NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

SHIRLEY GAY,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2021-1226

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-2089, Senior Judge Robert N. 

Davis, Judge Joseph L. Falvey, Jr., Judge William S. 

Greenberg.

______________________

Decided: October 25, 2021

______________________

ROBERT C. BROWN, JR., Tommy Klepper & Associates, 

PLLC, Norman, OK, argued for claimant-appellant.

 BORISLAV KUSHNIR, 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 MARIE HOSFORD; JULIE HONAN, Y. KEN LEE, 

Case: 21-1226 Document: 45 Page: 1 Filed: 10/25/2021
2 GAY v. MCDONOUGH

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC.

______________________

Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.

TARANTO, Circuit Judge.

After completing two periods of service in the Navy, Alvin G. Gay sought benefits from the Department of Veterans Affairs (VA) for an ear condition and hearing loss. Mr. 

Gay pursued his claim until his death in 2011, at which

point his surviving spouse, Shirley Gay, was substituted as 

claimant. The relevant VA regional office (RO) most recently denied the requested benefits in 2018, and the Board 

of Veterans’ Appeals affirmed that denial in 2019. When 

Mrs. Gay appealed the Board’s decision to the Court of Appeals for Veterans Claims (Veterans Court), that court affirmed the Board’s denial in a single-judge disposition. Gay 

v. Wilkie, No. 19-2089, 2020 WL 3088864 (Vet. App. June 

11, 2020). Mrs. Gay moved for reconsideration or, in the 

alternative, for a three-judge panel decision, contending 

that a recent Supreme Court decision not involving veterans benefits, Department of Homeland Security v. Regents 

of the University of California, 140 S. Ct. 1891 (2020) (Regents), required reassessment of a legal principle applied 

by the Veterans Court in its single-judge disposition. The 

Veterans Court denied reconsideration but made the single-judge decision a three-judge panel decision of the court.

Mrs. Gay now appeals to us. Our jurisdiction is limited 

to the legal question presented and does not extend to any 

fact issue in this matter. See 38 U.S.C. § 7292. We affirm.

I

Mr. Gay first joined the Navy during World War II, in

March 1945. During this first period of service, Mr. Gay 

was diagnosed with acute “catarrhal fever”—a then-used 

term for a group of respiratory tract diseases that includes 

Case: 21-1226 Document: 45 Page: 2 Filed: 10/25/2021
GAY v. MCDONOUGH 3

the common cold, influenza, and lobular and lobar pneumonia—and deemed to have “[u]sual symptoms” and to require “[r]outine treatment.” J.A. 27; J.A. 51; Gay, 2020 WL 

3088864, at *3 n.38 (quoting STEDMAN’S MED. DICTIONARY

659 (27th ed. 2000)). Mr. Gay was honorably discharged in 

August 1946, and, after his discharge, he was treated for a 

right ear condition in 1949, potentially due to a fungal infection and/or scarlet fever. J.A. 53–54; J.A. 56–57 (also 

stating that Mr. Gay reported that his “[r]ight ear has been 

draining off and on all his life”).

Mr. Gay rejoined the Navy in November 1950 and

served during the Korean War. At the time he sought to 

reenlist, Mr. Gay underwent a reentry examination that 

revealed a small perforation in the right tympanic membrane, as well as evidence of chronic otitis media, but the 

Navy granted him a waiver that allowed him to engage in 

active service. J.A. 23–25; J.A. 55. During this second period of service, Mr. Gay was treated for otitis in both ears. 

J.A. 58. He was honorably discharged in June 1952.

A few months later, in October 1952, Mr. Gay filed his 

first claim based on an allegedly service-connected right 

ear condition, which he stated began in 1949 and was aggravated during his 1950–52 service. J.A. 59–67. The relevant RO denied the claim. It found that, although Mr. 

Gay may have experienced an acute flare-up of his pre1950 ear condition during his 1950–52 service, there was 

no aggravation of the condition noted at his 1952 discharge.

J.A. 68–70; J.A. 70 (“It is not considered that veteran’s disability of otitis media was incurred in or aggravated by service and service connection is not considered warranted.”).

In the ensuing decades, Mr. Gay’s ear troubles continued. In 1965, he had a mastoidectomy to remove a cholesteatoma in his right ear. J.A. 259; J.A. 279. By 1989, 

he was diagnosed with moderate-to-severe sensorineural 

hearing loss in his right ear and moderate high-frequency 

Case: 21-1226 Document: 45 Page: 3 Filed: 10/25/2021
4 GAY v. MCDONOUGH

sensorineural hearing loss in his left ear. J.A. 237; J.A. 

