De Hart v. Collins

Case: 24-2238 Document: 39 Page: 1 Filed: 06/26/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ MAI DE HART, Claimant-Appellant v. DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2024-2238 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 21-6249, Judge Coral Wong Pi- etsch, Judge Grant Jaquith, Judge Joseph L. Toth. ______________________ Decided: June 26, 2026 ______________________ ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claimant-appellant. Also repre- sented by BRITTANI HOWELL, AMY F. ODOM.

MATTHEW JUDE CARHART, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent-appellee.

Also represented by WILLIAM JAMES GRIMALDI, PATRICIA M.

MCCARTHY, BRETT SHUMATE; BRIAN D. GRIFFIN, JONATHAN Case: 24-2238 Document: 39 Page: 2 Filed: 06/26/2026

2 DE HART v. COLLINS

KRISCH, Office of General Counsel, United States Depart- ment of Veterans Affairs, Washington, DC. ______________________ Before PROST, BRYSON, and REYNA, Circuit Judges.

BRYSON, Circuit Judge.

This case involves a veteran’s appeal relating to the ef- fective date of her entitlement to service-related disability benefits. Specifically, the challenge at issue involves the requirements to place a disability determination by a re- gional office of the Department of Veterans Affairs (“DVA”) into appellate status.

I Mai De Hart is a veteran who served in the U.S. Air Force from 1980 to 2008. Appellee Br. 2; J.A. 3. Shortly before her retirement, Ms. De Hart applied for DVA disa- bility benefits for multiple conditions including spondylo- sis, a degenerative spine condition. Id. She underwent a DVA examination. Among other observations, the exam- iner’s report included a reference to her spinal condition, which stated: “Spondylolisthesis with low back and radi- ating pain to the right leg. Evidence of a S1 radiculopa- thy.” 1 J.A. 3–4, 49. A DVA regional office issued Ms. De Hart a rating decision granting service connection for her spine condition under diagnostic code 5239 (spondylolisthe- sis or segmental instability) with an effective date of Feb- ruary 1, 2008, and a 0% rating. J.A. 4, 51, 55–56. The

DE HART v. COLLINS 3 rating decision reported that Ms. De Hart had undergone spinal fusion, and that the medical examiner had diag- nosed lumbar spondylolisthesis, but that the “VA exam showed normal musculature. There was no spasm, abnor- mal movement, tenderness or guarding. There was no pain on motion, pain on repeated motion or pain against mild resistance. The examiner stated it would be speculative to comment further on range of motion, fatigability, incoordi- nation, or flare-ups.” J.A. 55–56. Because the VA exami- nation “showed no spasm or tenderness, a noncompensable evaluation is assigned.” J.A. 56.

In February 2009, Ms. De Hart submitted a notice of disagreement contesting some, but not all, of the determi- nations made by the regional office in its 2008 rating deci- sion. J.A. 4. As it related to the regional office’s spondylolisthesis determination, Ms. De Hart’s notice of disagreement simply stated: “Lumbar spondylolisthesis Grade II[.] I am having severe problems with this condi- tion and it should be evaluated higher.” J.A. 62. Her notice of disagreement made no mention of radiculopathy.

In March 2011, the regional office issued a statement of the case, in which it maintained the prior determination and 0% rating. Ms. De Hart appealed that decision to the Board of Veterans’ Appeals (“the Board”). J.A. 4. The Board ultimately remanded the case to the regional office for further adjudication of several issues, including her spondylolisthesis claim. 2 J.A. 103.

After her case was returned to the regional office, Ms. De Hart underwent another medical examination in March 2019. During that examination, the examiner noted that Ms. De Hart had “moderate right and left lower extremity

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In June 2021 the Board issued a decision upholding Ms. De Hart’s spondylolisthesis ratings of 0% from 2008 through 2016, 10% from 2016 to 2019, and 20% from 2019 onward. J.A. 5. While the Board noted that the regional office had assigned separate ratings for right and left lower extremity radiculopathies in its September 2019 rating de- cision, the Board did not otherwise discuss Ms. De Hart’s radiculopathies. Id. Ms. De Hart appealed the Board’s decision to the Court of Appeals for Veterans Claims (“the Veterans Court”). In that appeal, Ms. De Hart argued that her right leg radicu- lopathy should have been considered part of her 2009 ap- peal, that the Board should have granted her an effective date of 2008 for her right leg radiculopathy condition, and that it was not necessary for her to file a notice of disagree- ment with regard to her right leg radiculopathy either in 2009 or 2019. Over a dissent from Judge Jaquith, the Vet- erans Court rejected those arguments and held that the Board did not err by failing to address the radiculopathy issue in its 2021 decision. J.A. 2–27.

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DE HART v. COLLINS 5

II Our jurisdiction to review decisions of the Veterans Court is limited. We review a decision of the Veterans Court “with respect to the validity of a decision . . . on a rule of law or of any statute or regulation . . . or any inter- pretation thereof . . . that was relied on by the [Veterans] Court in making the decision.” 38 U.S.C. § 7292(a). Our review of those questions is de novo. See, e.g., Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009).

However, we “may not review (A) a challenge to a fac- tual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). We therefore have jurisdiction to hear an ap- peal from the Veterans Court “only to the extent that it raises issues of law. To the extent that [the] appeal raises issues of fact or issues of law applied to fact, we do not have jurisdiction to consider [the] claims.” Ellington v. Peake, 541 F.3d 1364, 1368 (Fed. Cir. 2008).

