NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JESUS RODRIGUEZ, JR.,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2022-2081

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 21-665, Judge Michael P. Allen.

______________________ 

Decided: November 9, 2022

______________________ 

JESUS RODRIGUEZ, JR., San Antonio, TX, pro se.

 LIRIDONA SINANI, Commercial Litigation Branch, Civil 

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

BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY. 

______________________ 

Before STOLL, SCHALL, and STARK, Circuit Judges. 

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2 RODRIGUEZ v. MCDONOUGH

PER CURIAM. 

Jesus Rodriguez, Jr. appeals the decision of the United 

States Court of Appeals for Veterans Claims affirming the 

decision of the Board of Veterans’ Appeals denying (1) a request to reopen a previously denied claim for service connection and (2) claims for service connection for various 

other conditions. Rodriguez v. McDonough, No. 21-0665, 

2022 WL 557291 (Vet. App. Feb. 24, 2022). We affirm-inpart and dismiss-in-part. 

BACKGROUND

Mr. Rodriguez served in the United States Marine 

Corps from March 1969 to March 1973 and from February 1981 to February 1984. His awards and decorations for 

service include a Vietnam Cross of Gallantry.

In August 2013, a Regional Office (RO) denied Mr. Rodriguez’s claim for service connection for hemorrhoids. 

Appx. 14.1 Mr. Rodriguez did not appeal, and the decision 

became final. On March 31, 2017, the VA received service 

department records from Mr. Rodriguez’s active service. 

Rodriguez v. McDonough, No. 20-7138, 2021 WL 6143626, 

at *4 (Vet. App. Dec. 30, 2021). In May 2017, Mr. Rodriguez requested that the VA reopen several previously denied claims, including the claim for hemorrhoids. When 

Mr. Rodriguez’s request was denied, he appealed, and in 

September 2020, a Board remanded his claim to the RO for 

a Statement of the Case (SOC). Mr. Rodriguez then appealed from the SOC. 

On appeal, the Board denied Mr. Rodriguez’s request 

to reopen his hemorrhoids claim and denied service connection for his claims of left shoulder disorder, bilateral 

1 Citations to “Appx.” refer to the Appendix attached 

to the appellee’s brief.

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RODRIGUEZ v. MCDONOUGH 3

metatarsalgia with hallux valgus, and psoriasis with plantar warts. Appx. 15. 

For Mr. Rodriguez’s hemorrhoids claim, the Board 

found that some “evidence . . . received since the August 2013 rating decision” was new, but it was “duplicative 

and not material as it does not specifically address the reason the claim was previously denied.” Appx. 18–19 (applying 38 C.F.R. § 3.156(b)). In other words, the Board found 

that the evidence submitted was not “new and material.” 

Appx. 19. Thus, the Board denied reopening this claim. 

Appx. 18–19. The Board also found that “no additional service records (warranting reconsideration of the claim) have 

been received at any time.” Appx. 18 (citing 38 C.F.R. 

§ 3.156(c)). 

The Board also evaluated Mr. Rodriguez’s service connection for left shoulder disorder, bilateral metatarsalgia 

with hallux valgus, and psoriasis with plantar warts. 

Appx. 23–28. For each claim, the Board considered the evidence of record, including a November 2020 report by a VA 

medical examiner, and determined that it was less likely 

than not that Mr. Rodriguez’s disabilities were a result of 

his service. In each instance, the Board found that Mr. Rodriguez’s lay evidence regarding his disabilities was not 

sufficiently probative to outweigh the medical evidence. 

Thus, the Board found that Mr. Rodriguez had not established a nexus between his service and his disabilities. 

The Veterans Court affirmed the Board’s decision, explaining that “the Board’s decision is not clearly wrong, is 

based on a correct understanding of the governing law, and 

is supported by an adequate statement of reasons or bases.” 

Appx. 2. 

