United States Court of Appeals 

for the Federal Circuit ______________________ 

VINCENT CURTIS CONYERS,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2023-1525

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 17-4423, Judge Coral Wong Pietsch, Judge Grant Jaquith, Judge Joseph L. Toth.

______________________ 

Decided: January 30, 2024

______________________ 

V. C. CONYERS, Uniondale, NY, pro se. 

 MILES JARRAD WRIGHT, Commercial Litigation Branch, 

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

BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.

MCCARTHY; MICHELLE BERNSTEIN, BRIAN D. GRIFFIN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Case: 23-1525 Document: 26 Page: 1 Filed: 01/30/2024
2 CONYERS v. MCDONOUGH

Before MOORE, Chief Judge, REYNA and HUGHES, Circuit 

Judges.

REYNA, Circuit Judge. 

Vincent Curtis Conyers, an army veteran, applied for

employment benefits under the Veteran Readiness and 

Employment program, a program administered by the 

United States Department of Veterans Affairs. After the 

VA denied his application, Mr. Conyers requested an administrative review, which resulted in another decision to 

deny the application. Mr. Conyers then appealed to the 

Board of Veterans’ Appeals, which affirmed the denial decision. Mr. Conyers appealed the Board decision to the 

United States Court of Appeals for Veterans Claims, which 

affirmed the Board. In reaching its decision, the Veterans 

Court rejected Mr. Conyers’ claim that certain documents 

formed part of the administrative record under the doctrine 

of constructive possession. Because the Veterans Court applied an incorrect legal standard in its review of the doctrine of constructive possession, we vacate and remand for 

further proceedings. 

BACKGROUND

The U.S. Department of Veterans Affairs (“VA”) administers the Veteran Readiness and Employment program. See Appx1.1 The Readiness and Employment 

program is designed to provide benefits and services “to 

help veterans integrate themselves into the civilian work 

force.” Id.

In 2013, Mr. Conyers applied for Readiness and Employment program benefits. Appx2. After Mr. Conyers 

1 “Appx” refers to the appendix submitted by Mr. Conyers and “SAppx” refers to the appendix submitted with

the Response Brief filed by the government on behalf of the 

VA. 

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CONYERS v. MCDONOUGH 3

submitted various questionnaires and met with a VA counselor, the VA rejected his claim “because his chosen vocational goal was not feasible.” Appx2–3. Mr. Conyers 

requested administrative review of the VA’s decision to reject his Readiness and Employment program claim. 

Appx3. The VA promptly issued a decision finding that 

Mr. Conyers had not identified a reasonably feasible vocational goal. Id. Mr. Conyers appealed to the Board of Veterans’ Appeals (“Board”). Id. The Board affirmed the VA’s 

decision that Mr. Conyers’ plan for self-employment was 

“not suitable for his circumstances” and thus denied his 

claim. Id. Mr. Conyers appealed the Board’s decision to 

the U.S. Court of Appeals for Veterans Claims (“Veterans 

Court”). See id. 

During the appeal before the Veterans Court, Mr. Conyers made multiple requests, including motions to compel, that certain documents be added to the administrative

record. See, e.g., Appx12–20. In response, the VA served 

Mr. Conyers amended versions of the record and arranged 

for him to review his file. See, e.g., SAppx1–6. Central to 

this appeal, the VA refused to add other documents to the 

record on grounds that the documents had not been before 

the Board or constructively possessed by the Board. See, 

e.g., Appx57–59; SAppx8–11. 

On April 9, 2020, the Veterans Court denied a motion 

to compel the VA to add the additional documents to the 

record, finding Mr. Conyers’ arguments that the documents were constructively possessed by the Board to be 

without merit. Appx61–65 (“April 2020 Order”). In support, the Veterans Court cited its decision in Euzebio v. 

Wilkie, 31 Vet. App. 394 (2019) (“Euzebio I”). Appx64. In 

Euzebio I, the Veterans Court held that for a document to 

be deemed constructively possessed by the Board, the appellant must establish a “direct relationship” between a 

document and the appellant’s claim (before the Board). 

Euzebio I, 31 Vet. App. at 401–02. Citing Euzebio I and 

referring to its “direct relationship” test, the Veterans 

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4 CONYERS v. MCDONOUGH

Court concluded that Mr. Conyers had “not shown how the 

documents are relevant to the issue on appeal or that he is 

prejudiced.” Appx64. Mr. Conyers filed a motion for reconsideration, which the Veterans Court denied. Appx66–67. 

Subsequent to the April 2020 Order, this court decided 

Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021) 

(“Euzebio II”), which was the appeal of Euzebio I. In 

Euzebio II, we concluded that the “direct relationship” 

standard adopted by the Veterans Court in Euzebio I was 

erroneous. Id. at 1321. We held that the correct standard 

for constructive possession is “relevance and reasonableness.” Id. Citing Euzebio II, Mr. Conyers moved the Veterans Court for reconsideration of the April 2020 Order. 

Appx81–87. 