294; see also J.A. 93–96.

In 1996, Mr. Gay asked VA to reopen his claim for disability compensation, stating that his disability was caused 

by right ear fungus beginning in 1945, but VA declined to 

reopen. J.A. 71–74; J.A. 76–77. VA denied two similar requests the next year. J.A. 78–81. In 2008, Mr. Gay filed a 

new claim for bilateral hearing loss, chronic otitis media, 

and tinnitus, citing exposure to loud noise as a service-related cause, which the RO again denied. J.A. 82–88. Mr. 

Gay filed several requests for reconsideration, as well as a 

notice of disagreement, before passing away on June 19, 

2011. J.A. 92–115.

In 2012, VA formally substituted Mr. Gay’s widow, 

Shirley Gay, as the claimant. J.A. 189–92. Mrs. Gay continued to pursue the claim, and in 2013 she and two daughters testified before the Board to the effect that an 

unknown VA physician informed the family in 2009 or 2010 

that Mr. Gay contracted a South Seas fungus in his right 

ear during his first period of service. J.A. 198–219. The

Board then obtained an additional medical opinion, but 

based on that opinion, the Board denied Mrs. Gay’s claims. 

J.A. 220–27; J.A. 229–45.1

Mrs. Gay appealed. In August 2016, the Veterans 

Court, identifying multiple errors related to the Board’s 

treatment of the South Seas fungus testimony, remanded 

back to the Board. Gay v. McDonald, No. 15-0638, 2016 

WL 4438111, at *1–2 (Vet. App. Aug. 23, 2016). In July 

2017, the Board in turn remanded to the RO, J.A. 251–58, 

requiring the RO to obtain a new medical opinion addressing, among other things, the question: “if [Mr. Gay’s] right 

1 By that point, Mrs. Gay had withdrawn the claim 

for disability benefits for service-connected tinnitus. J.A. 

233.

Case: 21-1226 Document: 45 Page: 4 Filed: 10/25/2021
GAY v. MCDONOUGH 5

ear hearing loss was due to chronic right otitis media, was 

[his] right otitis due to an infection contracted during the 

first period of service [1945–46]?” J.A. 257. The RO obtained the required medical opinion but again denied the 

claim, determining that Mr. Gay’s chronic right otitis media and hearing loss were likely caused by a preexisting 

cholesteatoma (rather than the reverse) and that the cholesteatoma was not aggravated during service. J.A. 271–

273; J.A. 278–80. The Board affirmed. J.A. 291–300.

Mrs. Gay appealed to the Veterans Court, arguing that 

(1) the Board had not complied with the August 2016 Veterans Court and the July 2017 Board remand orders and 

(2) the Board’s decision was arbitrary and capricious for 

failing to address whether Mr. Gay’s documented case of 

catarrhal fever during his 1945–46 service could have contributed to his ear condition. Gay, 2020 WL 3088864, at 

*1, *3. The Veterans Court, in a single-judge disposition, 

rejected both arguments. First, the Veterans Court determined that the Board had substantially complied with the 

remand orders. Id. at *1–3. Second, and what is now at 

issue in the present appeal, the Veterans Court determined

that the Board was not required to address whether catarrhal fever caused Mr. Gay’s ear condition. Id. at *3–4.

In determining that the Board was not required to investigate the catarrhal-fever-causation issue, which Mrs. 

Gay had not raised to the Board, the Veterans Court relied 

on Robinson v. Peake, 21 Vet. App. 545 (2008) (Robinson I), 

and this court’s affirmance of that decision in Robinson v. 

Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Robinson II). In

Robinson I, a veteran receiving disability compensation for 

a peptic ulcer sought benefits for heart disease and a hyperthyroid condition as allegedly secondary to the ulcer. 

21 Vet. App. at 548. When the Board denied the claims, 

Robinson appealed to the Veterans Court, arguing that the 

Board also had an obligation to consider whether his heart 

disease and hyperthyroid conditions were directly connected to his service (i.e., not just eligible as secondary 

Case: 21-1226 Document: 45 Page: 5 Filed: 10/25/2021
6 GAY v. MCDONOUGH

claims to his peptic ulcer). Id. The Veterans Court determined that the Board was not required to address this argument, reasoning that (a) “the Board is required to 

consider all issues raised either by the claimant . . . or by 

the evidence of record” but (b) the Board is not required “to 

assume the impossible task of inventing and rejecting 

every conceivable argument.” Id. at 552–53 (citations omitted). We affirmed, stating that (a) “the VA is obligated to 

determine all potential claims raised by the evidence” 

where the claimant has asserted service connection of an 

allegedly disabling condition but (b) “[w]here a fully developed record is presented to the Board with no evidentiary 

support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.” 

