Case: 23-1525    Document: 26     Page: 1   Filed: 01/30/2024




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

             VINCENT CURTIS CONYERS,
                  Claimant-Appellant

                             v.

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

                        2023-1525
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-4423, Judge Coral Wong Pi-
 etsch, Judge Grant Jaquith, Judge Joseph L. Toth.
                 ______________________

                Decided: January 30, 2024
                 ______________________

    V. C. CONYERS, Uniondale, NY, pro se.

      MILES JARRAD WRIGHT, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
 MCCARTHY; MICHELLE BERNSTEIN, BRIAN D. GRIFFIN, Of-
 fice of General Counsel, United States Department of Vet-
 erans Affairs, Washington, DC.
                   ______________________
Case: 23-1525    Document: 26     Page: 2   Filed: 01/30/2024




 2                                   CONYERS v. MCDONOUGH




  Before MOORE, Chief Judge, REYNA and HUGHES, Circuit
                        Judges.
 REYNA, Circuit Judge.
      Vincent Curtis Conyers, an army veteran, applied for
 employment benefits under the Veteran Readiness and
 Employment program, a program administered by the
 United States Department of Veterans Affairs. After the
 VA denied his application, Mr. Conyers requested an ad-
 ministrative review, which resulted in another decision to
 deny the application. Mr. Conyers then appealed to the
 Board of Veterans’ Appeals, which affirmed the denial de-
 cision. Mr. Conyers appealed the Board decision to the
 United States Court of Appeals for Veterans Claims, which
 affirmed the Board. In reaching its decision, the Veterans
 Court rejected Mr. Conyers’ claim that certain documents
 formed part of the administrative record under the doctrine
 of constructive possession. Because the Veterans Court ap-
 plied an incorrect legal standard in its review of the doc-
 trine of constructive possession, we vacate and remand for
 further proceedings.
                         BACKGROUND
     The U.S. Department of Veterans Affairs (“VA”) ad-
 ministers the Veteran Readiness and Employment pro-
 gram. See Appx1. 1 The Readiness and Employment
 program is designed to provide benefits and services “to
 help veterans integrate themselves into the civilian work
 force.” Id.
     In 2013, Mr. Conyers applied for Readiness and Em-
 ployment program benefits. Appx2. After Mr. Conyers



     1  “Appx” refers to the appendix submitted by Mr. Co-
 nyers and “SAppx” refers to the appendix submitted with
 the Response Brief filed by the government on behalf of the
 VA.
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 CONYERS v. MCDONOUGH                                     3



 submitted various questionnaires and met with a VA coun-
 selor, the VA rejected his claim “because his chosen voca-
 tional goal was not feasible.” Appx2–3. Mr. Conyers
 requested administrative review of the VA’s decision to re-
 ject his Readiness and Employment program claim.
 Appx3. The VA promptly issued a decision finding that
 Mr. Conyers had not identified a reasonably feasible voca-
 tional goal. Id. Mr. Conyers appealed to the Board of Vet-
 erans’ Appeals (“Board”). Id. The Board affirmed the VA’s
 decision that Mr. Conyers’ plan for self-employment was
 “not suitable for his circumstances” and thus denied his
 claim. Id. Mr. Conyers appealed the Board’s decision to
 the U.S. Court of Appeals for Veterans Claims (“Veterans
 Court”). See id.
      During the appeal before the Veterans Court, Mr. Co-
 nyers made multiple requests, including motions to com-
 pel, that certain documents be added to the administrative
 record. See, e.g., Appx12–20. In response, the VA served
 Mr. Conyers amended versions of the record and arranged
 for him to review his file. See, e.g., SAppx1–6. Central to
 this appeal, the VA refused to add other documents to the
 record on grounds that the documents had not been before
 the Board or constructively possessed by the Board. See,
 e.g., Appx57–59; SAppx8–11.
     On April 9, 2020, the Veterans Court denied a motion
 to compel the VA to add the additional documents to the
 record, finding Mr. Conyers’ arguments that the docu-
 ments were constructively possessed by the Board to be
 without merit. Appx61–65 (“April 2020 Order”). In sup-
 port, the Veterans Court cited its decision in Euzebio v.
 Wilkie, 