In March 2021, the Veterans Court issued an order 

that denied the motion for reconsideration and noted that 

“any argument that Mr. Conyers has concerning what materials may be considered constructively before the Board 

can be dealt with during the [Veterans] Court’s review of 

the merits of his appeal.” Appx88. 

In August 2022, the Veterans Court issued a singlejudge decision affirming the Board’s rejection of Mr. Conyers’ appeal. Conyers v. McDonough, No. 17-4423, 2022 

WL 3699552, at *1, *4 (Vet. App. Aug. 26, 2022). As to the 

issue of constructive possession, the decision stated the 

completeness of the record had “already been adjudicated 

by the [Veterans] Court’s April 9, 2022, [sic] order wherein 

the [Veterans] Court determined that [the] VA satisfied its 

obligation to provide a complete [record].” Id. at *4. 

In September 2022, Mr. Conyers moved for a panel decision, arguing that the Veterans Court had overlooked this 

court’s decision in Euzebio II. Appx255–56 & n.40. His 

request for a panel decision was granted, but the panel affirmed the single-judge decision without addressing or 

mentioning Euzebio II. Appx7. The panel concluded that 

Mr. Conyers had failed to demonstrate that “the singleCase: 23-1525 Document: 26 Page: 4 Filed: 01/30/2024
CONYERS v. MCDONOUGH 5

judge order overlooked or misunderstood a fact or point of 

law prejudicial to the outcome of the petition” or that “there 

[was] any conflict with precedential decisions of the Court.” 

Id. 

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

STANDARD OF REVIEW

Our jurisdiction to review decisions of the Veterans 

Court is limited. Gazelle v. Shulkin, 868 F.3d 1006, 1009 

(Fed. Cir. 2017). We review de novo challenges to the validity of statutes or regulations, and we interpret constitutional and statutory provisions “to the extent presented 

and necessary to a decision.” 38 U.S.C. § 7292(c); Gazelle, 

868 F.3d at 1009. Whether the Veterans Court applied a 

correct legal standard is a question of law that we review 

on a de novo basis. Euzebio II, 989 F.3d at 1317 (quoting

Sneed v. Shinseki, 737 F.3d 719, 724 (Fed. Cir. 2013)); 

Skaar v. McDonough, 48 F.4th 1323, 1331 (Fed. Cir. 2022). 

We do not have jurisdiction to reweigh factual findings 

reached by the Board, or to reach our own findings of fact

in the first instance. 38 U.S.C. § 7292(d)(2); Deloach v.

Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013). 

DISCUSSION

Mr. Conyers raises two principal issues on appeal, but 

we need only address whether the Veterans Court applied 

the correct legal standard for constructive possession. This 

is a legal question that we review de novo. See Skaar, 48 

F.4th at 1331 (“[W]hether the Veterans Court applied the 

correct legal standard for equitable tolling is a question of 

law we review de novo.”). For the reasons stated below, we 

conclude that the Veterans Court applied an erroneous legal standard. 

Case: 23-1525 Document: 26 Page: 5 Filed: 01/30/2024
6 CONYERS v. MCDONOUGH

The concept of constructive possession arises in many 

legal contexts, including criminal law and property law.2 

In the context of veterans law, the constructive possession 

doctrine generally applies such that “evidence that is 

within the Secretary’s control and could reasonably be expected to be a part of the record before the Secretary and 

the Board[] is constructively part of the administrative record.” Euzebio II, 989 F.3d at 1319 (internal quotations and 

citations omitted); see also Lang v. Wilkie, 971 F.3d 1348, 

1353 (Fed. Cir. 2020); Golz v. Shinseki, 590 F.3d 1317, 1323 

(Fed. Cir. 2010). 

At the time when Mr. Conyers filed before the Veterans 

Court his motion to compel the addition of documents to 

the administrative record, Euzebio II had not issued. The 

Veterans Court applied its holding in Euzebio I and rejected Mr. Conyers’ assertion that the documents were constructively possessed by the VA and Board. Appx64. 

Euzebio I involved a public document that was published while Mr. Euzebio’s case was pending before the 

Board and raised the question of whether the Veterans 

Court should have deemed the document to have been constructively possessed by the Board when it reviewed

Mr. Euzebio’s appeal. Euzebio I, 31 Vet. App. at 402. 

Based on its review of prior Veterans Court opinions, the 

Veterans Court concluded that for a document to be 

2 Generally, constructive possession means “[c]ontrol or dominion over a property without actual possession 

or custody of it.” Possession, Black’s Law Dictionary (11th 

ed. 2019) (see sub-definition on “constructive possession”); 

see also 73 C.J.S. Property § 54 (stating, in the context of 

real property law, that “[c]onstructive possession describes 

the situation in which [a] person who is not in actual physical possession of [the] object can nevertheless be considered in legal possession of the object if it is subject to his or 

her dominion and control”). 

Case: 23-1525 Document: 26 Page: 6 Filed: 01/30/2024
CONYERS v. MCDONOUGH 7

considered part of the record under a theory of constructive 

possession, a veteran must show a “direct relationship” between the document and a claim. Id. at 401. The Veterans 

Court rejected Mr. Euzebio’s request to add the document 

to the administrative record on grounds that he failed to 

demonstrate a direct relationship between the document 

and his claim. Id. at 402. This is essentially the same rationale the Veterans Court expressed in this case in its 

April 2020 Order denying Mr. Conyers’ motion to compel. 

