Case: 22-1057   Document: 38     Page: 1   Filed: 04/06/2023




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  DAVID L. PICKETT,
                   Claimant-Appellant

                            v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                       2022-1057
                 ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 20-196, Chief Judge Margaret C.
 Bartley.
                ______________________

                 Decided: April 6, 2023
                 ______________________

    KENNETH M. CARPENTER, Law Offices of Carpenter
 Chartered, Topeka, KS, argued for claimant-appellant.

     ASHLEY AKERS, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, argued for respondent-appellee. Also represented
 by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M.
 MCCARTHY; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office
 of General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
                  ______________________
Case: 22-1057    Document: 38      Page: 2    Filed: 04/06/2023




 2                                     PICKETT   v. MCDONOUGH




  Before STOLL, SCHALL, and CUNNINGHAM, Circuit Judges.
 STOLL, Circuit Judge.
      David L. Pickett appeals the decision of the United
 States Court of Appeals for Veterans Claims (Veterans
 Court), which concluded that the Department of Veterans
 Affairs’ (VA) regional office (RO) complied with the require-
 ments of 

(b). As a result, Mr. Pickett’s
 failure to timely appeal certain RO decisions finalized a
 then-pending claim. The finalized claim could not thereaf-
 ter provide a basis for an earlier entitlement to total disa-
 bility rating based on individual unemployability (TDIU).
 Because the Veterans Court correctly interpreted
 § 3.156(b), we affirm the Veterans Court’s decision.
                         BACKGROUND
     Mr. Pickett served in the United States Army from
 September 1969 to September 1971, including service in
 Vietnam. In April 2004, he filed a claim with the VA for
 service-connected compensation for a general anxiety dis-
 order, which he attributed to exposure to Agent Orange or
 other herbicides. J.A. 17–26. The VA eventually granted
 Mr. Pickett service-connected compensation for post-trau-
 matic stress disorder (PTSD) and coronary artery disease
 (CAD) effective April 2004. J.A. 51, 68.
     The VA first granted Mr. Pickett service connection for
 CAD in 2010, upon special review of his case as mandated
 by Nehmer v. United States Department of Veterans Af-
 fairs, 

 (9th Cir. 2007). There, the Ninth Cir-
 cuit upheld an interpretation of a consent decree which
 requires the VA to readjudicate claims for newly recog-
 nized, presumptively service-connected conditions associ-
 ated with herbicide exposure. 

, 853–54 & n.4.
 The RO thus granted Mr. Pickett service-connection for
 CAD effective April 2004, the date his claim first refer-
 enced herbicide exposure. J.A. 68, 70.
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 PICKETT   v. MCDONOUGH                                     3



     Mr. Pickett appealed, seeking a higher rating for his
 service-connected CAD. J.A. 73–74. Within the timeframe
 to appeal, Mr. Pickett filed VA Form 21-8940, which is an
 application for TDIU. J.A. 89–90. Mr. Pickett’s 2011 VA
 Form 21-8940 lists CAD and PTSD as preventing him from
 “securing or following any substantially gainful occupa-
 tion” starting June 30, 2007, the date he last worked.
 J.A. 89 (boxes 6, 12–14).
    Relevant here are two subsequent RO decisions dated
 January 2013 and April 2014.
     The January 2013 RO decision lists the 2011 VA Form
 21-8940 as evidence considered. J.A. 91 (fifth bullet point).
 In an attached sheet, the RO decision notes that “[e]ntitle-
 ment to individual unemployability,” understood to mean
 TDIU, “is denied” and to “please tell vet, ‘VA exam dated
 February 3, 2012 states that your CAD does not prevent
 you from performing sedentary employment tasks and
 light physical employment and your PTSD examiner states
 that you are in full remission and you appear to have little
 functional impairment.’” J.A. 95. The VA explained to
 Mr. Pickett in a notice letter that his claim for TDIU was
 denied “because the evidence does not show [that he is] un-
 able to secure or follow a substantially gainful occupation
 as a result of service-connected disabilities.” J.A. 99. The
 VA also notified Mr. Pickett that he had a year to appeal.
 