 (2019) (“Euzebio I”). Appx64. In
 Euzebio I, the Veterans Court held that for a document to
 be deemed constructively possessed by the Board, the ap-
 pellant must establish a “direct relationship” between a
 document and the appellant’s claim (before the Board).
 Euzebio I, 31 Vet. App. at 401–02. Citing Euzebio I and
 referring to its “direct relationship” test, the Veterans
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 4                                   CONYERS v. MCDONOUGH




 Court concluded that Mr. Conyers had “not shown how the
 documents are relevant to the issue on appeal or that he is
 prejudiced.” Appx64. Mr. Conyers filed a motion for recon-
 sideration, which the Veterans Court denied. Appx66–67.
     Subsequent to the April 2020 Order, this court decided
 Euzebio v. McDonough, 

 (Fed. Cir. 2021)
 (“Euzebio II”), which was the appeal of Euzebio I. In
 Euzebio II, we concluded that the “direct relationship”
 standard adopted by the Veterans Court in Euzebio I was
 erroneous. 

. We held that the correct standard
 for constructive possession is “relevance and reasonable-
 ness.” 

 Citing Euzebio II, Mr. Conyers moved the Vet-
 erans Court for reconsideration of the April 2020 Order.
 Appx81–87.
     In March 2021, the Veterans Court issued an order
 that denied the motion for reconsideration and noted that
 “any argument that Mr. Conyers has concerning what ma-
 terials may be considered constructively before the Board
 can be dealt with during the [Veterans] Court’s review of
 the merits of his appeal.” Appx88.
     In August 2022, the Veterans Court issued a single-
 judge decision affirming the Board’s rejection of Mr. Co-
 nyers’ appeal. Conyers v. McDonough, No. 17-4423, 

, at *1, *4 (Vet. App. Aug. 26, 2022). As to the
 issue of constructive possession, the decision stated the
 completeness of the record had “already been adjudicated
 by the [Veterans] Court’s April 9, 2022, [sic] order wherein
 the [Veterans] Court determined that [the] VA satisfied its
 obligation to provide a complete [record].” Id. at *4.
      In September 2022, Mr. Conyers moved for a panel de-
 cision, arguing that the Veterans Court had overlooked this
 court’s decision in Euzebio II. Appx255–56 & n.40. His
 request for a panel decision was granted, but the panel af-
 firmed the single-judge decision without addressing or
 mentioning Euzebio II. Appx7. The panel concluded that
 Mr. Conyers had failed to demonstrate that “the single-
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 CONYERS v. MCDONOUGH                                        5



 judge order overlooked or misunderstood a fact or point of
 law prejudicial to the outcome of the petition” or that “there
 [was] any conflict with precedential decisions of the Court.”
 Id.
     Mr. Conyers timely appeals. We have jurisdiction un-
 der 

(c).
                    STANDARD OF REVIEW
      Our jurisdiction to review decisions of the Veterans
 Court is limited. Gazelle v. Shulkin, 

 (Fed. Cir. 2017). We review de novo challenges to the va-
 lidity of statutes or regulations, and we interpret constitu-
 tional and statutory provisions “to the extent presented
 and necessary to a decision.” 

(c); Gazelle,
 

. Whether the Veterans Court applied a
 correct legal standard is a question of law that we review
 on a de novo basis. Euzebio II, 

 (quoting
 Sneed v. Shinseki, 

 (Fed. Cir. 2013));
 Skaar v. McDonough, 

 (Fed. Cir. 2022).
 We do not have jurisdiction to reweigh factual findings
 reached by the Board, or to reach our own findings of fact
 in the first instance. 

