United States Court of Appeals 

for the Federal Circuit ______________________ 

ORVILLE K. THOMAS,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2022-1504

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-4192, Judge Joseph L. Falvey, 

Jr.

______________________ 

Decided: March 27, 2024

______________________ 

CHRIS ATTIG, Attig Curran Steel PLLC, Little Rock, 

AR, argued for claimant-appellant. Also represented by 

HALEY SMITH. 

 IGOR HELMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent-appellee. Also represented by 

BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY; JULIE HONAN, Y. KEN LEE, DEREK SCADDEN, 

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC. 

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2 THOMAS v. MCDONOUGH

 ______________________ 

Before LOURIE, REYNA, and CUNNINGHAM, Circuit Judges.

REYNA, Circuit Judge.

Mr. Orville Thomas appeals a decision of the U.S. 

Court of Appeals for Veterans Claims. The Veterans Court 

affirmed the Board of Veterans’ Appeals’ denial of an earlier effective date for Mr. Thomas’ claim of service connection for post-traumatic stress disorder. Because the 

Veterans Court applied an improper legal standard when 

reviewing the Board’s decision, we vacate and remand.

BACKGROUND

Mr. Thomas served in the U.S. Navy from 1957 to 1964. 

J.A. 1–2. In January 1961, he was an airman on a plane 

that crashed on Midway Island, killing nine people. J.A. 2. 

Of the six passengers who were seated in the plane’s midsection, Mr. Thomas was the sole survivor. J.A. 2. Three 

years later in 1964, Mr. Thomas was honorably discharged

as unsuitable for service after being diagnosed with an 

emotionally unstable personality. J.A. 211, 275. 

In January 1971, he submitted a claim to the U.S. Department of Veterans Affairs (“VA”) for service connection 

for his “depressive mania.” J.A. 277. He expressed to the 

VA that, after surviving the plane crash, he was experiencing ongoing emotional distress and had attempted suicide. 

J.A. 277. The VA regional office obtained Mr. Thomas’ 

medical records, which showed that he had been treated for 

emotional problems and was subsequently discharged. 

J.A. 204–75. Based on solely the medical records, the VA

denied service connection and concluded that an emotionally unstable personality was not a disability under the 

law. J.A. 203. In reaching this decision, the VA did not 

consider Mr. Thomas’ service department records. Mr. 

Thomas did not appeal this decision.

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THOMAS v. MCDONOUGH 3

On June 16, 2014, Mr. Thomas filed a request to reopen 

his 1971 claim. J.A. 163–202, 116–50. This time, he submitted service department records that were not before the 

VA in 1971. J.A. 169–202, 116–50. These service department records include, inter alia, information about the 

1961 plane crash, the changes in Mr. Thomas’ personality 

before and after the crash, and evaluations of Mr. Thomas’ 

performance in service. E.g., J.A. 116–50, 169–91. 

In November 2014, the VA granted Mr. Thomas service 

connection for post-traumatic stress disorder (“PTSD”), 

with an effective date of June 16, 2014. J.A. 106–12. The 

VA based its decision on a review of the evidence, which 

included (1) the service department records Mr. Thomas 

submitted in June 2014 and (2) the VA’s PTSD examination of Mr. Thomas, which diagnosed him with the disorder. J.A. 113–14. 

Mr. Thomas filed a timely Notice of Disagreement, 

seeking an earlier effective date. J.A. 104–05. The VA issued a Statement of the Case which, while increasing the 

disability rating for his PTSD, continued to deny an effective date earlier than June 2014. J.A. 71–99. The VA 

acknowledged that Mr. Thomas had submitted his service 

department records, and that he had argued that under 38 

C.F.R. § 3.156(c), those records showed entitlement to an 

earlier effective date.1 J.A. 4, 99. 

1 Under 38 C.F.R. § 3.156(c)(1), if the “VA receives or 

associates with the claims file relevant official service department records that existed and had not been associated 

with the claims file when VA first decided the claim, VA 

will reconsider the claim.” Additionally, “[a]n award made 

based all or in part” on these service department records 

“is effective on the date entitlement arose or the date VA 

received the previously decided claim, whichever is later.” 

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4 THOMAS v. MCDONOUGH

The VA found that the service department records

would not have changed the 1971 denial of service connection because they did not counter the determination that 

Mr. Thomas’ in-service psychiatric problems were due to 

an “emotionally unstable personality,” which was not considered a disability for VA compensation purposes. J.A. 99. 

