Case: 23-1090    Document: 59    Page: 1   Filed: 02/15/2024




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                 ROBERT L. STINSON,
                  Claimant-Appellant

                            v.

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

                       2023-1090
                 ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 20-8342, Judge Joseph L. Toth.
                 ______________________

                Decided: February 15, 2024
                 ______________________

     THOMAS E.F. STRONG, Veterans Legal Advocacy Group,
 Arlington, VA, argued for claimant-appellant. Also repre-
 sented by HAROLD HAMILTON HOFFMAN, III.

     MATTHEW JUDE CARHART, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, argued for respondent-appellee.
 Also represented by ASHLEY AKERS, BRIAN M. BOYNTON,
 MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; BRIAN D.
 GRIFFIN, JONATHAN KRISCH, Office of General Counsel,
 United States Department of Veterans Affairs, Washing-
 ton, DC.
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 2                                    STINSON v. MCDONOUGH




                  ______________________

      Before DYK, REYNA, and STARK, Circuit Judges.
 REYNA, Circuit Judge.
     This is an appeal from the U.S. Court of Appeals for
 Veterans Claims, affirming the Board of Veterans’ Appeals’
 denial of Mr. Robert Stinson’s request for service connec-
 tion for his blastic plasmacytoid dendritic cell neoplasm.
 Because the Veterans Court impermissibly found facts in
 the first instance when reviewing the Board’s decision, we
 vacate and remand.
                         BACKGROUND
     Mr. Stinson served in the U.S. Army from 1963 to 1966.
 J.A. 2. In 1964, he deployed to Germany and while there,
 the Army treated Mr. Stinson for various conditions, which
 the parties interchangeably refer to as his “in-service
 symptoms” or “in-service conditions.” J.A. 917; J.A. 921–
 22; J.A. 931. These in-service symptoms began in January
 1964, when Mr. Stinson was seen for a rash on his “poste-
 rior cervical area,” also known as the back of the neck. J.A.
 921. In May 1964, Mr. Stinson experienced early dermato-
 phytosis, known as ringworm. J.A. 922. Mr. Stinson was
 also treated twice for nausea. J.A. 921. Finally, in August
 1966, Mr. Stinson was seen for recurrent nosebleeds, in-
 cluding an irritated lesion in the left turbinates, which are
 membrane-covered bony or cartilaginous plates on the
 walls of the nasal chambers. J.A. 917; J.A. 931; Appellee
 Br. 2.
     In the early 2000s, Mr. Stinson was diagnosed with
 prostate cancer. J.A. 113. Around this time, Mr. Stinson’s
 physicians also noted “mild leukocytopenia” (low white
 blood cell count) and “mild thrombocytopenia” (low level of
 platelets), collectively, Mr. Stinson’s “2002 symptoms.”
 J.A. 615.
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 STINSON v. MCDONOUGH                                        3



      In 2012, Mr. Stinson was diagnosed with blastic
 plasmacytoid dendritic cell neoplasm (“BPDCN”), a rare
 and aggressive form of cancer that can start in the skin,
 infiltrate bone marrow, and progress into acute mye-
 logenous leukemia (“AML”). J.A. 109; J.A. 114; J.A. 124;
 J.A. 580; J.A. 615. The location of the lesion which gave
 rise to Mr. Stinson’s BPDCN diagnosis is not clear from the
 record. Some medical documentation states it was on Mr.
 Stinson’s “back shoulder” while other medical documents
 list it on his “upper back.” See J.A. 117; J.A. 119; J.A. 589;
 J.A. 590; J.A. 806.
      In 2012, Mr. Stinson sought service connection for his
 BPDCN from the U.S. Department of Veterans Affairs
 (“VA”) based on alleged exposure to carcinogens during his
 service in Germany in the 1960s. J.A. 2. To support his
 claim, in 2016, Mr. Stinson provided the VA with a letter
 from a private oncology nurse practitioner. J.A. 573. The
 letter stated that “[t]hough we cannot confirm the link be-
 tween Mr. Stinson’s cancer and past exposures to carcino-
 gens, it is possible.” J.A. 573. The letter also stated that
 “[l]ymphomas and leukemias often occur after age 60, pos-
 sibly from an exposure 30-40 years prior,” and that “[t]he
 majority of cancers are thought to occur due to environ-
 mental exposures over time.” J.A. 573. The letter did not
 discuss Mr. Stinson’s in-service symptoms, his 2002 symp-
 toms, or the location of the lesion giving rise to his BPDCN
 diagnosis. J.A. 573.
     In 2018, the Board of Veterans’ Appeals (“Board”) is-
 sued a decision on Mr. Stinson’s claim for service connec-
 tion. J.A. 143. The Board noted that a remand was
 necessary for Mr. Stinson to obtain a VA medical examina-
 tion and a medical opinion on the issue of whether his
 BPDCN “was incurred in or caused by a disease, injury, or
 event in service.” J.A. 143. In 2019, following an examina-
 tion of Mr. Stinson, a VA examiner provided a medical
 opinion (“2019 VA medical opinion”), which concluded that
 Mr. Stinson’s BPDCN was “less likely than not” caused by
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 4                                     STINSON v. MCDONOUGH




