United States Court of Appeals
for the Federal Circuit
SOLENA Y. HAMPTON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
2022-1359
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4075, Judge Scott Laurer.
Decided: June 5, 2023
SEAN A. RAVIN, Miami, FL, argued for claimant-appellant.
AMANDA TANTUM, 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., PATRICIA M.
MCCARTHY; EVAN SCOTT GRANT, Y. KEN LEE, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
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2 HAMPTON v. MCDONOUGH
Before TARANTO, CLEVENGER, and HUGHES, Circuit
Judges.
HUGHES, Circuit Judge.
Solena Hampton appeals a decision from the Court of
Appeals for Veterans Claims denying an earlier effective
date for a total disability rating based on individual unemployability
and for dependents’ educational assistance. Because
the Veterans Court properly interpreted the new and
material evidence rule in 38 C.F.R. § 3.156(b), we affirm.
I
Ms. Hampton served in the U.S. Navy from June 1985
to November 1989. In April 1997, she filed a claim for veteran’s
disability compensation for migraines. The regional
office (RO) initially granted her an evaluation of 10 percent
for service-connected migraines. In September 1998, the
RO increased Ms. Hampton’s rating to 30 percent, effective
from the 1997 claim date.
In February 1999, Ms. Hampton applied for a total disability
rating based on individual unemployability (TDIU)1
effective as of her initial 1997 claim due to “migraine[s],
bladder, [and] reflux.” J.A. 309. In March 1999,2 the RO
denied TDIU. Ms. Hampton never filed a notice of disagreement
with this denial.
Shortly after her 1999 TDIU claim was denied, Ms.
Hampton filed a new claim for increased compensation
1 Along with her TDIU claim, Ms. Hampton also
sought dependents’ educational assistance. For simplicity,
and because an award of dependents’ educational assistance
is derived from an award of TDIU, we refer to the
claims together as her 1999 TDIU claim.
2 In other parts of the record, this decision is referred
to as the April 1999 decision, rather than the March 1999
decision. The two are the same.
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HAMPTON v. MCDONOUGH 3
based on her migraines. This claim was denied in June
1999, and Ms. Hampton filed a notice of disagreement for
this claim. Ms. Hampton appealed her increased compensation
claim to the Board. In November 2000, the Board
agreed with the RO in relevant part and denied her request
for an increased rating above 30 percent for migraines.
In September 2003, Ms. Hampton filed a new claim for
increased compensation for her migraines. At the same
time, she also filed a second application for TDIU. After
various rounds of appeals, the Board ultimately granted
Ms. Hampton TDIU for her migraines and the RO effectuated
that decision, thereby granting TDIU effective from
September 2003. The RO did not extend Ms. Hampton’s effective
date back to 1997, which was the date of her original
claim for migraines and the date sought by her 1999 TDIU
claim.
II
Arguing she was entitled to an earlier effective date of
May 1997, Ms. Hampton appealed the RO’s decision as to
the effective date of her TDIU. She argued that her 1999
TDIU claim was still pending because she submitted additional
evidence within the one-year appeal window of her
claim being denied, but she never received a determination
about whether this evidence was new and material to the
1999 TDIU claim. Ms. Hampton identified the following evidence
as new and material: (1) her May 1999 statement,
where she stated her migraines had worsened and for
which the RO opened a new claim for increased compensation,
and (2) a May 19993 Department of Veterans Affairs
3 Ms. Hampton refers to this as the “June 1999” VA
examination report, presumably because there is a June 4,
1999 date on the top left of the report. We refer to it as the
“May 1999” report because the date of the examination was
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4 HAMPTON v. MCDONOUGH
(VA) examination report, where she reported daily headaches
lasting from 2–24 hours.4 Ms. Hampton argued she
was entitled to an explicit new and material evidence determination
for this evidence under 38 C.F.R. § 3.156(b).
In February 2020, the Board denied entitlement to an
earlier effective date. It reasoned that Ms. Hampton was
not entitled to claim an earlier effective date based on the
1999 TDIU claim because that claim was not still pending
when Ms. Hampton filed her new claims in September
- Rather, the Board found that its November 2000 decision
denying Ms. Hampton’s claim for increased compensation
for migraines was an implicit denial of the 1999
TDIU claim.