 He did not appeal.
     The April 2014 RO decision lists the January 2013 RO
 decision, as well as the evidence it relied on—i.e., among
 other things, the 2011 VA Form 21-8940—as evidence con-
 sidered in the decision. J.A. 102 (second bullet point). This
 2014 decision explains that Mr. Pickett’s TDIU claim “was
 denied because the evidence does not show [that he is] un-
 able to secure or follow a substantially gainful occupation
 as a result of service-connected disabilities.” J.A. 103. The
 decision also proposes decreasing Mr. Pickett’s PTSD rat-
 ing. J.A. 101. Mr. Pickett only challenged the proposed
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 4                                    PICKETT   v. MCDONOUGH



 reduction to his PTSD rating and did not appeal the denial
 of his TDIU claim.
     Years later, in January 2017, Mr. Pickett filed a sup-
 plemental claim and new TDIU application, again indicat-
 ing that he was unemployed due to service-connected CAD
 and PTSD. J.A. 157–65. Following additional VA exami-
 nations, the RO awarded Mr. Pickett TDIU due solely to
 PTSD and increased his ratings for CAD and PTSD, all ef-
 fective January 2017, the date the VA received the most
 recent claim. J.A. 104–10.
     Mr. Pickett filed a notice of disagreement (NOD). He
 argued that under the correct application of 

(b), he was entitled to “an extraschedular total rat-
 ing,” which could include TDIU, effective from June 2007
 (the date last worked) through January 2017, based on his
 service-connected CAD. J.A. 111–15. The RO disagreed,
 finding that the January 2013 and April 2014 RO decisions
 denied entitlement to TDIU, were not appealed, and thus
 became final. In other words, that claim stream ended. As
 a result, Mr. Pickett could not reach back to that claim
 stream to seek TDIU before 2017. Mr. Pickett appealed to
 the Board of Veterans’ Appeals.
     Before the Board, Mr. Pickett argued that, in assessing
 his April 2004 claim, the VA did not properly apply
 § 3.156(b) because it failed to assess whether his 2011 VA
 Form 21-8940 was new and material evidence that sup-
 ported that claim. J.A. 139–41. This meant, he argued,
 that his April 2004 claim remained pending, J.A. 142,
 which in turn could allow Mr. Pickett to seek entitlement
 to TDIU prior to January 2017. That is, Mr. Pickett’s enti-
 tlement to TDIU prior to January 2017 rested on whether
 the April 2004 claim remained pending. The Board denied
 Mr. Pickett an earlier effective date for his service-con-
 nected CAD, [J.A. 144–49] and he appealed to the Veter-
 ans Court. Pickett v. McDonough, No. 20-0196, 

 (Vet. App. June 30, 2021).
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 PICKETT   v. MCDONOUGH                                    5



      The Veterans Court affirmed the Board’s decision.
 First, the Veterans Court agreed with Mr. Pickett that the
 Board erred in characterizing the issue on appeal as an ear-
 lier effective date for an increased CAD rating, rather than
 “an extraschedular total CAD evaluation, including
 TDIU.” 

 (emphasis added). But the Veterans
 Court held that the Board’s mistake and subsequent anal-
 ysis was harmless error because the RO “implicitly made
 the § 3.156(b) determination and considered the September
 2011 VA Form 21-8940 in connection with the April 2004
 CAD claim.” Id. Specifically, the Veterans Court found
 that the January 2013 RO decision:
    [1] listed the September 2011 VA Form 21-8940
    among the evidence it considered in making its de-
    cision; [2] addressed entitlement to TDIU due to
    CAD, an issue that was first raised expressly in
    that submission; and [3] rendered a TDIU decision
    on the merits, explaining that that benefit was de-
    nied because a February 2012 VA examination
    showed that his service-connected CAD did not pre-
    clude substantially gainful sedentary or light phys-
    ical employment.
 Id. (citations omitted). Thus, the Veterans Court deter-
 mined that the RO “essentially treated [the 2011 VA Form
 21-8940] as new and material evidence, and considered it
 in connection with the pending CAD evaluation claim.” Id.
     The Veterans Court next explained that Mr. Pickett’s
 failure to perfect an appeal following the January 2013 or
 the April 2014 RO decision meant that Mr. Pickett’s
 April 2004 claim for the maximum CAD evaluation—in-
 cluding entitlement to TDIU—became final by 2017, when
 the VA granted Mr. Pickett TDIU for PTSD and increased
 ratings for his service-connected CAD and PTSD. Id.
 Hence, because only Mr. Pickett’s new TDIU application
 remained pending at that time, Mr. Pickett was not enti-
 tled to TDIU before 2017.
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 6                                      PICKETT   v. MCDONOUGH