 Mr. Stinson’s service in Germany. J.A. 109; J.A. 111. The
 VA examiner summarily noted in her opinion that “[t]here
 is no evidence found in the record that this [sic] issues
 started prior to 2011.” 1 J.A. 111. The VA examiner also
 reasoned that “[b]ased on the survival rate at 14 months
 and the aggressiveness of [BPDCN], it would be highly im-
 probable that this started in the 1960’s.” 2 J.A. 109; J.A.
 111. The 2019 VA medical opinion did not explicitly dis-
 cuss Mr. Stinson’s in-service symptoms, his 2002 symp-
 toms, or the location of the lesion giving rise to Mr.
 Stinson’s BPDCN diagnosis. J.A. 109–11.
     In 2020, the Board denied Mr. Stinson’s claim for ser-
 vice connection for BPDCN. J.A. 17. The Board deter-
 mined that the preponderance of the evidence was against
 finding that Mr. Stinson’s BPDCN “began during active



     1    Although it is not clear from the VA examiner’s
 opinion what issues she is referring to when she states
 “this [sic] issues,” we read this to mean Mr. Stinson’s
 BPDCN. Also, it is not readily apparent why the VA exam-
 iner concluded that the year 2011 is the earliest possible
 date of BPDCN manifestation. See J.A. 109–11. She noted
 earlier in her opinion that Mr. Stinson was diagnosed with
 BPDCN in July 2012. J.A. 109.
     2    While not at issue in this appeal, it is worth noting
 the VA examiner’s conclusion that Mr. Stinson’s BPDCN
 likely did not start in the 1960s rests largely on her point
 that the median overall survival rate of BPDCN is 14
 months. Interestingly, however, at the time the VA exam-
 iner issued her opinion in 2019, Mr. Stinson had already
 been living with BPDCN for almost seven years. Addition-
 ally, Mr. Stinson’s counsel noted at oral argument that Mr.
 Stinson was still with us as of the date of oral argument,
 almost twelve years after his initial BPDCN diagnosis, far
 surpassing the median overall survival rate for this dis-
 ease. See Oral Arg. 11:29–11:42.
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 STINSON v. MCDONOUGH                                       5



