NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
ROBERT E. ROBINSON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
2021-1784
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2296, Senior Judge Robert N.
Davis.
Decided: February 18, 2022
JOHN D. NILES, Carpenter Chartered, Topeka, KS, argued
for claimant-appellant. Also represented by JOHN F.
CAMERON, John F. Cameron, Attorney at Law, Montgomery,
AL.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH
Case: 21-1784 Document: 38 Page: 1 Filed: 02/18/2022
2 ROBINSON v. MCDONOUGH
MARIE HOSFORD; CHRISTOPHER O. ADELOYE, BRIAN D.
GRIFFIN, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
Before TARANTO, HUGHES, and STOLL, Circuit Judges.
HUGHES, Circuit Judge.
The Board of Veterans’ Appeals granted Robert E. Robinson
disability benefits with an effective date of May 2,
- Mr. Robinson appealed the Board’s effective-date determination,
and the Court of Appeals for Veterans Claims
affirmed. Mr. Robinson now appeals to us, arguing that the
Veterans Court erred by incompletely applying the test for
determining the law of the case and by applying the wrong
standard of review in analyzing whether a document constitutes
a decision. Because the Veterans Court articulated
and applied the correct law-of-the-case test and because
Mr. Robinson forfeited his standard-of-review argument,
we affirm.
I
Mr. Robinson served in the Army from February to
June 1974 and from October to November 1977. He filed a
claim for disability compensation in December 1974 after
experiencing shortness of breath, inability to concentrate,
chills, nervousness, dizziness, and blackout spells. The Veterans
Affairs regional office issued a rating decision denying
Mr. Robinson’s application in July 1975, finding no
service connection.
Mr. Robinson then requested to reopen his application
three times:
First, in August 1979, Mr. Robinson filed a request to
reopen his December 1974 application—although at that
time Mr. Robinson characterized this request as his “first
claim for VA compensation.” Appx104. The RO sent a letter
in response, informing Mr. Robinson that he had
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ROBINSON v. MCDONOUGH 3
previously applied for benefits in December 1974 and asking
if he had additional information to submit. Mr. Robinson
responded that he had never filed a claim and asked
the RO to either provide evidence that he had filed a prior
claim or to review his request on the merits. The RO then
forwarded a copy of Mr. Robinson’s December 1974 application
to Mr. Robinson. The record contains no further
communications regarding this request to reopen.
Second, in April 1980, Mr. Robinson filed a request to
reopen his December 1974 application, indicating that his
doctor had made new findings about Mr. Robinson’s mental
health. The RO sent a letter to Mr. Robinson’s doctor, requesting
additional information. Mr. Robinson’s doctor responded
with an evaluation of Mr. Robinson’s mental
health. The RO, considering this evidence, determined that
the evidence did not alter the validity of the RO’s previous
denial.
Third, in May 1992, Mr. Robinson again filed a request
to reopen his December 1974 application. The RO denied
his claim, determining that the evidence received was not
new or material to establish service connection. Mr. Robinson
appealed, and his case went back and forth between
the Board of Veterans’ Appeals and the Veterans Court for
several years. Relevant to this appeal, the Board in 1997
affirmed an RO rating decision that denied Mr. Robinson’s
third request to reopen for failure to submit new evidence.
The Veterans Court vacated and remanded the 1997 Board
decision on appeal in light of new precedent from our court.
Finally, in July 2011, the Board granted Mr. Robinson
service connection for schizophrenia and basic eligibility
for Dependents’ Educational Assistance. The Board assigned
an effective date of May 2, 1992 for both entitlements,
corresponding to the date that Mr. Robinson filed
his third request to reopen. Mr. Robinson disagreed with
and challenged the Board’s effective-date determination.
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4 ROBINSON v. MCDONOUGH
The Veterans Court affirmed. Mr. Robinson now appeals to
us.
II
We analyze de novo the Veterans Court’s interpretation
of law. Bazalo v. West, 150 F.3d 1380, 1382 (Fed. Cir.
1998). And we cannot review challenges to factual determinations
or applications of law to facts. 38 U.S.C.
§ 7292(d)(2).
A
Mr. Robinson first argues that the Veterans Court
erred in its analysis of the law-of-the-case doctrine because
the court ignored part of the doctrine. Under the law-ofthe-
case doctrine, courts generally refuse to reconsider
questions of law and fact that have already been decided
during litigation to “prevent relitigation of issues.” Suel v.
