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

______________________ 

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant. 

 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., PATRICIA M.

MCCARTHY; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office 

of General Counsel, United States Department of Veterans 

Affairs, Washington, DC. 

 ______________________ 

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

Before STOLL, SCHALL, and CUNNINGHAM, Circuit Judges.

STOLL, 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 unemployability (TDIU). 

Because the Veterans Court correctly interpreted

§ 3.156(b), we affirm the Veterans Court’s decision. 

BACKGROUND

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 herbicides. J.A. 17–26. The VA eventually 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 connection for

CAD in 2010, upon special review of his case as mandated 

by Nehmer v. United States Department of Veterans Affairs, 494 F.3d 846 (9th Cir. 2007). There, the Ninth Circuit upheld an interpretation of a consent decree which 

requires 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 referenced herbicide exposure. J.A. 68, 70. 

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PICKETT v. MCDONOUGH 3

Mr. Pickett appealed, seeking a higher rating for his 

service-connected CAD. J.A. 73–74. Within 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 (boxes 6, 12–14). 

Relevant here are two subsequent RO decisions 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 notes that “[e]ntitlement to individual unemployability,” 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 performing sedentary employment tasks and 

light physical employment and your PTSD examiner states 

that you are in full remission and you appear to have little 

functional impairment.’” J.A. 95. The VA explained to 

Mr. Pickett in a notice letter that his claim for TDIU was 

denied “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. 99. The 

VA also notified Mr. Pickett that he had 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 it 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). This 

2014 decision explains that Mr. Pickett’s TDIU claim “was 

denied 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 proposes decreasing Mr. Pickett’s PTSD rating. J.A. 101. Mr. Pickett only challenged the proposed 

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4 PICKETT v. MCDONOUGH

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 unemployed due to service-connected CAD 

and PTSD. J.A. 157–65. Following additional VA examinations, the RO awarded Mr. Pickett TDIU due solely to

PTSD and increased his ratings 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

argued that under the correct application of 38 C.F.R. 

§ 3.156(b), he was entitled to “an extraschedular total rating,” which could include TDIU, effective from June 2007 

(the date last worked) through January 2017, based on his 

service-connected CAD. J.A. 111–15. 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 could not reach back to that claim 

stream to seek TDIU before 2017. Mr. Pickett appealed to 

the Board 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. Pickett to seek entitlement 

to TDIU prior to January 2017. That is, Mr. Pickett’s entitlement to TDIU prior to January 2017 rested 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). 

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PICKETT v. MCDONOUGH 5

The Veterans Court affirmed the Board’s decision. 

First, the Veterans Court agreed with Mr. Pickett that the 

Board erred in characterizing the issue on appeal as an earlier effective date for an increased CAD rating, rather 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 in 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 decision 

on 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 new 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. Pickett’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.

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6 PICKETT v. MCDONOUGH

Mr. Pickett appeals. We have jurisdiction under 

38 U.S.C. § 7292(c).

DISCUSSION

This appeal hinges on the interpretation of 38 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 TDIU 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 was pending at the beginning of the appeal 

period. While the VA must comply with the regulation, 

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PICKETT v. MCDONOUGH 7

nothing 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. He 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) if 

the 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 nor the inclusion of 

“magic words.” 

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 under § 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 

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8 PICKETT v. MCDONOUGH

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 . . . submission contained new and material evidence relating 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” than 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, in 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 1404. 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, we rejected the government’s invitation to presume that the VA considered the veteran’s submission

because there was “no indication that the VA made its required determination under § 3.156(b).” Id. at 1406–07. 

Notably, we explained that “such a general presumption 

applies where the record before the VA is complete and 

there is no statutory or regulatory obligation that would be 

thwarted by application of the presumption.” Id. at 1406. 

But we 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 asks us to indulge a presumption that the 

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PICKETT 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 determine 

whether 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). While 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, the VA’s obligation under § 3.156(b) is 

mandatory, but our 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) 

was the same as ours. See Pickett, 2021 WL 2669688, at *5 

(“[T]he RO issued a rating decision in Mr. Pickett’s case 

that directly responded to his submission during the relevant appeal period, essentially treated that submission as 

new and material evidence, and considered that evidence 

in conjunction with the then-pending claim.”). Accordingly, 

because the Veterans Court did not err in its interpretation 

of what § 3.156(b) requires, we affirm the Veterans Court’s

decision. 

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10 PICKETT v. MCDONOUGH

CONCLUSION

For the reasons above, we hold that the VA may fulfill 

its mandatory obligation under § 3.156(b) implicitly. For 

sure, 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 invoke 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

COSTS

No costs.

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