 service, or [was] otherwise related to an in-service injury,
 event, or disease.” J.A. 15. Notably, the Board, like the
 2019 VA medical opinion and the 2016 nurse practitioner
 letter, did not explicitly address Mr. Stinson’s in-service
 symptoms, his 2002 symptoms, or the location of the lesion
 giving rise to Mr. Stinson’s BPDCN diagnosis. See J.A. 13–
 17; J.A. 109; J.A. 573.
     Mr. Stinson appealed the Board’s decision to the U.S.
 Court of Appeals for Veterans Claims (“Veterans Court”),
 which affirmed the Board’s denial of Mr. Stinson’s claim for
 service connection for BPDCN. J.A. 1; J.A. 6. Mr. Stinson
 argued that the Board should have sought clarification
 from Mr. Stinson’s nurse practitioner concerning her 2016
 letter. J.A. 3.
      Mr. Stinson also raised a new argument on appeal be-
 fore the Veterans Court. According to Mr. Stinson, the
 2019 VA medical opinion, as well as the Board’s decision,
 were inadequate because both failed to address his full
 medical history prior to his 2012 BPDCN diagnosis, specif-
 ically his in-service symptoms and his 2002 symptoms.
 J.A. 4–5; J.A. 40–42. According to Mr. Stinson, his in-ser-
 vice symptoms, such as his January 1964 rash, were in the
 same place as the lesion discovered to be BPDCN. J.A. 41.
 Mr. Stinson also noted that his 2002 symptoms, i.e., his low
 white blood cell count and low platelet count, pre-dated his
 BPDCN. J.A. 40. Thus, according to Mr. Stinson, both the
 in-service symptoms and his 2002 symptoms were “espe-
 cially relevant” and cut against the 2019 VA medical opin-
 ion’s conclusion that “there is no evidence found in the
 record that [Mr. Stinson’s] issues started prior to 2011.”
 J.A. 40.
     The Veterans Court rejected Mr. Stinson’s argument
 concerning clarification of the nurse practitioner letter
 from 2016, finding no basis for clarification under Carter v.
 Shinseki, 

 (2014) and Savage v.
 Shinseki, 

 (2011). J.A. 3. The
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 6                                    STINSON v. MCDONOUGH




 Veterans Court then considered Mr. Stinson’s newly raised
 argument but ultimately disagreed with it. J.A. 4–5. The
 Veterans Court affirmed the Board’s denial of Mr. Stinson’s
 claim for service connection for BPDCN. J.A. 6.
     Mr. Stinson now appeals, arguing that the Veterans
 Court exceeded its statutory authority when it improperly
 found facts in the first instance concerning Mr. Stinson’s
 BPDCN lesion and in-service symptoms. Appellant Br. 13–
 16. Mr. Stinson separately argues that Carter v. Shinseki,
 

 (2014) improperly narrows the VA’s stat-
 utory duty to reasonably assist veterans in proving their
 cases. Appellant Br. 19–22. We have jurisdiction pursuant
 to 

(c).
                        DISCUSSION
                              I
     We have limited appellate jurisdiction over appeals
 from the Veterans Court. Sullivan v. McDonald, 

, 788–89 (Fed. Cir. 2016). This court may review legal
 questions, including the validity of any statute or regula-
 tion or any interpretation thereof. 

(c).
 This court may not, however, review factual determina-
 tions or application of law to fact, except to the extent an
 appeal presents a constitutional issue. 

 § 7292(d)(2).
      Whether the Veterans Court exceeded its jurisdiction
 is a question of law that this court reviews de novo. Sulli-
 van, 815 F.3d at 788–89; Bonner v. Nicholson, 

, 1326–27 (Fed. Cir. 2007). “This court routinely exer-
 cises jurisdiction to consider whether the Veterans Court
 exceeded its jurisdiction in making de novo fact-finding.”
 Tadlock v. McDonough, 

, 1332–33 (Fed. Cir.
 2021) (collecting cases).
                              II
     Mr. Stinson argues that the Veterans Court exceeded
 its statutory authority when it found facts in the first
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 STINSON v. MCDONOUGH                                        7



 instance concerning (1) the location of the lesion giving rise
 to his BPDCN diagnosis and (2) his in-service symptoms.
 Appellant Br. 14–16. We agree with Mr. Stinson’s position,
 and for this reason, vacate and remand. 3
     The Veterans Court has no statutory authority to make
 factual findings in the first instance. 

(c);
 Deloach v. Shinseki, 

 (Fed. Cir. 2013).
 The Veterans Court also has no statutory authority to
 weigh the evidence in the first instance. Tadlock, 

; Deloach, 

. As we explained in
 Tadlock,
         [w]hen questions of fact are open to debate,
         veterans are entitled to present whatever
         evidence and arguments they have to the
         agency charged with administering veter-
         ans’ benefits and possessed with the exper-
         tise to render informed judgments and to
         have that evidence and those arguments
         considered by that agency in the first in-
         stance.
 Tadlock, 

 (emphasis added). Whether an
 injury is service connected is a question of fact delegated to
 the VA for consideration in the first instance. 38 U.S.C.