The VA also concluded that the service department records

“were not a factor in the grant of benefits at this time.” J.A. 

99.

Mr. Thomas appealed to the Board of Veterans’ Appeals (“Board”). J.A. 68–69. The Board agreed with the 

VA’s denial of an earlier effective date for the grant of service connection for PTSD. J.A. 54–67. The Board found no 

evidence of an unadjudicated claim for service connection 

for PTSD between the March 1971 rating decision and 

June 2014 that might justify an earlier effective date. 

J.A. 58–59. The Board decision did not address Section 

3.156(c) or Mr. Thomas’ newly added service department 

records. J.A. 54–67. Mr. Thomas appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims 

(“Veterans Court”). 

Before the Veterans Court, Mr. Thomas argued that 

the Board violated its statutory duty under 38 U.S.C. 

§ 7104(d)(1) to provide a written statement of its findings, 

and its reasons and bases for those findings, concerning “all 

material issues of fact and law presented on the record.” 

J.A. 49 (citing 38 U.S.C. § 7104(d)(1)). According to Mr. 

Thomas, this statutory duty required the Board to consider 

38 U.S.C. § 3.156(c)(3). “In other words, § 3.156(c) serves 

to place a veteran in the position he would have been had 

the VA considered the relevant service department record 

before the disposition of his earlier claim.” Blubaugh v. 

McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). 

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THOMAS v. MCDONOUGH 5

his arguments concerning Section 3.156(c), which applied 

to the facts of his case. Mr. Thomas also argued this statutory duty required the Board to consider his service department records, which had existed at the time of the VA’s 

original denial in 1971 but had not yet been associated with 

his claims file. Mr. Thomas noted that these service department records served as a partial basis for his eventual 

grant of PTSD in November 2014. Finally, Mr. Thomas argued that the Board’s errors prejudiced him. According to 

Mr. Thomas, had the Board properly considered that his 

service department records that were not associated with 

his claims file until 2014, the Board likely would not have 

concluded that “June 16, 2014, is the earliest possible effective date for the grant of service connection for PTSD.” 

J.A. 52 (quoting J.A. 59). 

The Veterans Court affirmed the Board’s decision. The 

Veterans Court determined that the Board did not err in 

failing to discuss Section 3.156(c)(1) because this regulation only applies to “relevant” service records. The Veterans Court noted that Mr. Thomas “offer[ed] no argument 

that his service records were in any way relevant” to the 

VA’s denial of his 1971 claim. For this reason, the VA concluded that Mr. Thomas had not shown that the Board 

committed prejudicial error in failing to discuss Section 

3.156(c)(1). 

The Veterans Court also determined that the Board did 

not err in failing to discuss Mr. Thomas’ service department records. The Veterans Court explained that “Mr. 

Thomas has neither shown nor argued that the service department records . . . were ‘favorable’ evidence and that 

the Board was thus required to discuss them.” J.A. 5. 

Mr. Thomas appeals. We have jurisdiction under 38 

U.S.C. § 7292(c). 

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6 THOMAS v. MCDONOUGH

STANDARD OF REVIEW

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. Gazelle v. Shulkin, 868 F.3d 

1006, 1009 (Fed. Cir. 2017). This court may review legal 

questions, including the validity of any statute or regulation or any interpretation thereof. 38 U.S.C. § 7292(c). 

This court may not, however, review factual determinations or application of law to fact, except to the extent an 

appeal presents a constitutional issue. Id. § 7292(d)(2). 

DISCUSSION

Mr. Thomas argues that the Veterans Court erroneously applied a more stringent legal standard than what is 

required under 38 U.S.C. § 7104. Section 7104(d) governs 

the Board’s statutory duty to consider “applicable” regulations and provide a written statement on “all material issues of fact and law.” Specifically, Mr. Thomas argues that 

the Veterans Court improperly read into this provision a 

new and limiting requirement—that the Board need only 

address “favorable” or “relevant” evidence in its written decision. We agree with Mr. Thomas and thus vacate the Veterans Court’s decision and remand. 

When deciding a veteran’s appeal, the Board’s decision 

“shall include” a “written statement of the Board’s findings 

and conclusions, and the reasons or bases for those findings 

and conclusions, on all material issues of fact and law presented on the record.” 38 U.S.C § 7104(d) (emphasis 

added). At the Veterans Court, this provision means that 

the Board must address in its written statement all regulations that are “made potentially applicable through the 

assertions and issues raised in the record.” Schafrath v. 

