his service

- connected CAD

, [ J.A. 144

– 49] and he appealed to the Veterans Court. Pickett v. McDonough , No. 20

- 0196, 2021 WL 2669688 (Vet. App. June 30, 2021). Case: 22-1057 Document: 38 Page: 4 Filed: 04/06/2023PICKETT v. MCDONOUGH 5

The Veterans Court affirmed the Board’s decision. First, the Veterans Court agreed with Mr. Pickett that theBoard erred in characterizing the issue on appeal as an earlier effective date for an increased CAD rating , r ather than “an extraschedular total CAD evaluation, including TDIU .” Id. at *4 (emphasis added)

. But the Veterans Court held that the Board’s mistake and subsequent analysis was harmless error because the RO “implicitly made the § 3.156(b) determination and considered the September 2011 VA Form 21

- 8940 in connection with the April 2004 CAD claim.” Id. Specifically, the Veterans Court found that the January 2013 RO decision:
[1] listed the September 2011 VA Form 21

- 8940 among the evidence it considered i n making its decision; [2] addressed entitlement to TDIU due to CAD, an issue that was first raised expressly in that submission; and [3] rendered a TDIU decisionon the merits, explaining that that benefit was denied because a February 2012 VA examination showed that his service

- connected CAD did not preclude substantially gainful sedentary or light physical employment.

Id. (citations omitted). Thus, the Veterans Court determined that the RO “essentially treated [ the 2011 VA Form 21

- 8940 ] as ne w and material evidence, and considered it in connection with the pending CAD evaluation claim.” Id.

The Veterans Court next explained that Mr. Pickett’s failure to perfect an appeal following the January 2013 or the April 2014 RO decision meant that Mr. Picke t t’s April 2004 claim for the maximum CAD evaluation

— including entitlement to TDIU

— became final by 2017, when the VA granted Mr. Pickett TDIU for PTSD and increased ratings for his service

- connected CAD and PTSD. Id. Hence

, because only Mr. Pickett’s new TDIU application remained pending at that time, Mr. Pickett was not entitled to TDIU before 2017. Case: 22-1057 Document: 38 Page: 5 Filed: 04/06/2023PICKETT v. MCDONOUGH 6

Mr. Pickett appeals. We have jurisdiction under 38 U.S.C. § 7292( c ).

D ISCUSSION This appeal hinges on the interpretation of 3 8 C.F.R. § 3.156(b). Specifically, we must determine whether the VA may indicate its compliance with § 3.156(b) implicitly, as the Veterans Court found, or must do so explicitly, as Mr. Pickett argues. If Mr. Pickett is correct

, and the VA failed to make an explicit finding as to whether the 2011 VA Form 21

- 8940 is new and material evidence, then Mr. Pickett contends that this evidence relates to the pending April 2004 claim and thus his April 2004 claim remains pending. As such, Mr. Pickett argues that he could be entitled to TDIU prior to 2017. On the other hand, if Mr. Pickett ’s interpretation of § 3.156(b) is wrong, then the April 2004 claim stream ended when he failed to appeal the January 2013 or April 2014 RO decisions and he is not entitled to TD IU before 2017.

We review the Veterans Court’s interpretation of a regulation de novo. See 38 U.S.C. § 7292(c); Breland

v. McDonough , 22 F.4th 1347, 1350 (Fed. Cir. 2022). We
start our interpretation analysis with the language of the regulation at issue.

Section 3.156(b) provides that:
New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed .

. . ,will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.
The regulation provides that the VA must treat (1) new and material evidence (2) received prior to the end of the appeal period (3) as having been filed in connection with the claim that wa s pending at the beginning of the appeal period. While the VA must comply with the regulation, Case: 22-1057 Document: 38 Page: 6 Filed: 04/06/2023PICKETT v. MCDONOUGH 7

n othing in the text of the regulation states that the VA must expressly state its analysis under this regulation

. Mr. Pickett argues that § 3.156(b) requires more from the VA than “merely act[ing] on” or “addressing ” evidence in a VA decision

. Appellant’s Br. 17; Reply Br. 10. In other words, the VA must do more than list evidence that is new and material and filed before the end of the appeal period as evidence considered in the case. H e argues that an assessment under § 3.156(b) “must be explicitly stated in [a VA] decision.” Appellant’s Br. 16 (emphasis added)

. During oral argument, Mr. Pickett’s counsel stated that “magic words” are necessary to indicate whether the VA made the

proper assessment under § 3.156(b). Oral Arg. at 12:10

– 13:03

, https://oralarguments.cafc.uscourts.gov/default.asp

x ?fl=22

- 1057_02092023 .mp3

. Specifically, in Mr. Pickett’s view, making an appropriate assessment under § 3.156(b) requires the VA to state (i) that it received the evidence; (ii) whether the evidence is new and material; and (iii) ifthe evidence is new and material, whether the evidence relates back to the original claim. Id. We disagree and conclude based on the regulatory text itself that § 3.156(b) does not require an explicit assessment n or the inclusion of “magic word s. ”