     3   We need not reach Mr. Stinson’s argument con-
 cerning Carter because the Veterans Court also relied on
 Savage to reject Mr. Stinson’s contention regarding the
 VA’s duty to seek clarification. J.A. 3. Mr. Stinson does
 not challenge the application of Savage or request us to
 overturn Savage in his briefing. In fact, Mr. Stinson relied
 on Savage in his argument before the Veterans Court. J.A.
 33–36. We see no error with respect to the Veterans
 Court’s disposition regarding the nurse practitioner’s let-
 ter.
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 8                                    STINSON v. MCDONOUGH




 §§ 5100–5109(b); 

(a); Stevens v. Shinseki,
 

 (Fed. Cir. 2011).
     Before the Veterans Court, Mr. Stinson argued that the
 Board’s analysis and the 2019 VA medical opinion were in-
 adequate because they failed to consider his full medical
 history prior to his BPDCN diagnosis, including his in-ser-
 vice symptoms and his 2002 symptoms. J.A. 4–5. Accord-
 ing to Mr. Stinson, his in-service symptoms and 2002
 symptoms were relevant to his BPDCN lesion and thus
 should have been considered by the Board and the VA med-
 ical examiner. J.A. 40–41. Mr. Stinson noted that they
 were relevant because (1) his 2002 symptoms preceded his
 BPDCN diagnosis and (2) his in-service January 1964 rash
 was in the same place as the lesion that gave rise to his
 BPDCN diagnosis. J.A. 40–41. Mr. Stinson argued that
 these symptoms show that his BPDCN, a rare form of can-
 cer that affects a patient’s blood and skin, preceded 2011,
 which is contrary to the 2019 VA medical opinion’s conclu-
 sion that there was no evidence of BPDCN prior to 2011.
 J.A. 40–41. The Veterans Court rejected this argument,
 explaining that Mr. Stinson failed to show that his in-ser-
 vice symptoms and 2002 symptoms were relevant to his
 BPDCN diagnosis. J.A. 4–5. The Veterans Court’s conclu-
 sion, however, with respect to the January 1964 rash, rests
 upon impermissible factual determinations that require
 vacatur and remand.
     We agree with Mr. Stinson that the Veterans Court im-
 permissibly found as a matter of fact, and in the first in-
 stance, that Mr. Stinson’s January 1964 rash was in a
 different location than his BPDCN lesion and thus irrele-
 vant to Mr. Stinson’s claim for service connection for
 BPDCN. According to the Veterans Court, “[t]he record
 does not support [Mr. Stinson’s] contention” that his “in-
 service skin lesion was in the same place as the lesion later
 discovered to be BPDCN.” J.A. 5. The Veterans Court
 noted that Mr. Stinson’s January 1964 rash was located on
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 STINSON v. MCDONOUGH                                      9



 his “posterior cervical area,” i.e., Mr. Stinson’s neck. 4
 J.A. 5. The Veterans Court then noted that this condition
 was not identified on Mr. Stinson’s “shoulder, which is
 where the BPDCN began.” J.A. 5. The Veterans Court
 later noted that Mr. Stinson “states (incorrectly) that the
 skin lesion occurred in the same place as his BPDCN le-
 sion.” J.A. 5. The Veterans Court concluded that Mr. Stin-
 son “provides no medical evidence or argument that his
 [service treatment records] are relevant evidence of carcin-
 ogen exposure in service.” J.A. 5.
      However, the record is unclear as to whether the lesion
 that gave rise to Mr. Stinson’s BPDCN diagnosis was lo-
 cated on his shoulder or his upper back. For example, Mr.
 Stinson’s oncologist stated the BPDCN lesion first began
 on his “upper back.” J.A. 806. And, as Mr. Stinson notes,
 a lesion located on his upper back may have overlapped
 with the back of his neck, the location of his January 1964
 rash. Appellant Br. 17–18; J.A. 931. Thus, because the
 location of the lesion giving rise to Mr. Stinson’s BPDCN
 diagnosis is open to debate, it was impermissible for the
 Veterans Court to conclude in the first instance that it was
 located on Mr. Stinson’s shoulder and thus not located in
 the same location as Mr. Stinson’s January 1964 rash. By
 doing so, the Veterans Court exceeded its statutory author-
 ity by engaging in de novo fact-finding. Tadlock, 5 F.4th at
 1337–38.
     We also determine that the Veterans Court exceeded
 its statutory authority when it improperly weighed evi-
 dence in the first instance. J.A. 5. “The Court of Appeals