(d)(2); Deloach v.
 Shinseki, 

 (Fed. Cir. 2013).
                         DISCUSSION
     Mr. Conyers raises two principal issues on appeal, but
 we need only address whether the Veterans Court applied
 the correct legal standard for constructive possession. This
 is a legal question that we review de novo. See Skaar, 

 (“[W]hether the Veterans Court applied the
 correct legal standard for equitable tolling is a question of
 law we review de novo.”). For the reasons stated below, we
 conclude that the Veterans Court applied an erroneous le-
 gal standard.
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 6                                      CONYERS v. MCDONOUGH




     The concept of constructive possession arises in many
 legal contexts, including criminal law and property law. 2
 In the context of veterans law, the constructive possession
 doctrine generally applies such that “evidence that is
 within the Secretary’s control and could reasonably be ex-
 pected to be a part of the record before the Secretary and
 the Board[] is constructively part of the administrative rec-
 ord.” Euzebio II, 

 (internal quotations and
 citations omitted); see also Lang v. Wilkie, 

 (Fed. Cir. 2020); Golz v. Shinseki, 

 (Fed. Cir. 2010).
     At the time when Mr. Conyers filed before the Veterans
 Court his motion to compel the addition of documents to
 the administrative record, Euzebio II had not issued. The
 Veterans Court applied its holding in Euzebio I and re-
 jected Mr. Conyers’ assertion that the documents were con-
 structively possessed by the VA and Board. Appx64.
     Euzebio I involved a public document that was pub-
 lished while Mr. Euzebio’s case was pending before the
 Board and raised the question of whether the Veterans
 Court should have deemed the document to have been con-
 structively possessed by the Board when it reviewed
 Mr. Euzebio’s appeal. Euzebio I, 31 Vet. App. at 402.
 Based on its review of prior Veterans Court opinions, the
 Veterans Court concluded that for a document to be


     2    Generally, constructive possession means “[c]on-
 trol or dominion over a property without actual possession
 or custody of it.” Possession, Black’s Law Dictionary (11th
 ed. 2019) (see sub-definition on “constructive possession”);
 see also 73 C.J.S. Property § 54 (stating, in the context of
 real property law, that “[c]onstructive possession describes
 the situation in which [a] person who is not in actual phys-
 ical possession of [the] object can nevertheless be consid-
 ered in legal possession of the object if it is subject to his or
 her dominion and control”).
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 CONYERS v. MCDONOUGH                                       7



 considered part of the record under a theory of constructive
 possession, a veteran must show a “direct relationship” be-
 tween the document and a claim. Id. at 401. The Veterans
 Court rejected Mr. Euzebio’s request to add the document
 to the administrative record on grounds that he failed to
 demonstrate a direct relationship between the document
 and his claim. Id. at 402. This is essentially the same ra-
 tionale the Veterans Court expressed in this case in its
 April 2020 Order denying Mr. Conyers’ motion to compel.
 See Appx64. Mr. Euzebio appealed to this court challeng-
 ing the Veterans Court’s statement of the legal standard
 applicable for constructive possession.
     On appeal, we reviewed the legal standard applied by
 the Veterans Court and held that the direct relationship
 test was “without basis in relevant statute or regulation.”
 Euzebio II, 

. We reasoned that the Veter-
 ans Court had improperly imported the “direct relation-
 ship” requirement from earlier Veterans Court opinions,
 and that the requirement was otherwise “untethered” from
 applicable legal standards. 

 We held that the correct
 standard for constructive possession is whether the evi-
 dence is “relevant and reasonably connected to the vet-
 eran’s claim.” 

 (internal quotations and citations
 omitted). We noted that requiring a showing of relevance
 and not a direct relationship “makes sense in light of the
 VA’s statutory duty to assist veterans in developing the ev-
 idence necessary to substantiate their claims.” 