See Appx64. Mr. Euzebio appealed to this court challenging the Veterans Court’s statement of the legal standard 

applicable for constructive possession. 

On appeal, we reviewed the legal standard applied by 

the Veterans Court and held that the direct relationship 

test was “without basis in relevant statute or regulation.” 

Euzebio II, 989 F.3d at 1320. We reasoned that the Veterans Court had improperly imported the “direct relationship” requirement from earlier Veterans Court opinions, 

and that the requirement was otherwise “untethered” from 

applicable legal standards. Id. We held that the correct 

standard for constructive possession is whether the evidence is “relevant and reasonably connected to the veteran’s claim.” Id. at 1321 (internal quotations and citations 

omitted). We noted that requiring a showing of relevance 

and not a direct relationship “makes sense in light of the 

VA’s statutory duty to assist veterans in developing the evidence necessary to substantiate their claims.” Id. (internal quotations and citations omitted). The constructive 

possession doctrine provides a safeguard that ensures all 

record documents reasonably expected to be part of a veteran’s claim are included in the administrative record. Id. 

at 1325–26. 

After Euzebio II was issued, Mr. Conyers repeatedly 

raised the decision to the Veterans Court’s attention. See, 

e.g., Appx117–19, Appx255–56. But the Veterans Court ultimately did not address the issue, failing to even mention 

Euzebio II in any subsequent decisions. For example, in its 

Case: 23-1525 Document: 26 Page: 7 Filed: 01/30/2024
8 CONYERS v. MCDONOUGH

order addressing Mr. Conyers’ request for reconsideration, 

the Veterans Court deferred the issue, stating it would be

“dealt with” in its review of the merits of the appeal. 

Appx88. But the issue was not dealt with in the review of 

the merits. In the single-judge final merits decision, the 

Veterans Court simply asserted that the dispute had already been addressed by the Veterans Court in its April 

2020 Order, an order that predated Euzebio II. See Conyers, 2022 WL 3699552, at *4. Nor did the Veterans Court 

confront the issue in December 2022 when faced with 

Mr. Conyers’ request for panel rehearing, which again 

urged review of Euzebio II. See Appx9; Appx255–56. 

The government argues that the Veterans Court’s reliance on Euzebio I was not legal error because the Veterans 

Court’s April 2020 Order provides that Mr. Conyers had 

failed to show how the documents are “relevant” or that he 

is prejudiced. Appellee Br. 11–12; see also Appx64. According to the government, this reference to “relevant” shows 

that the April 2020 Order was “consistent with” the correct 

legal standard this court later articulated in Euzebio II. 

Appellee Br. 11–12. The government also argues that if 

there was any error, such error was harmless and without 

prejudice. See, e.g., id. at 13. We are not persuaded. 

In the April 2020 Order, the Veterans Court concluded 

that Mr. Conyers “has not shown how the documents are 

relevant to the issue on appeal or that he is prejudiced.” 

Appx64. At a minimum, the government asks us to conflate Euzebio I and Euzebio II by mixing and matching the 

concepts of “relevance” and “direct relationship.” The government overlooks that in Euzebio II, we rejected as “facially incorrect” the argument made by the government 

that “‘direct relationship’ and ‘relevance’ are more or less 

the same standard.” See Euzebio II, 989 F.3d at 1324. 

There is nothing in the April 2020 Order that shows the 

Veterans Court recognized a distinction between the “relevance” and “direct relationship” standards. There is no basis to conclude that the Veterans Court’s pre-Euzebio II 

Case: 23-1525 Document: 26 Page: 8 Filed: 01/30/2024
CONYERS v. MCDONOUGH 9

order applied the standard we later articulated in 

Euzebio II. 

Regarding the government’s assertion that any error 

by the Veterans Court was harmless, we lack jurisdiction 

to apply the facts to the law and thus to assess whether, 

under the correct legal standard, the Board had constructive possession of the requested documents. This is a question for the Veterans Court. Id.; see also 38 U.S.C. 

§ 7292(d)(2). 

We hold that the Veterans Court applied an erroneous 

legal standard for constructive possession. We therefore 

vacate the decision of the Veterans Court and remand with 

instructions that the Veterans Court apply the correct 

standard set forth in Euzebio II in its review of Mr. Conyers’ claim that certain documents be made part of the 

administrative record and considered in the review of his 

appeal of the denial of his application for Readiness and 

Employment program benefits. 

CONCLUSION

We hold that the Veterans Court applied an incorrect 

standard in its constructive possession analysis. We vacate 

the decision of the Veterans Court and remand for the Veterans Court to apply the legal standard that we articulated 

in Euzebio II. Because we vacate and remand, we need not 

reach Mr. Conyers’ other arguments. 

VACATED AND REMANDED

COSTS

Costs to Mr. Conyers. 

Case: 23-1525 Document: 26 Page: 9 Filed: 01/30/2024