N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ PATRICIA D. STEWART, Claimant

- Appellant

v.

ROBERT A. MCDONALD , SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2014

- 7110

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 12

- 2602, Judge William Gree nberg.

______________________

Decid ed: February 22 , 2016

______________________

A MY F. O DOM , National Veterans Legal Services Pr ogram, Washington, DC, argued for claimant

- appellant. Also represented by B ARTON F. S TICHMAN , P ATRICK A. B ERKSHIRE

.

E LIZABETH A NNE S PECK , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent -appellee. Also represented by B ENJAMIN C. M IZER , R OBERT E.STEWART v. MCDONALD 2

K IRSCHMAN , J R ., A LLISON K IDD -M ILLER ; D AVID J. B ARRANS , B RIAN D. G RIFFIN , Office of General Counsel

, United States Department of Veterans Affairs, Washin gton, DC.

______________________

Before O’M ALLEY , P LAGER , and B RYSON , Circuit Judges.

Opinion for the court filed by Circuit Judge P LAGER

.

Dissenting opinion filed by Circuit Judge B RYSON

. P LAGER , Circuit Judge

. This is a veterans case. Patricia D. Stewart appeals the judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”)

. Stewart sought disability benefits based on service connection for “sto mach problems,” includin g Irritable Bowel Syndro me (“IBS”). T he Department of Veterans Affairs (“VA”) denied benefits. The Board of Veterans ’ Appeals (“Board”) affirmed the denial. The Veterans Court vacated the Board ’s determinations regarding certain aspects of its decision, but left unchanged the Board’s determination that the Board need not adjudicate entitlement to benefits for IBS

. Because this latter determination by the Vete rans Court constituted legal error, we re verse that part of the Veterans Court’s judgme nt

. B ACKGROUND Proceedings Before Veterans Affairs Regional Offices

Stewart served in the Army from January 1988 to November 1994, including service in the Persian Gulf War. In September 2005, Stewart requested service

connected disability benefits for, inter alia, acid reflux and stomach problems

. In June 2006, the VA Regional Office (“RO”) in Muskogee, Oklahoma issued a decision denying service connection for acid reflux and stomach problems. T he RO had “no medical evidence showing thisSTEWART v. MCDONALD 3

condition [(referring jointly to acid reflux and stomach problems)] began in or was made worse during [ Stewart’s ] military service. [ Stewart’s ] service medical records do
not show treatment for this condition.” J.A. 64.
In November 2006, Stewart asked the VA to reconsi der her claim. 1 I n October 2007, the RO reo pened the
matter
, but subsequently confirmed the prior denial of service con nection. The RO stated:
[T] he evi dence continues to sh ow this condition was not incurred in or aggravated by military se rvice. Service medical records are negative showing treatment or diagnosis of acid reflux in service. VA medical records dated March 2007, show a d iagnosis of gastroesophageal reflux disease (GERD) but we have no link to relate this cond ition to service.

J.A. 74.
As part of its decision, the RO listed evidence that i ncluded “[t] reatment records VAMC [(VA Medical Center)]

, Salisbury dated March 2007 to August 2007. ” J.A. 73. One such medical record from May 2007 include d a note of “?IBS.. see pcc for f/u,” presumably indicating possible IBS and that a follow

- up was desirable

. See J.A. 79.

In March 2008

, Stewart submitted a notice of dis agreement (“NOD”) to the October 2007 decision. In July 2008, Stewart asked the VA to reopen her claim and , inter alia, “ add ” IBS. I n July 2008, after Stewart’s request to reopen and in response to her NOD, the VA issued a

1 Stewart argues her request to reconside r should have been construed as a notice of disagreement (“ NOD ”), but she states this court “need not reach this issue as it is not dispositive to the issues currently before the [c]ourt.” Appellant’s Br. at 11, n.1.STEWART v. MCDONALD 4

statement of the case (“SOC”) continuing the denial o f service connection of aci d reflux and stomach problems

. O n August 7, 2008, the Board received Stewart ’s su bstantive ap peal of the RO ’s October 2007 decision. On August 18, 2008, the VA made a “develop note” that “IBS [is] taken as [a] new condition (not part of GERD with stomach problems per Keith Cunningham, RVSR [(rating veterans service representative)] .” J.A. 99. Also on August 18, 2008, the RO in Winston

- Salem, North Carol ina sent Stewart a letter stating that the VA was working on her application for service

- connection for IBS. In February 2009

, the RO in Columbia, South Carolina denied Stewart entitlement to service connection for IBS.