Derwinski, 1 Vet. App. 589, 593 (1991). We see no reason 

to depart from the Veterans Court’s “potentially applicable” standard, which supports 38 U.S.C § 7104(d)’s goal of 

providing veterans with a fulsome and clear decision of 

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THOMAS v. MCDONOUGH 7

their claims.2 In doing so, we are not eliminating or even 

modifying the Veterans Court’s obligation to place the burden of proof for showing prejudicial error on appeal on the 

appellant, as the Veterans Court here correctly did. See

J.A. 4–5; 38 U.S.C. § 7261(b)(2).

Here, Mr. Thomas undisputedly raised Section 3.156(c) 

and his service department records before the Board. The 

Board did not address these two points in its decision. The 

Veterans Court recognized the Board’s duty under 

38 U.S.C. § 7104 to provide a written determination with 

adequate reasons or bases for its determination. The Veterans Court also recognized that this duty requires the 

Board to “address all regulations made potentially applicable by assertions and issues raised in the record.” J.A. 4.

The Veterans Court, however, excused the Board’s silence 

because Mr. Thomas did not allegedly argue the “relevance” of Section 3.156(c) or his service department records 

in his briefing on appeal. J.A. 4. The Veterans Court also 

faulted Mr. Thomas for failing to show how his service department records were “favorable” evidence. J.A. 5. These 

2 Section 7104(d)(1) was “designed to promote the development of a record of the agency proceedings that would 

permit a reviewing court to understand and evaluate the 

proceedings as part of its review.” S. Rep. No. 100–418, at 

37–38 (1988). The Board’s required statement of reasons 

or bases would assist veterans to “understand the Board’s

response to the various arguments advanced by the [veteran],” and use this understanding “to make an informed 

decision on whether or not to request court review.” Id. at 

38. “[B]are conclusory statement[s]” in Board decisions 

would cut against the purpose of Section 7104(d)(1). Jennings v. Mansfield, 509 F.3d 1362, 1366 (Fed. Cir. 2007)

(quoting Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990)). 

 

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8 THOMAS v. MCDONOUGH

statements indicate that the Veterans Court erroneously 

applied a standard considerably more stringent than required under 38 U.S.C. § 7104. As explained above, Section 7104 requires the Board to consider all “potentially 

applicable” regulations raised in the record, not merely 

those that the veteran has shown to be relevant or favorable in his briefing before the Board. 

The government argues that we lack jurisdiction over 

this appeal because the Veterans Court’s decision was 

merely a “[s]traightforward [a]pplication [o]f Kisor II” to 

the facts of Mr. Thomas’ appeal. Appellee Br. 14. The government’s argument is unavailing. In Kisor II, this court 

interpreted the meaning of a “relevant” service department 

record under 38 C.F.R. § 3.156(c). Kisor v. McDonough, 995 

F.3d 1316, 1322 (Fed. Cir. 2021). As discussed supra, Section 3.156(c) provides that the VA may reconsider a previously decided claim and retroactively set an earlier 

effective date when “relevant” service department records 

are associated with the claims file. Here, the Board never 

made a finding of fact as to the relevancy of Mr. Thomas’

service department records to his denied 1971 claim, as required under Section 3.156(c) and Kisor II. Because the 

Board has not made this factual determination in the first 

instance, the Veterans Court is statutorily prohibited from 

doing so. 38 U.S.C. § 7261(c); Deloach v. Shinseki, 704 F.3d 

1370, 1380 (Fed. Cir. 2013). Thus, contrary to the government’s position, the Veterans Court’s decision cannot be 

characterized as an application of Kisor II to Mr. Thomas’

case.

On remand, the Veterans Court is instructed to remand the case to the Board to provide an adequate written 

statement of its reasons and bases concerning Mr. Thomas’ 

claim for an earlier effective date for his PTSD. The Board 

must consider Mr. Thomas’ arguments concerning Section 

3.156(c) and his service department records under the appropriate legal standard contained in 38 U.S.C. § 7104(d). 

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THOMAS v. MCDONOUGH 9

CONCLUSION

We have considered the government’s remaining arguments and find them unpersuasive. We vacate the decision 

of the Veterans Court and remand for further action consistent with this decision. 

VACATED AND REMANDED

COSTS

Costs to Mr. Thomas. 

Case: 22-1504 Document: 54 Page: 9 Filed: 03/27/2024