NOTE: This disposition is nonprecedential.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 Greenberg.

______________________ 

Decided: February 22, 2016

______________________ 

AMY F. ODOM, National Veterans Legal Services Program, Washington, DC, argued for claimant-appellant. 

Also represented by BARTON F. STICHMAN, PATRICK A.

BERKSHIRE. 

ELIZABETH ANNE SPECK, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for respondent-appellee. 

Also represented by BENJAMIN C. MIZER, ROBERT E.
2 STEWART v. MCDONALD

KIRSCHMAN, JR., ALLISON KIDD-MILLER; DAVID J.

BARRANS, BRIAN D. GRIFFIN, Office of General Counsel, 

United States Department of Veterans Affairs, Washington, DC. 

______________________ 

Before O’MALLEY, PLAGER, and BRYSON, Circuit Judges.

Opinion for the court filed by Circuit Judge PLAGER. 

Dissenting opinion filed by Circuit Judge BRYSON. 

PLAGER, 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 “stomach problems,” including Irritable Bowel Syndrome

(“IBS”). The 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 Veterans Court constituted legal error, we reverse that part of 

the Veterans Court’s judgment. 

BACKGROUND

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 serviceconnected 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. The RO had “no medical evidence showing this 
STEWART 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 reconsider her claim.1 In October 2007, the RO reopened the 

matter, but subsequently confirmed the prior denial of 

service connection. The RO stated:

[T]he evidence continues to show this condition 

was not incurred in or aggravated by military service. Service medical records are negative showing 

treatment or diagnosis of acid reflux in service. 

VA medical records dated March 2007, show a diagnosis of gastroesophageal reflux disease

(GERD) but we have no link to relate this condition to service.

J.A. 74.

As part of its decision, the RO listed evidence that included “[t]reatment records VAMC [(VA Medical Center)], 

Salisbury dated March 2007 to August 2007.” J.A. 73. 

One such medical record from May 2007 included 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 disagreement (“NOD”) to the October 2007 decision. In July 

2008, Stewart asked the VA to reopen her claim and, inter 

alia, “add” IBS. In July 2008, after Stewart’s request to 

reopen and in response to her NOD, the VA issued a 

 

1 Stewart argues her request to reconsider 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.
4 STEWART v. MCDONALD

statement of the case (“SOC”) continuing the denial of 

service connection of acid reflux and stomach problems. 

On August 7, 2008, the Board received Stewart’s substantive appeal 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 Carolina 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 examination for Stewart and specifically asked for an “etiology 

of stomach problems [and] acid reflux.” J.A. 118. In that 

request, the VA noted that the case was over one year old 

based on the NOD. On January 14, 2010, Stewart underwent a VA medical examination and was diagnosed 

with IBS.

In August 2010, the VA received private medical records that included a February 2005 treatment record with 

a physician note that Stewart has “what sounds like” IBS. 

J.A. 128. Also in August 2010, Stewart requested serviceconnected disability benefits for, inter alia, IBS. In November 2010, the Winston-Salem 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 required for the VA to reopen the claim. 

In March 2011, an RO issued a supplemental SOC 

continuing to deny service connection for acid reflux and 

stomach problems. The RO listed the following evidence: 

VA examination, WSOPC dated January 14, 2010; treatment reports from the VA Medical Center in Salisbury 
STEWART v. MCDONALD 5

dated March 22, 2007 to November 26, 2007; and Presbyterian Healthcare Associates (Charlotte Internal Medicine) 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 compensation based on unemployability and listed IBS and acidreflux as service-connected disabilities. In February 

2012, an RO sent Stewart a letter stating the VA was 

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.

Proceedings Before the Board

In its May 2012 decision, the Board reopened Stewart’s claim of entitlement to service connection for acid 

reflux and stomach problems, but denied service connection “for a gastroesophageal disorder, to include GERD as 

due to an undiagnosed illness.” J.A. 42. Regarding IBS, 

the Board stated: 

The Board acknowledges that, with respect to the 

Veteran’s claim for service connection for acid reflux and stomach symptoms to include as due to 

an undiagnosed illness, in Clemons v. Shinseki, 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 Veteran based on a review of the medical evidence. 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 2009 
6 STEWART v. MCDONALD

rating decision. The Veteran did not appeal that 

decision. Accordingly, the claim was [sic] been recharacterized 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 connection. 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]ntitlement 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 attributed to irritable bowel syndrome (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 
STEWART v. MCDONALD 7

VA examiner provided a diagnosis of IBS. Additionally, the January 2010 VA examiner addressed the Veteran’s symptoms associated with 

her complaints of acid reflux, including nausea, 

regurgitation, infrequent heartburn, and infrequent indigestion. The 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 attributed to know[n] clinical diagnoses of IBS and 

GERD, respectively, which are not related to her 

active service. As noted above, in July 2008, Veteran submitted a separate claim for IBS, which 

was denied in a February 2009 rating decision. 

The Veteran did not appeal that decision. Therefore, the evidence 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 court issued a decision, but withdrew that 

decision after granting Stewart’s motion for reconsideration. The court then issued a new decision 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 connection for acid reflux and stomach problems and remanded 

the matters on appeal for development and readjudication. This was because, inter alia, the 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, the court stated:

The appellant’s claim for “[IBS] due to environmental hazards in the Gulf War” was adjudicated 
8 STEWART v. MCDONALD

in a February 2009 rating decision that denied entitlement 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 permitted to 

adjudicate the matter of service connection for 

IBS separately from the appellant’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 separate pieces). To the extent that some of the appellant’s stomach symptoms–“frequent stools, bowel 

urgency, severe cramping, excessive flatulence, 

and bloating” (R. at 17)–were diagnosed as IBS by 

the January 2010 VA examiner, the Board did not 

err in recharacterizing the “stomach problems”

claim to exclude those symptoms and encompass 

only the previously unadjudicated symptoms attributed to GERD by the examiner (R. at 363). 