Ms. Hampton appealed to the Veterans Court, arguing
that the Board erred by (1) not discussing whether her May
1999 statement and May 1999 exam constituted new and
material evidence under 38 C.F.R. § 3.156(b), and (2) finding
that its November 2000 decision was an implicit denial
of her 1999 TDIU claim. The Veterans Court rejected both
arguments and affirmed the Board’s decision. In
May 27, 1999 and because it is referred to as the May 1999
report at other places in the record. The two are the same.
4 Ms. Hampton also identifies a December 1999 VA
neurology clinic note, where she reported increased frequency
of headaches and that she sometimes experienced
a tingly sensation, and an April 2000 neurology clinic note.
But, despite acknowledging the clinic notes in her summary
of the facts, Ms. Hampton’s appeal to the Veterans
Court did not argue that either was new and material evidence
received by the RO within the one-year appeal window.
Thus, Ms. Hampton forfeited any such argument, and
we do not consider these two clinic notes on appeal. Gant v.
United States, 417 F.3d 1328, 1332 (Fed. Cir. 2005) (“Arguments
not made in the court or tribunal whose order is under
review are normally considered waived.”).
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HAMPTON v. MCDONOUGH 5
particular, the Veterans Court held that (1) the Board’s
2020 decision satisfied § 3.156(b) by including “statements
after the April 1999 rating decision and before the November
2000 Board decision do not re[-]raise the issue of
TDIU,” Hampton v. McDonough, No. 20-4075, 2021 WL
4952747, at *3 (Vet. App. Oct. 26, 2021), and (2) alternatively,
the Board’s 2000 decision satisfied the regulation
because it was an implicit denial of Ms. Hampton’s 1999
TDIU claim. Ms. Hampton appeals.
III
Our jurisdiction to review Veterans Court’s decisions is
limited by 38 U.S.C. § 7292. Forshey v. Principi, 284 F.3d
1335, 1338 (Fed. Cir. 2002) (en banc) (superseded by statute
on other grounds by Pub. L. No. 107–330, § 402(a), 116
Stat. 2820, 2832 (2002)). Under § 7292, we “may review the
validity of the Veterans Court’s decision on ‘a rule of law or
of any statute or regulation’ or ‘any interpretation thereof’
that the Veterans Court relied on in making its decision.”
Bond v. Shinseki, 659 F.3d 1362, 1366 (Fed. Cir. 2011)
(quoting 38 U.S.C. § 7292(a)). But we may not review: (1)
“a challenge to a factual determination,” or (2) “a challenge
to a law or regulation as applied to the facts of a particular
case,” unless the challenge raises a constitutional issue. 38
U.S.C. § 7292(d)(2).
On appeal, Ms. Hampton argues the Veterans Court
misinterpreted 38 C.F.R. § 3.156(b). Section 3.156(b) is a
VA regulation that provides: “[n]ew and material evidence
received prior to the expiration of the” period for appealing
a decision “will be considered as having been filed in connection
with the claim which was pending at the beginning
of the appeal period.” 38 C.F.R. § 3.156(b). Ms. Hampton
argues this regulation requires the RO to review any evidence
submitted during the appeal period and explicitly
state whether that evidence is new and material to any
claim still within the appeal period. By holding that
§ 3.156(b) was satisfied in Ms. Hampton’s case, even
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6 HAMPTON v. MCDONOUGH
though the RO did not make such an explicit determination
for her 1999 TDIU claim, Ms. Hampton argues that the
Veterans Court misinterpreted § 3.156(b). Thus, we have
jurisdiction to address the proper interpretation of
§ 3.156(b) under 38 U.S.C. § 7292.
We are not persuaded by the government’s arguments
that Ms. Hampton’s appeal only challenges the Veterans
Court’s factual findings and facts as applied to law, and
therefore falls outside our jurisdiction. To the contrary, Ms.