In November 2009, the VA requested a medical exa mination for Stewart and specifically asked for a n “etiology of stomach problems [and] aci d reflux

. ” J.A. 118. In that request, t he VA noted that the case was over one year old based on the NOD

. O n January 14, 2010, Stewart u nderwent a VA medical examination and was diagnosed with IBS.

I n August 2010, the VA received private medical re cords that included a February 2005 treatment record with a physician note that Stewa rt has “what sounds like” IBS. J.A

. 128. Also in August 2010, Stewart requested service

connected disability benefits for, inter alia, IBS. In N ovember 2010, the Winston -Sale m RO informed Stewart that the VA was working on the IBS claim, but that Stewart was previously denied service connection for IBS in the February 2009 decision and the appeal period had expired. The VA informed Stewart that new and material evidence was r e quired for the VA to reopen the claim

. I n March 2011, an RO issued a supplemental SOC continuing to deny service connection for acid reflux and stomach prob lems. The RO listed the following evidence : VA examination , WSOPC dated January 14, 2010; trea tmen t reports from the VA Medical Center in SalisburySTEWART v. MCDONALD 5

dated March 22, 2007 to November 26, 2007; and Presb yterian Healthcare Associates (Charlotte Internal Med icine) dated June 21, 2004 to December 8, 2009.
In May 2011, an RO issued a decision determining that there was no new and material evidence submitted to reopen the previously denied claim for service connection for IBS.
In October 2011, Stewart sought increased compens ation based on unemployability and listed IBS and acid

reflux as service

- connected disabili ties. In February 2012, an RO sent Stewart a letter stating the VA w as working on her claim for IBS, but could take no action on her claims for acid reflux and stomach problems since those issues were on appeal.

Pr oceedings Before the Board

In its May 2012 decision , the Board reopened Ste wart’s claim of entitlement to service connection for acid reflux and stomach problems, but denied service conne ction “for a gastroesophageal disorder, to include GERD as due to an undiagnosed illness.” J.A. 42. Regarding IBS,
t he Board stated : The Board acknowledges that, with respect to the Veteran’s claim for service connection for acid r eflux and stomach symptoms to include as due to an undiagnosed illness, in Clemons v. Shinse ki , 23 Vet. App. 1 (2009), the [ Veterans Court ] held that claims of entitlement to service connection for [ sic ] also encompass claims for service connection for all gastroesophageal disabilities afflicting a Ve teran based on a review of the medical evidenc e. In this case, the record also reflects a diagnosis of GERD and IBS. However, regarding the Veteran’s diagnosed IBS, the Board notes that Veteran submitted a specific claim for IBS in July 2008, which was denied by the RO in a February 2009STEWART v. MCDONALD 6

rating decisi on. The Veteran did not appeal that decision. Accordingly, the claim was [ sic ] been r echaracterized as set forth on the title page of this decision.

The Board also notes that the Veteran submitted claims for service connection for

. . . acid reflux, [and] stomach problems

. . . which were denied by the RO in June 2006. In an October 2007 rating decision the RO adjudicated the above claim based on whether new and material evidence had been received to reopen the previously denied claims for service connectio n. The Board notes that a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under 38 U.S.C.A. § 7104(b). Boggs v. Peake , 520 F.3d 1330, 1336 (Fed. Cir. 2008).

J.A . 22

– 23. The title page of the Board’s decision —referenced above

— lists several “issues” including “[w]hether new and material evidence has been received to reopen a claim of entitlement to service connection for ‘stomach problems’ and acid reflux” and “[e]ntit lement to service connection for gastroesophagial disorder to include gastroesophageal reflux disease (GERD) as due to an undiagnosed illness.” J.A. 21.