Robinson II, 557 F.3d at 1361 (citations omitted); see also 

id. (“[C]laims which have no support in the record need not 

be considered by the Board.”). The determination of 

whether the record raises an issue, we added, is a determination of “a factual matter” that is “beyond our jurisdiction 

to review.” Id. at 1362.

In this case, the Veterans Court, applying the Robinson 

standard,2 determined that “[w]hile the evidence suggests 

that Mr. Gay suffered from catarrhal fever . . . [n]either 

Mrs. Gay’s arguments, nor the record, demonstrated a relationship between Mr. Gay’s fever and his ear condition.” 

Gay, 2020 WL 3088864, at *4. On that basis, the Veterans 

Court held that “the Board did not err in failing to investigate this theory that was not appropriately raised.” Id. 

Mrs. Gay moved for reconsideration or, in the alternative, for a three-judge panel decision, contending that the 

Supreme Court’s decision in Regents—handed down a week 

after the single-judge Veterans Court disposition—

2 Mrs. Gay has not identified a material substantive 

difference between the formulations set forth in Robinson 

I and Robinson II, so we refer to the Robinson “standard.”

Case: 21-1226 Document: 45 Page: 6 Filed: 10/25/2021
GAY v. MCDONOUGH 7

justified reconsideration of whether the Board was required to consider the catarrhal-fever issue. Motion for Reconsideration, or in the Alternative, for a Panel Decision, 

Gay v. Wilkie, No. 19-2089 (Vet. App. June 21, 2020). The 

Veterans Court denied the motion for single-judge reconsideration and granted the motion for a panel decision but 

ordered that the single-judge decision remain the decision 

of the court. J.A. 9–10. Accordingly, the Veterans Court 

entered judgment against Mrs. Gay on October 7, 2020. 

J.A. 1. Mrs. Gay timely appealed.

II

A

Mrs. Gay argues that the Veterans Court erred in adhering to the Robinson standard after the recent Supreme 

Court decision in Regents. Under 38 U.S.C. § 7292(a), this 

court has jurisdiction to address Mrs. Gay’s contention that 

Regents requires a departure from the Robinson standard, 

a contention that presents a question of law. Moreover, en 

banc review is not needed for us to address that question: 

A panel may depart from a previous panel’s decision if the 

departure is required by an intervening Supreme Court decision. See Deckers Corp. v. United States, 752 F.3d 949, 

964 (Fed. Cir. 2014); Doe v. United States, 372 F.3d 1347, 

1354–55 (Fed. Cir. 2004); Tex. Am. Oil Corp. v. U.S. Dep’t

of Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en banc). 

We decide the legal issue de novo. Bazalo v. West, 150 F.3d 

1380, 1382 (Fed. Cir. 1998); Prenzler v. Derwinski, 928 

F.2d 392, 393 (Fed. Cir. 1991).

In Regents, the Supreme Court reviewed the Department of Homeland Security’s (DHS) decision to end the Deferred Action for Childhood Arrivals immigration program 

(DACA)—which involved both a grant of certain work and 

other benefits to covered persons and a decision to forbear 

from instituting removal proceedings under the immigration laws. 140 S. Ct. at 1901. DHS made the termination 

decision based on a letter from the Attorney General 

Case: 21-1226 Document: 45 Page: 7 Filed: 10/25/2021
8 GAY v. MCDONOUGH

stating that the benefits portion of DACA was likely unlawful. Id. at 1903. The Supreme Court, while rejecting 

several other challenges to the termination decision, held 

that DHS’s decision was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA), 5 U.S.C. 

§ 706(2)(A). Id. at 1913–15. The Court so ruled because 

DHS failed to consider “important aspect[s] of the problem,” namely: (1) DHS failed to recognize that DACA involved two distinct policies (benefits and forbearance), only 

one of which had been deemed unlawful, so DHS erred in 

not considering the feasibility of retaining one (forbearance) while terminating the other (benefits); and (2) DHS 

failed to address the reliance interests of DACA beneficiaries, interests that DHS had to consider in reversing the 

prior policy because it was not “writing on a blank slate.” 

Id. at 1910–15 (quoting Motor Vehicle Mfrs. Ass’n of the 

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)).