    4    The Veterans Court referred to the posterior cervi-
 cal area rash as a June 1964 rash. J.A. 5. We read this as
 a typographical error since Mr. Stinson’s service treatment
 records reflect a January 1964 date, see J.A. 921, and both
 parties on appeal refer to this rash as occurring in Janu-
 ary 1964. Appellant Br. 17; Appellee Br. 2.
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 10                                     STINSON v. MCDONOUGH




 for Veterans Claims, [even] as part of its clear error review,
 must review the Board’s weighing of the evidence; it may
 not weigh any evidence itself.” Tadlock, 

 (quoting Deloach, 

) (alteration in original).
 Here, no medical expert nor the Board explicitly addressed
 whether Mr. Stinson’s in-service symptoms were relevant
 to Mr. Stinson’s BPDCN diagnosis such that they evinced
 an earlier BPDCN start date than 2011. Before the Veter-
 ans Court, Mr. Stinson argued for the first time on appeal
 that there was a connection between his in-service symp-
 toms and his BPDCN diagnosis. J.A. 5. The Veterans
 Court recognized this argument, stating that Mr. Stinson
 “states (incorrectly) that the skin lesion occurred in the
 same place as his BPDCN lesion and that the leukopenia
 and thrombocytopenia [2002 symptoms] preceded the
 BPDCN.” J.A. 5. The Veterans Court then concluded that
 the location of Mr. Stinson’s in-service symptoms and the
 date of onset of his 2002 symptoms provided “little support”
 for Mr. Stinson’s theory of service connection for BPDCN.
 J.A. 5. This determination, with respect to the in-service
 symptoms, was error. 5



      5   In his opening brief filed before this court, Mr. Stin-
 son did not argue that the Veterans Court engaged in fact-
 finding or weighing of evidence with respect to the 2002
 symptoms. See Appellant Br. 14–18 (arguing impermissi-
 ble factfinding regarding the locations of his January 1964
 rash and BPDCN lesion, the locations of his 1966 lesion
 and cancerous lesion, and relevancy of his nosebleeds to his
 carcinogenic exposure). At oral argument, Mr. Stinson ar-
 gued during his opening and rebuttal that the 2002 symp-
 toms of a cystic mass, prostate cancer, leukopenia, and
 thromboctyopenia are relevant to linking his BPDCN to his
 in-service symptoms. Oral Arg. 2:29–2:43, 3:14–3:41,
 10:40–11:00, 26:57–28:38. This argument, however, is not
 present in his opening brief and is therefore forfeited.
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 STINSON v. MCDONOUGH                                       11



      Here, Mr. Stinson’s in-service symptoms, such as his
 January 1964 rash, affected certain portions of Mr. Stin-
 son’s skin. Whether these symptoms, and the timing of
 these symptoms, are connected to Mr. Stinson’s BPDCN, a
 very rare form of cancer that can manifest in the skin and
 can spread to the blood, is a factual question for the medical
 experts, whose opinions are then weighed by the Board.
 See Tadlock, 

; see also Deloach, 

. The Veterans Court, in turn, reviews the Board’s
 weighing of this evidence. Tadlock, 

. The
 Veterans Court has no statutory authority to weigh Mr.
 Stinson’s evidence in the first instance. See 