The Board further stated:
The competent evidence indicates, however, that the Veteran’ s stomach symptoms have been a ttributed to irritable bowel syndrome (IBS). Speci fically, at her January 2010 VA examination, when describing her stomach symptoms, the Veteran reported having frequent stools, bowel urgency, severe cramping, excessive flatulence, and bloa ting. In relation to these reported symptoms, theSTEWART v. MCDONALD 7

VA examiner provided a diagnosis of IBS. Add itionally, the January 2010 VA examiner a ddressed the Veteran ’ s symptoms associated with her complaints of acid reflux, including nausea, regurgitation, infre quent heartburn, and infr equent indigestion. Th e examiner concluded that these symptoms were attributed to a diagnosis of GERD. As such, both the Veteran’ s reported stomach symptoms and acid reflux have been a ttributed to know [n] clinical diagnoses of IBS and GERD, respectively, which are not related to her active service. As noted above, in July 2008, Ve teran submitted a separate claim for IBS, which was denied in a February 2009 rating decision. The Veteran did not appeal that decision. Ther efore, the evi dence shows that the Veteran’ s GERD or associated stomach symptoms are not due to an undiagnosed illness because her complaints have been attributed to known clinical diagnosis.

J.A. 35.
Stewart appealed the Board’s decision to the Veterans Court. The cou rt issued a decision, but withdrew that decision after granting Stewart’s motion for reconsider ation. The court then issued a new deci sion and found “no error in the Board’s treatment of the issue of IBS.” J.A. 5. The court vacated the portion of the Board’s decision denying entitlement to benefits based on service conne ction for acid reflux and stomach problems and remanded the matters on appeal for development and readjudic ation. This was because, inter alia, t he court found that the Board failed to provide an adequate statement of

reasons or bases for its denial of service connection for acid reflux and stomach problems

. Regarding IBS, t he court stated:
The appel lant’ s claim for “ [IBS] due to en viro nmental hazards in the Gulf War” was adjudicatedSTEWART v. MCDONALD 8

in a February 2009 rating decision that denied e ntitlement to benefits based on service connection because no clinical diagnosis of IBS had been made and no nexus between IBS and service had been established. R. at 376. VA was permit ted to adjudicate the matter of service connection for IBS separately from the appell ant’ s original

“ stomach problems ” claim. See Tyrues v. Shinseki

, 23 Vet. App. 166, 177

– 78 (2009) (en banc) (VA may bifurcate a claim and adjudicate it in sep arate pieces). To the extent that some of the appe llant’ s stomach symptoms –“ frequent stools, bowel urgency, severe cramping, excessive flatu lence, and bloating” (R. at 17)

– were diagnosed as IBS by the January 2010 VA examiner, the Board did not err in rech arac terizing the “ stomach prob lems” claim to exclude those symptoms and encompass only the previously unadjudicated symptoms a ttributed to GERD by the exa miner (R. at 363). The examiner’ s clinical diagnosis of IBS may be relevant evidence sufficient to reo pen the appe llant’ s separate IBS claim, in light of the RO ’ s fin ding in February 2009 that the pertinent medical records “ offer[] no clinical diagnosis of [IBS] nor do these records relate [the] condition to your a ctive military service.” R. at 376; see 38 U.S.C. § 5108. However, in the Board decision at issue here, the Board was not required to readjudicate entitlement based on the IBS

- specific stomach symptoms that were addressed in a separate, u nappealed RO decision.

J.A. 5

– 6.
Stewart appealed to this co urt. We have jurisdiction pursuant to 38 U.S.C. § 7292

.STEWART v. MCDONALD 9

D ISCUSSION

1. Our review of Veterans Court decisions is limited by
statute. See 38 U.S.C. § 7292. We possess “exclusive jurisdiction to review and decide any challenge to the validity of any statut e or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” Id. § 7292(c). We must decide all relevant questions of law and hold unlawful and set asid e regul ations or interpretations thereof

— besides factual determ inations

— that were relied upon in the Veterans Court decision and are “(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, author ity, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” I d. § 7292(d)(1). We may not review a challenge to a factual determination, or to a law or regulation as applied to the facts

— unless a constitutional issue is presented. Id. § 7292(d)(2). We review Veterans Court decisions regar ding issues of law without deference. Ellington v. Peake

, 541 F.3d 1364, 1368 (Fed. Cir. 2008).