    Mr. Pickett appeals.       We have jurisdiction under
 

(c).
                          DISCUSSION
      This appeal hinges on the interpretation of 

(b). Specifically, we must determine whether the
 VA may indicate its compliance with § 3.156(b) implicitly,
 as the Veterans Court found, or must do so explicitly, as
 Mr. Pickett argues. If Mr. Pickett is correct, and the VA
 failed to make an explicit finding as to whether the
 2011 VA Form 21-8940 is new and material evidence, then
 Mr. Pickett contends that this evidence relates to the pend-
 ing April 2004 claim and thus his April 2004 claim remains
 pending. As such, Mr. Pickett argues that he could be en-
 titled to TDIU prior to 2017. On the other hand, if
 Mr. Pickett’s interpretation of § 3.156(b) is wrong, then the
 April 2004 claim stream ended when he failed to appeal the
 January 2013 or April 2014 RO decisions and he is not en-
 titled to TDIU before 2017.
     We review the Veterans Court’s interpretation of a reg-
 ulation de novo.       See 

(c); Breland
 v. McDonough, 

 (Fed. Cir. 2022). We
 start our interpretation analysis with the language of the
 regulation at issue.
     Section 3.156(b) provides that:
     New and material evidence received prior to the ex-
     piration of the appeal period, or prior to the appel-
     late decision if a timely appeal has been filed . . . ,
     will be considered as having been filed in connec-
     tion with the claim which was pending at the be-
     ginning of the appeal period.
     The regulation provides that the VA must treat (1) new
 and material evidence (2) received prior to the end of the
 appeal period (3) as having been filed in connection with
 the claim that was pending at the beginning of the appeal
 period. While the VA must comply with the regulation,
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 PICKETT   v. MCDONOUGH                                    7



 nothing in the text of the regulation states that the VA
 must expressly state its analysis under this regulation.
      Mr. Pickett argues that § 3.156(b) requires more from
 the VA than “merely act[ing] on” or “addressing” evidence
 in a VA decision. Appellant’s Br. 17; Reply Br. 10. In other
 words, the VA must do more than list evidence that is new
 and material and filed before the end of the appeal period
 as evidence considered in the case. He argues that an as-
 sessment under § 3.156(b) “must be explicitly stated in [a
 VA] decision.” Appellant’s Br. 16 (emphasis added). Dur-
 ing oral argument, Mr. Pickett’s counsel stated that “magic
 words” are necessary to indicate whether the VA made the
 proper assessment under § 3.156(b). Oral Arg. at 12:10–
 13:03, https://oralarguments.cafc.uscourts.gov/default.asp
 x?fl=22-1057_02092023.mp3. Specifically, in Mr. Pickett’s
 view, making an appropriate assessment under § 3.156(b)
 requires the VA to state (i) that it received the evidence;
 (ii) whether the evidence is new and material; and (iii) if
 the evidence is new and material, whether the evidence re-
 lates back to the original claim. Id. We disagree and con-
 clude based on the regulatory text itself that § 3.156(b)
 does not require an explicit assessment nor the inclusion of
 “magic words.”
     Mr. Pickett asserts that our own precedent—particu-
 larly Bond v. Shinseki, 

 (Fed. Cir. 2011) and
 Beraud v. McDonald, 

 (Fed. Cir. 2014)—re-
 quires the VA to provide the explicit analysis that he advo-
 cates. Appellant’s Br. 16–17. We disagree.
     In Bond, we held that under § 3.156(b) “the VA must
 evaluate submissions received during the relevant period
 and determine whether they contain new evidence relevant
 to a pending claim.” 