The examiner’s clinical diagnosis of IBS may be 

relevant evidence sufficient to reopen the appellant’s separate IBS claim, in light of the RO’s finding in February 2009 that the pertinent medical 

records “offer[] no clinical diagnosis of [IBS] nor 

do these records relate [the] condition to your active 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, unappealed RO decision.

J.A. 5–6.

Stewart appealed to this court. We have jurisdiction 

pursuant to 38 U.S.C. § 7292. 
STEWART v. MCDONALD 9

DISCUSSION

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 statute 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 aside regulations or interpretations thereof—besides factual determinations—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, authority, or limitations, or in violation of a statutory right; or 

(D) without observance of procedure required by law.” Id.

§ 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 regarding 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, we have set forth the history 

of the case at length because it is necessary to an understanding 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 procedures that exist. Here the veteran in the course of making a claim for benefits and seeking to have it adjudicated 
10 STEWART v. MCDONALD

fairly had pieces of it dealt with by three different regional 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 consideration. 

After the VA concluded its review of the veteran’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 here 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. Later that year, after 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 consider 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. With 
STEWART v. MCDONALD 11

respect to this, the Veterans Court approved of the Board 

approach, stating 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.” 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 this: did the veteran’s initial claim, encompassing “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 question of fact, and as such we cannot separately 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, the record indicates that the Board’s general understanding was 

that “stomach problems” properly understood in the 

context of this claim included all typical medical problems 

related to that broad description, which would include 

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.
12 STEWART v. MCDONALD

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 encompassing typical stomach disorders that result from stress, and especially the 

stresses accompanying military service in a war zone. As 

such, it would presumably include IBS. Indeed, the 

Board’s decision, citing the Clemons case, notes that a 

claim for acid reflux and stomach problems “also encompass[es] claims for service connection for all gastroesophageal disabilities afflicting a Veteran based on review of 

the medical evidence. In this case, the record also reflects 

a diagnosis 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 veteran’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. 

The 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 proper 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 so 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 connection for the same claim already addressed by a prior 

NOD.

Accordingly, we reverse that part of the judgment of 

the Veterans Court that, on remand to the Board, approved of the Board’s erroneous decision to exclude further 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 judgment of the Veterans Court.

The matter is remanded to the Veterans Court with 

instructions to return the case to the VA for further 

adjudication consistent with this opinion. The 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).
NOTE: 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

______________________ 

BRYSON, 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 the same 

manner. I do not agree that the Board made clear that it 

regarded IBS as being within 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 became final in February 2010. 

I would therefore remand the case for the Board to determine whether Ms. Stewart’s 2005 claim raised a claim of 

service connection for IBS.
2 STEWART v. MCDONALD

I 

In September 2005, Ms. Stewart filed a claim for service 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 2006. Ms. Stewart sought reconsideration of that 

denial in November 2006, and the regional office denied 

her request for reconsideration 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 of 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 deci-

 

1 The parties dispute whether the DVA should have 

treated Ms. Stewart’s November 2006 request for reconsideration 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 reconsideration 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 problems” claim that was ultimately placed into appellate 

status for Board review. 

2 A physician’s report from a 2005 office visit reported 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, the 
STEWART 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 complaints 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 the claim for 

IBS as a “new condition (not part of GERD [gastroesophageal reflux disease] with stomach problems).” After a 

request for information regarding the IBS claim, the 

regional office denied that claim for lack of service connection 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 disagreement in response to that regional office decision.

In August 2010, Ms. Stewart filed a new claim for various disabilities, again expressly including IBS. The 

evidence pertaining to that claim included a January 

2010 DVA medical examination that contained a diagnosis of IBS. In May 2011 the regional office denied the 

2010 claim for IBS on procedural grounds. The office 

determined that the IBS claim had been denied in February 2009 and that the denial had become final because 

Ms. Stewart had failed to file a timely notice of disagreement 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. 
4 STEWART v. MCDONALD

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 diagnoses 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 

2009, and that the February 2009 denial was not separately appealed. However, the Board did not state whether 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 “no 

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 examiner’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 the pertinent medical 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, the 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), which 
STEWART v. MCDONALD 5

bars this court from reviewing “a challenge to a factual 

determination.” That contention is without merit.

It is true that questions 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 

issues that are outside the scope of our review. See Ellington 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 error in requiring Ms. Stewart 

to file a separate 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 regarded 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 disagreement 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 disagreement in response to the regional office’s February 2009

decision. Thus, in order to determine whether the Board 

erred, we need to know whether the Board regarded the 

IBS claim as being within 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. 

Stewart’s September 2005 claim of “stomach problems” 

included IBS. The majority points to the Board’s statement, 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 respec-
6 STEWART v. MCDONALD

tively, which are not related to her active service.” That 

observation, however, refers 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 problems” included 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 gastroesophageal disabilities afflicting a Veteran,” it is by no 

means clear that the Board meant to include IBS in the 

category of “gastroesophageal disabilities,” since the term 

“gastroesophageal” generally refers to conditions affecting 

the upper, not the lower, portion of the alimentary canal. 

For that reason, I disagree with the majority that the 

Board necessarily concluded that the 2005 claim included 

IBS.

The Veterans Court’s opinion, which found no error in 

the Board’s disposition of the IBS issue, was also inconclusive on this question. The opinion first noted 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. The court then 

held that the Board did not err in excluding the claim of 

IBS symptoms from its review of the regional office decision 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 properly address the 

viability of Ms. Stewart’s IBS claim, including whether 
STEWART v. MCDONALD 7

the denial of that claim became 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.