2.

Unlike our usual non

- precedential opinions, issued primarily for the benefit of the parties and in which the facts are only briefly stated, w e have set forth the history of the case at length because it is necessary to an unde rstandin g of the outcome. The above description of this veteran’s travails through the VA process

— a description which for the sake of readability nevertheless leaves out much detail

— well illustrates the problems a veteran faces when trying to navigate the complex of rules and proc edures that exist. Here the veteran in the course of ma king a claim for benefits and seeking to have it adjudicatedSTEWART v. MCDONALD 10

fairly had pieces of it deal t with by three different regio nal offices

— Muskogee, O .K. , Winston

- Salem, N.C., and Columbia, S.C. Each RO proceeded to address the specific question they understood was before them, and each made various rulings, often accompanied with letters to the effect that other matters were still under consider ation.

After the VA concluded its review of the v e teran’s claim , and having denied benefits, the matter was reviewed by the Board , which reopened the claim at issue but declined to adjudicate benefits for IBS . Later, on review before the Veterans Court, that court vacated and remanded the determinations of the Board except as to the IBS issue; the veteran now has appealed that issue to

us. For purposes of focusing on the essence of the problem presented, the following discussion highlights only the facts salient to our determination:

The veteran he re made a broadly

- stated claim in 2005 for disability benefits for “stomach problems” and acid reflux. After going through the RO review processes and eventually having been denied benefits, she timely filed in 2008 the requisite NOD. L ater that year , af ter further processing by the VA, the matter landed in the lap of the Board. However, in the meantime, between the time the NOD was filed and the time the Board undertook the appeal, the veteran, on whose advice we do not know, requested that her claim be reopened and that IBS

— a specific type of “stomach problem”

— be added.
Despite various pieces of evidence about a possible IBS condition, and indeed despite a subsequent diagnosis by the VA itself confirming the presence of IBS, the Board refused to conside r the IBS issue. The Board treated the veteran’s earlier attempt to highlight the IBS issue as a new claim, and in its decision stated that her failure to appeal that issue precluded a recovery for IBS. WithSTEWART v. MCDONALD 11

respect to this, th e Veterans Court approved o f the Board approach , stating that “the Board was not required to readjudicate entitlement based on the IBS

- specific sto mach symptoms that were addressed in a separate, una ppealed RO decision.” J.A. 6.

3.
Now on appeal to us we have been offered a variety of legal issues to consider, including what was actually adjudicated, the doctrine of implicit denial, whether the two claims are actually the same claim

, and whether they can be bifurcated by the Agency. But at bottom, the case comes down to th is: did the veteran’s initial claim, e ncompassing “stomach problems,” include the possible problem of IBS as well as other such medical problems, like the oft

- mentioned GERD ? If so, following the first denial of benefits regarding which the veteran filed the requisite NOD, a second NOD addressed to IBS would not be necessary, and the Board erred in not addressing that part of the veteran’s original claim.
The parties agree that the exact scope of the original claim is a q uestion of fact, and as such we cannot sep arately adjudicate that question. To decide this case we need not challenge that view. We can, however, based on the record and the findings of the adjudicators below, determine whether their treatment of the IBS question as they understood it was proper and in accordance with law

. With regard to the scope of the original claim, t he re cord indicates that the Board ’s general understanding was that “stomach problems” properly understood in the context of this clai m included all typical medical problems related to that broad description, which would includ e IBS. “As such, both the Veteran ’ s reported stomach symptoms and acid reflux have been attributed to know[n] clinical diagnoses of IBS and GERD, respectively