 It is espe-
 cially problematic that the Veterans Court reached this
 conclusion based on its own factfinding. Again, no medical
 expert, nor the Board, explicitly discussed whether Mr.
 Stinson’s in-service symptoms are evidence of an earlier
 BPDCN start date than 2011.
     The government argues that the Veterans Court was
 within its statutory authority to assess whether the record
 supported Mr. Stinson’s newly raised argument concerning
 the relevancy of his in-service symptoms in relation to his
 BPDCN diagnosis. Appellee Br. 5. We recognize that Mr.
 Stinson raised for the first time on appeal to the Veterans
 Court that his in-service symptoms evinced a possible man-
 ifestation of his BPDCN prior to 2011. When presented
 with a new issue on appeal, the Veterans Court can exer-
 cise sound discretion to reject the newly raised argument
 under the doctrine of issue exhaustion. Maggitt v. West,
 

, 1377–78 (Fed. Cir. 2000). The Veterans
 Court may also entertain the new argument. 

.
 And it may appropriately assess whether the record con-
 tains sufficient evidence, as a matter of law, to support a



 Evans v. Bldg. Materials Corp. of Am., 

 (Fed. Cir. 2017) (finding argument “is too late” when not
 raised until the reply brief and oral argument).
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 12                                   STINSON v. MCDONOUGH




 particular argument. Finally, the Veterans Court may con-
 sider whether in light of this new argument, the Board’s
 error, if any, was prejudicial. 38 U.S.C § 7261(b)(2). 6 What
 the Veterans Court cannot do, however, is find facts or
 weigh evidence in the first instance when entertaining a
 newly raised issue, as it did in this case. Tadlock, 5 F.4th
 at 1337–38.
     When the Veterans Court acts as a fact finder, the Vet-
 erans Court exceeds its statutory authority and frustrates
 one of the reasons for which it entertains newly raised is-
 sues on appeal—to provide the veteran with a “user
 friendly” claims process. Maggitt, 

. As we
 explained in Maggitt, the Veterans Court may want to con-
 sider a newly raised issue on appeal, as opposed to dismiss-
 ing it outright, because veterans often face challenges
 when presenting their case before the VA or before the
 Board, such as not obtaining independent counsel until af-
 ter the Board reaches its final decision. 

 7 However, if
 in reviewing a newly raised issue, the Veterans Court finds
 facts in the first instance, the Veterans Court deprives the
 veteran of the “user friendly” system Congress intended.
 

 Specifically, the Veterans Court denies the veteran of
 the opportunity to present evidence before the trier of fact
 that has the expertise and responsibility of determining
 such factual issues. The Veterans Court also denies the
 veteran of any effective appellate review of such factual is-
 sues. Thus, in considering a new argument on appeal, the
 Veterans Court should appropriately review the record and



      6  The Veterans Court did not conduct a prejudicial
 error analysis in this case. J.A. 1–6; see also Oral
 Arg. 00:45–3:34; 5:55–7:31; 18:49–20:18.
     7   Appellant’s counsel noted at oral argument that
 Mr. Stinson was not represented by legal counsel before the
 VA or the Board and was ill at that time. See Oral
 Arg. 3:44–4:20.
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 STINSON v. MCDONOUGH                                     13



 remand to the appropriate body any factual questions open
 to debate. 38 U.S.C § 7252(a).
     The government argues that any error by the Veterans
 Court was harmless. See Oral Arg. 18:11–18:47. We reject
 this argument as speculative. Moreover, this inquiry falls
 outside of our appellate jurisdiction. To find harmless er-
 ror in this instance would require a factual determination
 or an application of a law to the facts, which we cannot do.
 

(d)(2); cf. Andrews v. Nicholson, 

 (Fed. Cir. 2005) (determining that the Veterans
 Court’s interpretation of a case, a question of law, was
 harmless error).
                          CONCLUSION
     For the reasons discussed above, the Veterans Court
 exceeded its statutory authority when it found facts and
 weighed evidence in the first instance. We thus vacate the
 decision of the Veterans Court and remand the case. On
 remand, the Veterans Court is instructed to remand the
 case to the Board for further factual development con-
 sistent with this opinion, including whether Mr. Stinson’s
 in-service symptoms support a manifestation of BPDCN
 earlier than 2011.
                VACATED AND REMANDED
                            COSTS
 Costs for Mr. Stinson.