Sec’y of Health & Hum. Servs., 192 F.3d 981, 984–85 (Fed.
Cir. 1999); see Means v. Brown, 9 Vet. App. 482, 483 (1996)
(applying the doctrine to a Board decision). The doctrine
extends to both explicit findings and “things decided by
necessary implication.” Smith Int’l, Inc. v. Hughes Tool Co.,
759 F.2d 1572, 1577 (Fed. Cir. 1985) (cleaned up). But the
law-of-the-case doctrine is not absolute. For example, a
trial court is free to reexamine findings on remand that are
“not examined in, relied on, or otherwise necessary to” the
corresponding appellate decision. Exxon Corp. v. United
States, 931 F.2d 874, 878 (Fed. Cir. 1991).
The Board, in its 1997 decision, referred to the RO’s
first rating decision in 1975 as “the last final rating decision
denying service connection for a psychiatric disorder.”
Appx64. Mr. Robinson asserts that this is a fact finding to
which the Board and the Veterans Court are now bound
under the law-of-the-case doctrine. If the 1975 rating decision
is the “last final” denial of Mr. Robinson’s claim, then,
by implication, Mr. Robinson’s subsequent requests to reopen
were never finally denied and are still pending. The
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ROBINSON v. MCDONOUGH 5
Board could, under this theory, award Mr. Robinson an effective
date as early as August 10, 1979—the date of his
first request to reopen. See 38 U.S.C. § 5110(a)(1) (“[T]he
effective date of an award . . . shall not be earlier than the
date of receipt of application therefor.”); 38 C.F.R.
§ 3.400(r) (setting the effective date for reopened claims as
the “[d]ate of receipt of [the] claim”).
The Board and Veterans Court both rejected this argument.
The Board determined that the 1997 decision is, “at
best, ambiguous as to whether the last final denial was in
1975 or 1980.” Appx25. The Board further determined that
the Veterans Court, in a 2000 decision on appeal from the
Board’s 1997 decision, had analyzed an entirely separate
issue and “did not reach the question of which RO decision
was the last final rating decision.” Appx25. Because the
Board in its 1997 decision did not appear to have made the
alleged factual finding and because—even if the Board did
so find—the Veterans Court in 2000 did not consider or rely
on that alleged finding on appeal, the Board concluded that
the law-of-the-case doctrine does not apply. The Board then
determined that the last final denial actually occurred in
May 1980, in response to Mr. Robinson’s second request to
reopen. Appx25.
The Veterans Court affirmed the Board’s conclusion,
discerning no error in the Board’s analysis. The Veterans
Court articulated the correct law-of-the-case standard, analyzed
the facts of the case, determined that “the Court in
2000 [had] not specifically identif[ied] the last final rating
decision,” and concluded that “it was not an error for the
Board to find the last final denial was the May 1980 rating
decision.” Appx3–4.
Mr. Robinson argues that the Veterans Court erred because
it considered only whether the previous decisions
“specifically identif[ied]” or “expressly contemplate[d]” the
alleged factual finding. Appellant’s Br. 15; Appx4. Mr. Robinson
asserts that the law-of-the-case doctrine
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6 ROBINSON v. MCDONOUGH
“comprehends things decided by necessary implication as
well as those decided explicitly.” Appellant’s Br. 12 (quoting
Smith Int’l, 759 F.2d at 1577 (emphasis added)). According
to Mr. Robinson, the Veterans Court did not
“assess[] law of the case in the light of what the Board and
the Veterans Court actually decided—whether explicitly or
by necessary implication.” Appellant’s Br. 12.
We disagree. The Veterans Court articulated the correct
standard, recognizing that it is “without power to do
anything which is contrary to either the letter or spirit of
the mandate construed in light of the opinion of the court
deciding the case.” Appx3 (emphasis added) (quoting
Browder v. Brown, 5 Vet. App. 268, 270 (1993)). And while
the Veterans Court did discuss what the 1997 Board decision
and 2000 Veterans Court decision specifically identified
and expressly contemplated, nothing in the Veterans
Court’s discussion indicates that it limited its analysis to
those express findings or otherwise impermissibly narrowed
the doctrine. In fact, the Veterans Court emphasized
that the 1997 decision “when read [i]s, at best, ambiguous
as to whether the last final denial was in 1975 or 1980,”
indicating that it analyzed the decision holistically. Appx4
(quoting Appx25).