. . . . ” J.A. 35.STEWART v. MCDONALD 12

From the evidence in the record, and from the plain meaning of the original claim, it would seem logical to have understood the claim as encompass ing typical sto mach disorders that result from stress, and especially the stresses accompanyin g military service in a war zone . As such, it would presumably includ e IBS. Indeed, t he Board’s decision, citing the Clemons case, notes that a claim for acid reflux and stomach problems “also enco mpass[es] claims for service connection for all gastroeso p hageal disabilities afflicting a Veteran based on review of the medical evidence. In this case, the record also reflects a di a gnosis of GERD and IBS.” See J. A . 22

– 23, quoted in full above. The Veterans Court did not disturb this determination.
Furthermore, the evidence indicates that the vete ran’ s stomach symptoms could have been attributable to IBS. Specifically, at her January 2010 VA examination, when describing her stomach symptoms, the veteran reported having frequent stools, bowel urgency, severe cramping, excessive flatulence, and bloating. In relation to these reported symptoms, the VA examiner provided a diagnosis of IBS. Had the VA given the veteran the benefit of the doubt in that connection, as it is required to do by law, this long drawn out dispute over these service benefits would have been addressed and disposed of years

ago.
Th e attempt by the veteran to add the term “IBS” to the already existing claim was perhaps ill

- advised, and led to the Board’s erroneous ruling that a prop er appeal, which would include a second NOD

, was necessary

. In some circumstances, multiple NODs may be necessary in the context of a single claim. 2 However, if the 2005 claim

2 See, e.g.

, Barrera v. Grober , 122 F .3d 1030, 1032 (Fed. Cir. 1997); Grantham v. Brown , 114 F.3d 1156,STEWART v. MCDONALD 13

is fairly read to include IBS, and we agree with the Board that it should be s o read, we have not discovered

— and the parties do not suggest

— any case in which we held that a veteran must file a second NOD addressing service co nnection for the same claim already addressed by a prior NOD.
Accordingly, w e reverse that part of the judgme nt of the Veterans Court that , on remand to the Board, a pproved of the Board’s erroneous decision to exclude fu rther consideration of IBS

. The veteran did not have to file a second NOD addressing IBS because she had already filed a prior NOD addressing her claim, which included possible IBS. We affirm the other portions of the jud gment of the Veterans Court.

The matter is remanded to th e Veterans C ourt with instructions to return the case to the VA for further adjudication consistent with this opinion. T he VA is to be instructed to waive , wherever necessary , any waivable procedural bars to complete adjudication of the original claim; to permit the veteran to supplement the record as deemed necessary with regard to the IBS issue and any other matters within the contemplation of the original claim; and to expedite its processing of the case.

REVERSED

- IN

- PART , AFFIRMED

- IN

- PART, AND REMANDED.

1158

– 59 (Fed. Cir. 1997); Hamilton v. Brown , 39 F.3d 1574 (Fed. Cir. 1994).N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ PATRICIA D. STEWART, Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2014

- 7110

______________________

B RYSON , Circuit Judge , dissenting

. I respectfully dissent

. The majority predicates its ruling in this case on its conclusion that Ms. Stewart’s 2005 claim included a claim for irritable bowel syndrome (“IBS”) and that the Board of Veterans’ Appeals interpreted the 2005 claim in th e same

manner

. I do not agree that the Board made clear that it regarded IBS as being w ithin the scope of Ms. Stewart’s 2005 claim

. How the Board interpreted the 2005 claim is critical to deciding whether the Board and the Veterans Court were correct in holding that Ms. Stewart’s claim of service connection for IBS beca me final in February 2010

. I would therefore remand the case for the Board to dete rmin e whether Ms. Stewart’s 2005 claim raised a claim of service connection for IBS.STEWART v. MCDONALD 2

I

I n September 2005, Ms. Stewart filed a claim for se rvice connection for “ acid reflux ,” “ stomach problems ,” and other unrelated disabilities. A regional office of the Department of Veterans Affairs (“DVA”) denied that claim in June 20 06