Mr. Pickett asserts that our own precedent

— particularly Bond v. Shinseki , 659 F.3d 1362 (Fed. Cir. 2011) and Beraud v. McDonald , 766 F.3d 1402 (Fed. Cir. 2014)

— requires the VA to provide the explicit analysis that he advocates. Appellant’s Br. 16

– 17

. We disagree

. In Bond

, we held that u nder § 3.156(b) “the VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim.” 659 F.3d at 1369. There

, the VA evaluated whether the evidence it received supported a new claim but failed to consider whether it constituted new and material evidence for a pending claim, as § 3.156(b) dictates. See id. at 1367

– 68. Importantly, “nothing in the Case: 22-1057 Document: 38 Page: 7 Filed: 04/06/2023PICKETT v. MCDONOUGH 8

record indicate [d] that the RO or Board” determined whether the evidence submitted was new and material. Id.
at 1368. We explained how, “[a]bsent any indication in the record that this analysis occurred, we decline to presume that the VA considered, but rejected, the possibility that Mr. Bond’s

. . . submissio n contained new and material evidence relat ing to his [pending ] claim.” Id. We also expressed reluctance to assume the VA made “an unstated finding” where, as was true in that case , the submission “would seem to compel the opposite conclusion” tha n what the RO reached. Id. Thus, Bond explains that a determination under § 3.156(b) is mandatory, but it left the door

open for an implicit determination so long as there is some indication in the record that the proper analysis occurred

. Similarly , i n Beraud

, we affirmed Bond and the VA’s obligation under § 3.156(b) to “ provide a determination that is directly responsive to the new submission.” 766 F.3d at 1407. There, the Veterans Court found that a pending claim became final upon the VA’s final denial of an identical claim despite the VA’s failure to analyze the pending claim under § 3.156(b)

. Id. at 140 4 . We reversed, again holding that the VA must make a determination under § 3.156(b) and that a pending claim is not finalized until the VA makes the required § 3.156(b) determination . Relevant here, w e rejected the government’s invitation to presume that the VA considered the veteran’s submissionbecause there was “no indication that the VA made its required determination under § 3.156(b).” Id. at 1406

– 07. Notabl y, we explained that “such a general presumption applies where the record before the VA is complete and there is no statutory or regula tory obligation that would be thwarted by application of the presumption.” Id. at 1406. But w e cautioned against applying a presumption that the VA considered evidence where there is “no firm trace of [the VA’s potential] dereliction in the record .” Id. at 1407. We emphasized that this is especially so in situations where “the government ask s us to indulge a presumption that the Case: 22-1057 Document: 38 Page: 8 Filed: 04/06/2023PICKETT v. MCDONOUGH 9

VA considered records it never obtained.” Id. Thus, Beraud also left the door open for the VA to demonstrate its compliance with the requirements of § 3.156(b ) via an implicit determination so long as that implicit determination is clear on the record. Like Bond

, Beraud requires some indication in the record of a directly responsive decision, but no “magic words .”
Relatedly, in a more recent opinion, we held that under § 3.156(b) the VA “is not required to explicitly determinewhether a submission constitutes ‘new and material evidence’ where

. . . the conditions underlying the two claims have no apparent connection

. ” Gudinas v. McDonough

, 54 F.4th 716, 721 (Fed. Cir. 2022). W hile Gudinas concerned different circumstances than those before us

, our holding here is consistent : Section 3.156(b) does not require the VA to invoke any “ magic words. ”

In other words

, th e VA’s obligation under § 3.156(b) is mandatory

, but o ur case law does not require the VA’s decision to include specific words to fulfill the requirements of § 3.156(b). Instead, consistent with the text of § 3.156(b), Bond and Beraud allow for an implicit finding so long as there is some indication that the VA determined whether the submission is new and material evidence and, if so , considered such evidence in evaluating the pending claim.
Here, the Veterans Court ’s understanding of § 3.156(b)

w as the same as ours. See Pickett , 2021 WL 2669688, at *5 (“[T]he RO issued a rating decision in Mr. Pickett’s casethat directly responded to his submission during the relevant appeal period, essentially treated that submission as new and material evidenc e, and considered that evidence in conjunction with the then

- pending claim.”). Accordingly

, because the Veterans Court did not err in it s interpret ation of what § 3.156(b) requires

, we affirm the Veterans Court’s decision. Case: 22-1057 Document: 38 Page: 9 Filed: 04/06/2023PICKETT v. MCDONOUGH 10

C ONCLUSION

For the reasons above , we hold that the VA may fulfill its mandatory obligation under § 3.156(b) implicit ly . Forsure, there must be some indication that the proper analysis under the regulation occurred, but we hold that § 3.156(b) does not require the VA to in v oke certain “magic words” in its decision.

We have considered Mr. Pickett’s remaining arguments and find them unpersuasive

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

AFFIRMED

C OSTS

No costs. Case: 22-1057 Document: 38 Page: 10 Filed: 04/06/2023