Hampton’s challenge raises a § 3.156(b) interpretation issue
that is similar to previous § 3.156(b) challenges over
which we have exercised our jurisdiction. See, e.g., Bond,
659 F.3d at 1367 (“Whether § 3.156(b) requires the VA to
determine if a submission filed during the appeal period
constitutes new and material evidence relating to a pending
claim is a legal question divorced from the facts of this
case.”). Here, too, we have jurisdiction over Ms. Hampton’s
appeal. We review the Veterans Court’s interpretation of
this regulation de novo. 38 U.S.C. § 7292(c); Breland
v. McDonough, 22 F.4th 1347, 1350 (Fed. Cir. 2022).
IV
Ms. Hampton’s appeal raises the following question of
interpretation: whether § 3.156(b) requires the VA to explicitly
state whether submitted evidence is new and material
to a claim, even where that claim is implicitly denied
after consideration of the evidence. Following our recent
opinion in Pickett v. McDonough, we hold that it does not.
64 F.4th 1342 (Fed. Cir. 2023).
In Pickett, the veteran filed an initial claim for benefits
in April 2004. Id. at 1343. In 2010, he was granted serviceconnected
compensation for post-traumatic stress disorder
(PTSD) and coronary artery disease (CAD) effective April - Id. Mr. Pickett appealed the 2010 decision, seeking a
higher rating for CAD. Id. Within the appeal window,
Mr. Pickett also filed an application for TDIU (VA Form 21-
8940). Id. In denying Mr. Pickett’s TDIU claim, the RO: (1)
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HAMPTON v. MCDONOUGH 7
listed the VA Form 21-8940 as evidence considered, (2) addressed
TDIU entitlement due to CAD, and (3) denied
TDIU on the merits. Id. at 1343–44. Mr. Pickett never appealed
that decision. Id. at 1344. Later, when he filed another
TDIU claim in 2017, Mr. Pickett argued that his 2004
claim was still pending because the RO did not explicitly
state whether VA Form 21-8940 was new and material evidence
to his claim seeking a higher CAD rating. Id. at - We disagreed, holding that “an implicit finding” that
a submission is new and material evidence satisfies
§ 3.156(b) “so long as there is some indication that the VA
determined whether the submission is new and material
evidence, and if so, considered such evidence in evaluating
the pending claim.” Id. at 1347.
The facts here are similar to those in Pickett.
Ms. Hampton filed additional evidence within a year of her
1999 TDIU claim being denied: her May 1999 statement to
the RO seeking a higher rating for migraines and a
May 1999 VA examination report. The RO’s June 1999 decision,
and later the Board’s 2000 decision, indicated that
the RO considered the May 1999 evidence and did not find
reason to increase Ms. Hampton’s rating for migraines. But
like the veteran in Pickett, Ms. Hampton argues this was
not enough. She argues that the RO was required to make
an explicit finding that her May 1999 statement and
May 1999 VA examination report were new and material
evidence to her 1999 TDIU claim.
This is not what § 3.156(b) requires. Following our
precedent in Pickett, all that was required to satisfy
§ 3.156(b) was some indication that (1) the VA had determined
that the May 1999 statement and May 1999 VA examination
report were new and material, and (2) the VA
considered that evidence as to her 1999 TDIU claim. See
id. Both are satisfied here.
First, in denying Ms. Hampton’s claim for increased
compensation for migraines, the RO’s decision and the
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8 HAMPTON v. MCDONOUGH
Board’s 2000 decision each made “some indication that the
VA determined whether the submission[s] [were] new and
material evidence.” Id. Similar to the RO decision in
Pickett, the RO decision here (1) listed the May 1999 VA
examination report as evidence considered, (2) addressed
what was necessary to warrant an increased rating for migraines,
and (3) denied an increase in rating for migraines
on the merits. J.A. 301. Although the RO decision did not
explicitly list Ms. Hampton’s May 1999 statement as evidence
considered, it implied that the RO considered this
statement new and material evidence because it acknowledged
receiving Ms. Hampton’s May 1999 statement in
support of her claim and necessarily issued the RO decision
in response to that statement.