. Ms. Stewart sought reconsideration of that denial in November 2006, and the regional office denied her request for reconsid eration in October 2007. She filed

a notice of disagreement in response to that decision in March 2008. 1
At the time of the regional office’s action in October 2007, the only mention of IBS anywhere in the record was a cryptic entry in a May 2007 report o f a DVA Medical Center. As part of a lengthy description of Ms. Stewart’s medical issues, that report included a note reading “?IBS

. . see pcc for f/u.” 2 The regional office’s 2007 dec i-

1 The parties dispute whether the DVA should have treated Ms. Stewart’s November 2006 request for reco nsideration as a notice of disagreement with the June 2006 denial of her September 2005 claim. Under the liberal and sympathetic construction that the DVA is required to give to documents filed by veterans, the request for reco nsideration should have been considered to be a notice of disagreement. That issue, however, does not affect the analysis in this case other than to make it appropriate to refer to the September 2005 claim as the “stomach pro blems” claim that was ultimately placed into appellate status for Board rev iew.

2 A physician’s report from a 2005 office visit r eported that Ms. Stewart “has what sounds like irritable bowel syndrome for many years,” but that report was not part of the record of the 2006 and 2007 regional office decisions. It was included in the record of the February 2009 regional office decision. In the 2009 decision, theSTEWART v. MCDONALD 3

sion did not discuss IBS or include any reference to the “?IBS” note

. Instead, like the earlier 2006 decision, the 2007 decision simply stated, as to Ms. Stewart’s co mplaints of acid reflux and stomach problems, that the evidence showed that her condition was “ not incurred in or aggravated by military service.”

In July 2008

, Ms. Stewart filed a “request to reopen my claim and add PTSD and irritable bowel syndrome.” The DVA regional office internally treated th e claim for IBS as a “new condition (not part of GERD [gastroesoph ageal reflux disease] with stomach problems) .” A fter a request for information regarding the IBS claim, the regional office denied that claim for lack of service conne ction in February 2009 . The regional office advised Ms. Stewart that if she wished to appeal that decision, she would have to file a notice of disagreement within one

year. Ms. Stewart did not file a timely notice of dis agreement in response to that regional office decision.

In August 2010, Ms. Stewart filed a new claim for va rious disabilities, again expressly including IBS. The evidence pertaining to that claim included a January 2010 DVA medical examination that contained a diagn osis of IBS. In May 2011 the regional office denied th e 2010 claim for IBS on procedural grounds. The office determined that the IBS claim had bee n denied in Febr uary 2009 and that th e de nial had become final because Ms . Stewart had failed to file a timely notice of disagre ement following that decision

. The regional office ruled that Ms. Stewart had failed to point to any new and material evidence relating to IBS that would justify reopening the previously denied claim.

regional office noted that report, but said that it offered “no clinical diagnosis” of IBS.STEWART v. MCDONALD 4

In May 2012 , the Board decided Ms. Stewart’s appeal from the 2006 and 2007 regional office decisions. The Board discussed Ms. Stewart’s “stomach symptoms” and acknowledged the 2010 diagnos e s of IBS and GERD, but it concluded that neither condition was related to Ms. Stewart’s active military service. The Board noted that Ms. Stewart had submitted a claim for IBS in July 2008, that the July 2008 claim had been denied in February 200 9, and that the February 2009 denial wa s not sep arately appealed. However, the Board did not state whet her IBS was part of her original 2005 claim.

The Veterans Court remanded the Board’s ruling for further consideration on other issues, but it found “n o error in the Board’s treatment of the issue of IBS.” The
court stated that the DVA “was permitted to adjudicate the matter of service connection for IBS separately from the appellant’s original “stomach problems” claim, and that under the circumstances of this case the Board “ did
not err in recharacterizing the ‘stomach problems’ claim to exclude those symptoms [ of IBS ] and encompass only the previously unadjudicated symptoms attributed to GERD by the examiner.” The court added that the ex a miner’s January 2010 “clinical diagnosis of IBS may be relevant evidence sufficient to reopen the appellant’s IBS claim, in light of the [regional office’s] finding in February 2009 that t he pertinent medi c al records “offer[] no clinical diagnosis of [IBS ].” However, the court concluded that the Board “was not required to readjudicate entitlement based on the IBS

- specific stomach symptoms that were addressed in a separate unappealed [regional office] decision.”