To the extent that Mr. Robinson argues to us that the
1997 decision and subsequent appellate decision explicitly
or implicitly found that the 1975 rating decision is his last
final denial, that is an application of law to fact that we
cannot review. 38 U.S.C. § 7292(d)(2). Therefore, we affirm
the Veterans Court’s law-of-the-case conclusion.
B
Mr. Robinson next argues that the Veterans Court applied
the wrong standard of review in determining whether
a letter from the RO constitutes a rating decision.
In August 1979, Mr. Robinson filed his first request to
reopen his claim for disability benefits. The RO responded
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ROBINSON v. MCDONOUGH 7
in September 1979, informing Mr. Robinson that he had
previously filed an application for benefits that had been
denied, asking Mr. Robinson if he had acquired additional
evidence, and attaching a Notice of Procedural and Appellate
Rights. Mr. Robinson asserts that this RO letter is a
rating decision. A few days after receiving the RO letter,
Mr. Robinson responded, stating that he had not previously
filed an application and requesting that the Board
provide evidence that he had filed such an application.
Mr. Robinson asserts that his response constitutes a Notice
of Disagreement that triggered the Board’s duty to issue a
statement of the case. See 38 U.S.C. § 4005(d) (1976)1; Collaro
v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (“Once
the agency receives a claimant’s NOD, . . . [t]he agency
must prepare a statement of the case.”). Because the Board
never issued a statement of the case as it was required to
do, Mr. Robinson argues that his 1979 request to reopen is
still pending and that the Board could therefore award him
an earlier effective date.
The Board disagreed with Mr. Robinson, concluding
that the RO letter is not a decision and that Mr. Robinson’s
response is not a Notice of Disagreement. Appx23–24. And
the Veterans Court determined that the Board “did not
clearly err in finding that the [RO letter] was not a decision.”
Appx4. Mr. Robinson alleges that the Veterans Court
erred in analyzing this issue for clear error rather than de
novo.2
1 This provision was later renumbered to § 7105.
Pub. L. No. 102-40, § 402(b)(1), 105 Stat. 187, 238 (1991).
And has since been amended. Pub. L. No. 115-55,
§ 2(q)(1)(D), 131 Stat. 1105, 1112 (2017).
2 The Veterans Court has held that “[w]hether a document
is an NOD is a question of law for the Court to determine
de novo.” Beryle v. Brown, 9 Vet. App. 24, 28
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8 ROBINSON v. MCDONOUGH
Importantly, Mr. Robinson argued for a clear-error
standard of review in his briefing before the Veterans
Court. See Appx155 (“[T]he Board made the clearly erroneous
finding that the September 1979 VA document was not
a decision.” (emphasis added)). We have previously determined
that an appellant who “urged upon the Veterans
Court the very standard that that court applied” forfeits
any argument on appeal that the Veterans Court “committed
reversible error” “when [it] applied that standard.” Logan
v. Principi, 71 F. App’x 836, 838–39 (Fed. Cir. 2003);
see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir.
2002) (en banc) (“[T]he fact that the appellant specifically
urged the legal rule that he now challenges counsels
against consideration of the issue.”). We accordingly conclude
that Mr. Robinson forfeited his argument that the
Veterans Court should have applied a de novo standard of
review because Mr. Robinson had advocated for a clear-error
standard of review in his briefing to the Veterans Court.
Therefore, we affirm the Veterans Court’s conclusion that
the RO letter is not a decision and that Mr. Robinson’s response
is not a Notice of Disagreement.
(1996). But neither Mr. Robinson nor the government cites
to an opinion that explicitly identifies the standard of review
for whether a document is a rating decision. See Oral
Arg. at 21:48–22:22, https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=21-1784_02072022.mp3 (“I am not
aware of any case law that specifically identifies criteria or
a test to make that determination.”). Although both parties
contend that the standard of review is also de novo, Appellant’s
Br. 17; Oral Arg. at 20:37–21:47, we do not need to
decide what the appropriate standard of review is to reach
our conclusion, so we leave this issue open.
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ROBINSON v. MCDONOUGH 9
III
For the reasons above, we affirm the Veterans Court’s
decision.
AFFIRMED
No costs.
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