Similarly, the Board’s 2000 decision addressed the May
1999 VA examination report and concluded that the medical
evidence did not warrant an increased rating for migraines.
Although the Board’s 2000 decision did not
explicitly cite to Ms. Hampton’s May 1999 statement, it
acknowledged that it had considered her opinions and
views generally. J.A. 274 (“[Ms. Hampton’s] views as to the
etiology of her pain complaints and/or the extent of functional
impairment are specifically outweighed by the medical
evidence of record cited above.”). Thus, by considering
the May 1999 evidence and addressing the merits of that
evidence, the RO’s decision and the Board’s 2000 decision
both made the implicit finding that the May 1999 evidence
was new and material.
Second, the decisions also indicate that the VA considered
the May 1999 evidence as to Ms. Hampton’s 1999
TDIU claim. They do so, not explicitly, but implicitly. When
a veteran has more than one pending claim but only one of
those claims is explicitly denied, a related pending claim
may still be deemed implicitly denied. Deshotel v. Nicholson,
457 F.3d 1258, 1261 (Fed. Cir. 2006). Here, the Veterans
Court found that “[t]he Board, by denying the
increased evaluation for migraines, on a schedular and
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HAMPTON v. MCDONOUGH 9
extra[-]schedular basis, also implicitly denied any higher
ratings.” J.A. 28. We see no legal error with this conclusion.
Because the RO’s and the Board’s decisions indicate that
they considered the May 1999 evidence as new and material,
and because those decisions implicitly denied TDIU, it
follows that the VA considered the May 1999 evidence as
to Ms. Hampton’s TDIU claim—not just as to her increased
rating claim for migraines. Nothing more was required to
satisfy § 3.156(b).
We are not persuaded by Ms. Hampton’s arguments to
the contrary. Ms. Hampton primarily objects to the Veterans
Court’s conclusion that the Board’s 2020 decision made
an explicit new and material evidence determination that
satisfied § 3.156(b). We agree with Ms. Hampton that the
Board’s 2020 decision did not satisfy § 3.156(b) by finding
“statements after the April 1999 rating decision and before
the November 2000 Board decision do not re[-]raise the issue
of TDIU.” J.A. 27. Determining that later submissions
did not re-raise TDIU is different from determining that
those submissions are not new and material evidence. But
our disagreement with the Veterans Court’s conclusion on
that point does not change the outcome of this appeal. As
discussed above, § 3.156(b) had been satisfied by the RO’s
1999 and the Board’s 2000 decisions, which implicitly
found the evidence to be new and material, see Pickett, 64
F.4th at 1347, and considered that evidence before implicitly
denying Ms. Hampton’s TDIU claim, see Deshotel, 457
F.3d at 1261.
Ms. Hampton also argues that the Board cannot make
a new and material evidence determination in the first instance—
only the RO can. We need not decide that issue
here.5 As explained above, the RO did make a new and
5 Even so, our precedent appears to allow the Board
to make a new and material evidence determination in the
first instance to satisfy § 3.156(b). See Bond, 659 F.3d at
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10 HAMPTON v. MCDONOUGH
material evidence determination in its June 1999 decision.
It just did so implicitly. The Board made that same decision
in November 2000. Thus, the Board in its 2020 decision, by
finding the 2000 decision an implicit denial of TDIU, was
not making a new and material evidence determination in
the first instance. The RO was the first to consider that evidence,
and it did so in 1999.
We have considered Ms. Hampton’s remaining arguments
and find them unpersuasive. Because we agree with
the Veterans Court that the VA’s implicit denial of TDIU
satisfied § 3.156(b), we affirm.
AFFIRMED
COSTS
No costs.
1368 (noting that the government conceded “nothing in the
record indicates that the RO or Board made a determination
as to whether the February 1998 submission contained
new and material evidence” (emphasis added)); Beraud,
766 F.3d at 1406 (citing Bond for the proposition that “the
Board” must include a written statement of its findings,
and so we cannot presume that the Board made a new and
material evidence determination absent some indication to
that effect (emphasis added)).
Case: 22-1359 Document: 36 Page: 10 Filed: 06/05/2023
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