II
At the outset, t he government argues that this case turns on a factual dispute and is therefore outside this court’s jurisdiction under 38 U.S.C. § 7292 (d)(2), whichSTEWART v. MCDONALD 5

bars this court from reviewing “a challenge to a factual determination.” That contention is with out merit.
It is true that questio ns as to the scope of a veteran’s claim and whether the Board or the Veterans Court misinterpreted the scope of the veteran’s claim are factual issue s that are outside the scope of our review. See E llington v. Peake , 541 F.3d 1364, 1371 (Fed. Cir. 2009); Bonner v. Nicholson , 497 F.3d 1323, 1328 (Fed. Cir. 2007). In this case, however, we are not being called upon to decide the factual question of the scope of Ms. Stewart’s September 2005 claim. Instead, we must decide whether the Board committed legal er ror in requiring Ms. Stewart to file a se parate notice of disagreement after her July 2008 request to “reopen [her] claim and add PTSD and irritable bowel syndrome ” was denied.
That legal question turns on whether the Board r egarded Ms. Stewart’s September 2005 claim as raising IBS. If it did, then it was error for the Board to hold that Ms. Stewart was required to file a second notice of dis agreement as to IBS following the denial of her July 2008 claim

. If it did not, then the Board was legally correct to hold that the denial of Ms. Stewart’s IBS claim became final when she failed to file a timely notice of disagre ement in response to the regional office’s February 2009 decision

. Thus, in order to determine whether the Boar d erred, we need to know whether the Board regarded the IBS claim as being with in the scope of Ms. Stewart’s original September 2005 claim. As I read the Board’s opinion, it never made such a finding.

In the majority ’s view, the Board found that Ms. Stewa rt’s September 2005 claim of “stomach problems” include d IBS. The majority points to the Board’s stat ement , in describing the results of the January 2010 DVA medical examination, that “both the Veteran’s reported stomach symptoms and acid reflux have been attributed to know[n] clinical diagnoses of IBS and GERD respe c-STEWART v. MCDONALD 6

tively, which are not related to her active service.” That observation, however, ref ers to the state of the record as of 2010. It cannot fairly be read to constitute a finding that Ms. Stewart’s original 2005 claim of “stomach pro blems” include d a claim for IBS. While the Board stated that a claim for acid reflux and stomach problems “also encompasses claims for service connection for all ga stroesophageal disabilities afflictin g a Veteran

, ” it is by no means clear that the Board meant to include IBS in the category of “gastroesophageal disabilities, ” since th e term “gastroesophageal” generally refer s to conditions affecting the upper, not the lower, portion of the alimentary can al. For that reason, I disagree with the majority that the Board necessarily concluded that the 2005 claim include d IBS.
The Veterans Court’s opinion , which f ound no error in the Board’s disposition of the IBS issue

, was also inco nclusive on this question

. The opinion first not ed that the IBS claim was not adjudicated until the February 2009 regional office decision

, and Ms. Stewart’s condition was not diagnosed as IBS until January 2010 . Th e court then held that the Board did not err in excluding the cl aim of IBS symptoms from its review of the regional office dec ision that was before the Board. The court explained that the Board “was not required to readjudicate entitlement based on the IBS

- specific stomach symptoms that were addressed in a separate, unappealed RO decision.” While the court’s opinion seems to be based on the assumption that Ms. Stewart’s 2005 claim and her 2006 request for reconsideration did not raise IBS , either expressly or implicitly, the court did not say so.

Because it is not clear to me that the Board and the Veterans Court regarded Ms. Stewart’s original 2005 claim as including IBS

, I would remand for a finding on that question. Resolving that factual issue would enable the Board and the Veterans Court to p roperly address the viability of Ms. Stewart’s IBS claim, including whetherSTEWART v. MCDONALD 7

the denial of that claim beca me final when she failed to file a notice of disagreement in response to the February 2009 regional office decision

, and whether, in any event, her IBS claim fails for lack of service connection.