Those holdings do not support a departure from the

Robinson standard. First, the “important aspect of the 

problem” principle, taken by Regents directly from State 

Farm, is old and predates the Robinson cases. See State 

Farm, 463 U.S. at 43. Second, Regents applied the State 

Farm principle to a specific context quite different from the 

context (exemplified here) to which the Robinson standard 

applies. Whereas Robinson (like this case) involved a 

claim-specific adjudication, Regents involved a change of a 

prior general agency policy—and, specifically, a misunderstanding of the nature of the policy being changed and a 

failure to consider the reliance interests on that policy.3 

3 See State v. Biden, 10 F.4th 538, 553–55 (5th Cir. 

2021) (discussing Regents in policy-change context); MediNatura, Inc. v. FDA, 998 F.3d 931, 941–43 (D.C. Cir. 2021) 

(same); Nat’l Urban League v. Ross, 977 F.3d 770, 778 (9th 

Cir. 2020) (same).

Case: 21-1226 Document: 45 Page: 8 Filed: 10/25/2021
GAY v. MCDONOUGH 9

Third, and in any event, nothing in Regents requires an 

agency adjudicating a claimant’s assertion of entitlement 

to benefits to do more than Robinson requires, which is to 

address any theory of relief raised either by the claimant 

or by the evidence. Regents does not imply that the Board, 

if it fulfills that Robinson duty, has failed to address “important aspect[s] of the problem.” Regents, 140 S. Ct. at 

1910 (quoting State Farm, 463 U.S. at 43). Indeed, in its 

own context, Regents notes that the duty to consider issues 

has limits, stating that agencies are “not required . . . ‘to 

consider all policy alternatives in reaching . . . decision[s].’” 

Id. at 1914–15 (quoting State Farm, 463 U.S. at 51).

For the foregoing reasons, we conclude that Regents 

does not require us to depart from the Robinson standard—

even apart from the fact that judicial review here does not 

take place under the APA, which governed in Regents. We 

need not and do not rely on that fact here. Regents is an 

application of the APA’s “arbitrary, capricious” standard of 

review, 5 U.S.C. § 706(2)(A), and this case is governed by 

38 U.S.C. § 7261(a)(3)(A), which uses the same “arbitrary,

capricious” language. Not surprisingly, we have used APA 

jurisprudence in applying the Title 38 provision. See 

Euzebio v. McDonough, 989 F.3d 1305, 1322–23 (Fed. Cir. 

2021) (“The Veterans Court must also review Board and 

VA determinations for ‘abuse of discretion’ and ‘arbitrary 

[and] capricious’ decision making, including whether the 

Board or VA[] entirely failed to consider an important aspect of the problem . . . .” (quoting 38 U.S.C. § 7261(a)(3)(A)

and State Farm, 463 U.S. at 43)); see also Henderson ex rel. 

Henderson v. Shinseki, 562 U.S. 428, 432 n.2 (2011) (“[T]he 

Veterans Court’s scope of review, § 7261, is similar to that 

of an Article III court reviewing agency action under the 

[APA] . . . .”). Whether an agency has failed to address an 

important aspect of a problem, and is arbitrary and capricious for that reason, can turn on the specific statutes and 

regulations that govern the agency, see Oregon Natural Resources Council v. Thomas, 92 F.3d 792, 798 (9th Cir. 

Case: 21-1226 Document: 45 Page: 9 Filed: 10/25/2021
10 GAY v. MCDONOUGH

1996), but that does not distinguish 38 U.S.C. § 7261 from 

5 U.S.C. § 706. Regardless, we see no basis for concluding 

that Regents unsettles the Robinson standard. We therefore must reject Mrs. Gay’s principal argument here.

B

Mrs. Gay contends that (1) even under the Robinson 

standard, the record did in fact provide sufficient evidence 

to trigger the Board’s duty to address the catarrhal-fever 

issue and (2) the August 2016 Veterans Court and the July 

2017 Board remand orders were not substantially complied 

with. See Appellant’s Br. 11–14. But those contentions 

challenge factual determinations or applications of law to

fact that we do not have jurisdiction to review. 38 U.S.C. 

§ 7292(d)(2); see Robinson II, 557 F.3d at 1362; Prinkey v. 

Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013); Dyment v. 

Principi, 287 F.3d 1377, 1381 (Fed. Cir. 2002); Smith v. 

Shinseki, 422 F. App’x 888, 890 (Fed. Cir. 2011). Mrs. Gay 

also contends that the Veterans Court’s failure to address 

Regents when denying reconsideration was error, Appellant’s Br. 10–11, but we read the Veterans Court’s silence 

on the point as implicitly rejecting the contention that Regents requires a departure from the Robinson standard. As 

we have explained above, we agree with that rejection.

III

For the foregoing reasons, we affirm the decision of the 

Veterans Court.

The parties shall bear their own costs.

AFFIRMED

Case: 21-1226 Document: 45 Page: 10 Filed: 10/25/2021