. There, the VA eval-
 uated whether the evidence it received supported a new
 claim but failed to consider whether it constituted new and
 material evidence for a pending claim, as § 3.156(b) dic-
 tates. See id. at 1367–68. Importantly, “nothing in the
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 8                                     PICKETT   v. MCDONOUGH



 record indicate[d] that the RO or Board” determined
 whether the evidence submitted was new and material. Id.
 at 1368. We explained how, “[a]bsent any indication in the
 record that this analysis occurred, we decline to presume
 that the VA considered, but rejected, the possibility that
 Mr. Bond’s . . . submission contained new and material ev-
 idence relating to his [pending] claim.” Id. We also ex-
 pressed reluctance to assume the VA made “an unstated
 finding” where, as was true in that case, the submission
 “would seem to compel the opposite conclusion” than what
 the RO reached. Id. Thus, Bond explains that a determi-
 nation under § 3.156(b) is mandatory, but it left the door
 open for an implicit determination so long as there is some
 indication in the record that the proper analysis occurred.
     Similarly, in Beraud, we affirmed Bond and the VA’s
 obligation under § 3.156(b) to “provide a determination
 that is directly responsive to the new submission.”
 

. There, the Veterans Court found that a
 pending claim became final upon the VA’s final denial of an
 identical claim despite the VA’s failure to analyze the pend-
 ing claim under § 3.156(b). Id. at 1404. We reversed, again
 holding that the VA must make a determination under
 § 3.156(b) and that a pending claim is not finalized until
 the VA makes the required § 3.156(b) determination. Rel-
 evant here, we rejected the government’s invitation to pre-
 sume that the VA considered the veteran’s submission
 because there was “no indication that the VA made its re-
 quired determination under § 3.156(b).” Id. at 1406–07.
 Notably, we explained that “such a general presumption
 applies where the record before the VA is complete and
 there is no statutory or regulatory obligation that would be
 thwarted by application of the presumption.” Id. at 1406.
 But we cautioned against applying a presumption that the
 VA considered evidence where there is “no firm trace of [the
 VA’s potential] dereliction in the record.” Id. at 1407. We
 emphasized that this is especially so in situations where
 “the government asks us to indulge a presumption that the
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 PICKETT   v. MCDONOUGH                                       9



 VA considered records it never obtained.” Id. Thus, Be-
 raud also left the door open for the VA to demonstrate its
 compliance with the requirements of § 3.156(b) via an im-
 plicit determination so long as that implicit determination
 is clear on the record. Like Bond, Beraud requires some
 indication in the record of a directly responsive decision,
 but no “magic words.”
     Relatedly, in a more recent opinion, we held that under
 § 3.156(b) the VA “is not required to explicitly determine
 whether a submission constitutes ‘new and material evi-
 dence’ where . . . the conditions underlying the two claims
 have no apparent connection.” Gudinas v. McDonough,
 

 (Fed. Cir. 2022). While Gudinas con-
 cerned different circumstances than those before us, our
 holding here is consistent: Section 3.156(b) does not re-
 quire the VA to invoke any “magic words.”
      In other words, the VA’s obligation under § 3.156(b) is
 mandatory, but our case law does not require the VA’s de-
 cision to include specific words to fulfill the requirements
 of § 3.156(b). Instead, consistent with the text of § 3.156(b),
 Bond and Beraud allow for an implicit finding so long as
 there is some indication that the VA determined whether
 the submission is new and material evidence and, if so, con-
 sidered such evidence in evaluating the pending claim.
     Here, the Veterans Court’s understanding of § 3.156(b)
 was the same as ours. See Pickett, 

, at *5
 (“[T]he RO issued a rating decision in Mr. Pickett’s case
 that directly responded to his submission during the rele-
 vant appeal period, essentially treated that submission as
 new and material evidence, and considered that evidence
 in conjunction with the then-pending claim.”). Accordingly,
 because the Veterans Court did not err in its interpretation
 of what § 3.156(b) requires, we affirm the Veterans Court’s
 decision.
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 10                                  PICKETT   v. MCDONOUGH



                        CONCLUSION
     For the reasons above, we hold that the VA may fulfill
 its mandatory obligation under § 3.156(b) implicitly. For
 sure, there must be some indication that the proper analy-
 sis under the regulation occurred, but we hold that
 § 3.156(b) does not require the VA to invoke certain “magic
 words” in its decision.
    We have considered Mr. Pickett’s remaining argu-
 ments and find them unpersuasive. For the reasons above,
 we affirm the Veterans Court’s decision.
                       AFFIRMED
                           COSTS
 No costs.