 (inter-
 nal quotations and citations omitted). The constructive
 possession doctrine provides a safeguard that ensures all
 record documents reasonably expected to be part of a vet-
 eran’s claim are included in the administrative record. 

 at 1325–26.
      After Euzebio II was issued, Mr. Conyers repeatedly
 raised the decision to the Veterans Court’s attention. See,
 e.g., Appx117–19, Appx255–56. But the Veterans Court ul-
 timately did not address the issue, failing to even mention
 Euzebio II in any subsequent decisions. For example, in its
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 8                                   CONYERS v. MCDONOUGH




 order addressing Mr. Conyers’ request for reconsideration,
 the Veterans Court deferred the issue, stating it would be
 “dealt with” in its review of the merits of the appeal.
 Appx88. But the issue was not dealt with in the review of
 the merits. In the single-judge final merits decision, the
 Veterans Court simply asserted that the dispute had al-
 ready been addressed by the Veterans Court in its April
 2020 Order, an order that predated Euzebio II. See Co-
 nyers, 

, at *4. Nor did the Veterans Court
 confront the issue in December 2022 when faced with
 Mr. Conyers’ request for panel rehearing, which again
 urged review of Euzebio II. See Appx9; Appx255–56.
      The government argues that the Veterans Court’s reli-
 ance on Euzebio I was not legal error because the Veterans
 Court’s April 2020 Order provides that Mr. Conyers had
 failed to show how the documents are “relevant” or that he
 is prejudiced. Appellee Br. 11–12; see also Appx64. Accord-
 ing to the government, this reference to “relevant” shows
 that the April 2020 Order was “consistent with” the correct
 legal standard this court later articulated in Euzebio II.
 Appellee Br. 11–12. The government also argues that if
 there was any error, such error was harmless and without
 prejudice. See, e.g., id. at 13. We are not persuaded.
      In the April 2020 Order, the Veterans Court concluded
 that Mr. Conyers “has not shown how the documents are
 relevant to the issue on appeal or that he is prejudiced.”
 Appx64. At a minimum, the government asks us to con-
 flate Euzebio I and Euzebio II by mixing and matching the
 concepts of “relevance” and “direct relationship.” The gov-
 ernment overlooks that in Euzebio II, we rejected as “fa-
 cially incorrect” the argument made by the government
 that “‘direct relationship’ and ‘relevance’ are more or less
 the same standard.” See Euzebio II, 

.
 There is nothing in the April 2020 Order that shows the
 Veterans Court recognized a distinction between the “rele-
 vance” and “direct relationship” standards. There is no ba-
 sis to conclude that the Veterans Court’s pre-Euzebio II
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 CONYERS v. MCDONOUGH                                      9



 order applied the standard we later articulated in
 Euzebio II.
     Regarding the government’s assertion that any error
 by the Veterans Court was harmless, we lack jurisdiction
 to apply the facts to the law and thus to assess whether,
 under the correct legal standard, the Board had construc-
 tive possession of the requested documents. This is a ques-
 tion for the Veterans Court. Id.; see also 

(d)(2).
     We hold that the Veterans Court applied an erroneous
 legal standard for constructive possession. We therefore
 vacate the decision of the Veterans Court and remand with
 instructions that the Veterans Court apply the correct
 standard set forth in Euzebio II in its review of Mr. Co-
 nyers’ claim that certain documents be made part of the
 administrative record and considered in the review of his
 appeal of the denial of his application for Readiness and
 Employment program benefits.
                         CONCLUSION
     We hold that the Veterans Court applied an incorrect
 standard in its constructive possession analysis. We vacate
 the decision of the Veterans Court and remand for the Vet-
 erans Court to apply the legal standard that we articulated
 in Euzebio II. Because we vacate and remand, we need not
 reach Mr. Conyers’ other arguments.
                VACATED AND REMANDED
                           COSTS
 Costs to Mr. Conyers.