Mr. Rodriguez appeals. We have jurisdiction under 

38 U.S.C. § 7292.

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4 RODRIGUEZ v. MCDONOUGH

DISCUSSION

Our jurisdiction over appeals from the Veterans Court 

is statutorily limited. We may only review decisions about

the validity or interpretation of a rule of law, statute, or 

regulation. 38 U.S.C. § 7292(a). Except for a constitutional 

issue, we may not review a factual determination or an application of the law to facts. Id. § 7292(d)(2). We must affirm a Veterans Court decision unless it is “(A) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, 

power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure 

required by law.” 38 U.S.C. § 7292(d)(1). 

On appeal, Mr. Rodriguez raises several arguments: (1) that the Veterans Court improperly interpreted certain statutes and regulations; (2) that the court 

violated its fair process doctrine by improperly conducting

additional discovery2; and (3) that the Board should have 

considered certain evidence submitted after his claims 

were deemed final. In his reply brief, Mr. Rodriguez also 

argues that the Board improperly weighed the lay evidence 

of record and that he was denied due process. We discuss 

each argument in turn.

First, we address Mr. Rodriguez’s argument that the 

Veterans Court improperly interpreted the following 

2 Mr. Rodriguez’s pro se brief quotes, but does not 

provide a citation to Austin v. Brown, 6 Vet. App. 547, 553 

(1994), which discusses the fair process doctrine. Appellant’s Br. 2. His brief also does not refer to the fair process 

doctrine by name, nor provide an explanation for this argument, but we liberally interpret his brief to raise this issue. 

See, e.g., Durr v. Nicholson, 400 F.3d 1375, 1380 (Fed. Cir. 

2005) (“[P]ro se pleadings are to be liberally construed.”). 

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RODRIGUEZ v. MCDONOUGH 5

sources of law: (1) 38 U.S.C. § 7292(a), which relates to our 

jurisdiction to review an interpretation of a statute or regulation by the Veterans Court; (2) 38 U.S.C. § 7104(d)(1), 

which relates to the Board’s requirement to explain all of 

its findings and conclusions; and (3) 38 U.S.C. § 7261(c), 

which prevents the Veterans Court from making findings 

of fact de novo. Appellant’s Br. 1. In his reply brief, Mr. Rodriguez also cites to 38 C.F.R. § 3.156, which relates to 

“submit[ting] new and material evidence” for opening a 

previously denied claim.3 Reply Br. 1–2. Mr. Rodriguez 

appears to argue that because the Veterans Court interpreted these statutes, we have jurisdiction over his appeal.

At the outset, we recognize that the distinction between an interpretation of law and an application of law 

can seem murky. We have explained that “an interpretation of a statute or regulation occurs when its meaning is 

elaborated by the court.” Forshey v. Principi, 284 

F.3d 1335, 1349 (Fed. Cir. 2002) (en banc), superseded by 

statute on other grounds, Pub. L. No. 107-330, § 402(a), 116 

Stat. 2820. 2832 (2002), as recognized in Taylor 

v. McDonough, 3 F.4th 1351, 1363 n.7 (Fed. Cir. 2021). In 

other words, an interpretation requires explaining, usually 

to clarify, what a statute or a regulation means. 

Here, the Veterans Court did not clarify or elaborate on 

the statutes nor the regulation that Mr. Rodriguez cited. 

Indeed, the Veterans Court does not reference 38 U.S.C. 

§ 7292(a) nor § 7104(d)(1). Although the court did cite 

38 C.F.R. § 3.156(a) and discuss the Board’s application of 

that regulation, Appx. 3–5, it did not elaborate on its meaning. Instead, it reviewed the Board’s application of the regulation to the facts of Mr. Rodriguez’s case. Appx. 5. As 

we have explained, we do not have jurisdiction to review 

3 Although Mr. Rodriguez cites to “38 CFR section 

3.165” both this court and the government understand him 

to refer to § 3.156. See Appellee’s Br. 11–12.

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6 RODRIGUEZ v. MCDONOUGH

the application of law to fact. 38 U.S.C. §§ 7292(c), (d)(2); 

see also, Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 

2004). In sum, Mr. Rodriguez’s arguments about the statutes and regulation cited do not raise issues within our jurisdiction. We thus dismiss this portion of Mr. Rodriguez’s 

appeal. 

Second, we address Mr. Rodriguez’s argument related 

to the fair process doctrine. Although he cites cases holding 

that the Veterans Court may not improperly obtain evidence against a veteran, Mr. Rodriguez does not explain

what discovery the Veterans Court improperly engaged in 

or how that affected his case. Appellant’s Br. 2 (citing Hart 

v. Mansfield, 21 Vet. App. 505, 508 (2007) (holding that the 

VA may not procure evidence with the purpose of finding 

evidence against the veteran); Mariano v. Principi, 17 Vet. 

App. 305, 312 (2003) (same)). As such, we discern no legal 

error in the Veterans Court’s decision. 

We now turn to Mr. Rodriguez’s argument that the 

Board erred by not considering certain evidence he submitted after his claims were deemed final. Appellant’s Br. 2. 

Whether evidence submitted is “new and material” under 

§ 3.156(a)—and thus whether a veteran’s claim must be reopened—is a question of fact over which we lack jurisdiction. Livingston v. Derwinski, 959 F.2d 224, 225–26 

(Fed. Cir. 1992). Whether the Board properly reconsidered 

a claim under § 3.156(c) following receipt of service department records, is also a question of fact over which we lack 

jurisdiction. See 38 U.S.C. § 7292(d)(2).

Here, the Board found that the evidence submitted by 

Mr. Rodriguez was either cumulative to previously submitted evidence (i.e., was not new) or was not material. 

Appx. 18–19. Accordingly, the Board did not reopen 

Mr. Rodriguez’s claims for benefits. The Board also stated 

that “no additional service records (warranting reconsideration of the claim) have been received at any time,” and 

cited to § 3.156(c). Appx. 18. 

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RODRIGUEZ v. MCDONOUGH 7

To the extent Mr. Rodriguez now appeals those factual 

findings, we do not have jurisdiction to review that argument. See 38 U.S.C. § 7292(d)(2); Livingston, 959 F.3d at 

226 (dismissing appeal challenging Board’s finding that 

new and material evidence had not been submitted). We 

thus dismiss this portion of Mr. Rodriguez’s appeal. 

Further, Mr. Rodriguez also appears to argue that, by 

not considering this evidence, the Board violated the First 

Amendment, deprived him of meaningful access to the 

courts, and committed fraud. Appellant’s Br. 2; see Reply 

Br. 3–4; see also United Transp. Union v. State Bar of 

Mich., 401 U.S. 576, 585 (1971) (“[M]eaningful access to the 

courts is a fundamental right within the protection of the 

First Amendment.”). Regarding these alleged constitutional violations and allegations of fraud, Mr. Rodriguez’s 

briefing provides no further detail or support. As we have 

explained, appellants waive any arguments that they do 

not adequately develop. See Rodriguez v. Dep’t of Veterans 

Affairs, 8 F.4th 1290, 1305 (Fed. Cir. 2021). Because 

Mr. Rodriguez has “merely alluded to” these arguments 

and has “not developed” them, id., we dismiss this portion 

of Mr. Rodriguez’s appeal as waived.4 

4 Mr. Rodriguez makes two further arguments for 

the first time in his reply brief: that the Board did not assign the appropriate weight to the lay evidence of record 

and that he was denied due process because the Veterans 

Court did not adequately explain its decision. Reply Br. at 

2–3. Because Mr. Rodriguez raises both of these arguments for the first time in his reply brief, he has waived 

them. See Becton Dickinson & Co. v. C.R. Bard, Inc., 922 

F.2d 792, 800 (Fed. Cir. 1990) (“[A]n issue not raised by an 

appellant in its opening brief . . . is waived.”).

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8 RODRIGUEZ v. MCDONOUGH

CONCLUSION

For the reasons above, we discern no legal error with 

respect to the fair process doctrine and no other issue for 

which we have jurisdiction to review. Thus, we affirm-inpart and dismiss-in-part.

AFFIRMED-IN-PART, DISMISSED-IN-PART

COSTS

No costs.

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