III A Ms. De Hart argues that because her 2008 medical ex- amination reported evidence of radiculopathy in her right leg, the regional office’s action in assigning her a noncom- pensable rating for spondylolisthesis “implicitly found that Ms. De Hart was unentitled to compensation for radicu- lopathy.” Appellant Br. 18. 3 For that reason, she contends,

The Veterans Court properly rejected that argument.

Even if Ms. De Hart had explicitly raised a claim to right leg radiculopathy in 2008 and the regional office had ex- pressly decided that claim, Ms. De Hart would have had the obligation to raise that issue in her notice of disagree- ment if she wished to challenge the regional office’s deci- sion. A notice of disagreement must “identify the specific determination with which the claimant disagrees” to effec- tively initiate appellate review. Ledford v. West, 136 F.3d 776, 779–80 Fed. Cir. 1998)). Ms. De Hart’s notice of disa- greement as to the rating level for her spondylolisthesis claim in 2009 did not serve to place the later-arising issue plete claim,” including “any other issues that are reasona- bly within the scope of the issues enumerated in the com- plete claim.” Appellant Br. 18.

4 While the regional office granted Ms. De Hart ser- vice connection for radiculopathy in both of her legs in 2019, with the same effective date for both, she challenges that determination only with respect to her right leg radiculopathy. Her 2008 medical examination reported ev- idence of radiculopathy only in her right leg, J.A. 49; it ap- pears that radiculopathy in her left leg was identified for the first time in her 2019 medical examination, J.A. 122.

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DE HART v. COLLINS 7 of the effective date of her radiculopathy claim into appel- late status at that time or excuse her failure to file a notice of disagreement concerning the later-decided downstream elements of her claim. See Grantham v. Brown, 114 F.3d 1156, 1158–59 (Fed. Cir. 1997)).

Ms. De Hart argues that radiculopathy is a symptom of spondylolisthesis, not a separate condition or disability.

For that reason, she argues that her 2009 notice of disa- greement addressing spondylolisthesis was sufficient to set forth a claim to right leg radiculopathy. In support of that argument, Ms. De Hart relies principally on two DVA reg- ulations, 38 C.F.R. § 4.71a and 38 C.F.R. § 4.25. But those regulations do not advance her cause. The first regulation specifies that for “diseases and injuries of the spine,” any “associated objective neurologic abnormalities” should be evaluated “separately under an appropriate diagnostic code.” Note (1) to 38 C.F.R. § 4.71a of the General Rating Formula. Likewise, 38 C.F.R. § 4.25(b) requires that “dis- abilities arising from a single disease entity . . . are to be rated separately as are all other disabling conditions.”

Those regulations indicate that if radiculopathy is consid- ered to be a separate disability from spondylolisthesis, ra- ther than simply a symptom of that spondylolisthesis, it must be rated separately from that condition.

During oral argument, counsel for Ms. De Hart con- ceded that if the Veterans Court was correct in character- izing Ms. De Hart’s radiculopathy as a separate condition, and not a symptom of spondylolisthesis, her 2009 notice of disagreement would not have been sufficient to place her radiculopathy into appealable status. Oral Argument at 11:53–12:24, https://www.cafc.uscourts.gov/oral-argu- ments/24-2238 04062026.mp3.

Contrary to Ms. De Hart’s contention, the DVA regula- tions cited above do not establish that radiculopathy must be treated as a symptom of spondylolisthesis, rather than as a separate condition. Instead, the regulations establish Case: 24-2238 Document: 39 Page: 8 Filed: 06/26/2026

Applying those regulations to the facts of this case, the Veterans Court held that radiculopathy is a separate con- dition, not a symptom, of spondylolisthesis. See J.A. 3, 12– 14. That determination effectively disposed of Ms. De Hart’s request for an earlier effective date for her right leg radiculopathy claim. As the Veterans Court explained: VA’s duty with respect to spine-related neurologi- cal problems was satisfied when, as part of its de- velopment on remand from the Board of the underlying spine claim, it identified the radicu- lopathy, determined its etiology to the spine condi- tion, adjudicated and granted entitlement to service connection, and assigned compensation rat- ings based on distinct criteria, as well as effective dates. At that point, each spine-related radiculopa- thy rating assumed its own adjudicative identity.

If dissatisfied with the ratings or effective dates as- signed, the veteran was free to challenge them through an appeal to the Board . . . . In the absence of such an appeal here, the Board ensured that the Agency’s duties to Ms. De Hart had been satisfied by noting that the 2019 [regional office] decision awarded radiculopathy compensation and that “the evidence of record [did] not indicate the presence of any additional objective neurological abnormalities for which a separate rating is warranted.”

J.A. 14.

Ms. De Hart asks us to overturn the Veterans Court’s characterization of radiculopathy as a separate condition and not a symptom of spondylolisthesis, but that ruling, at bottom, presents a challenge to a factual determination or, at minimum, a challenge to a law or regulation as applied to the facts of a particular case, both of which are outside Case: 24-2238 Document: 39 Page: 9 Filed: 06/26/2026

DE HART v. COLLINS 9 our jurisdiction. See 38 U.S.C. § 7292(d)(2). We therefore reject Ms. De Hart’s contention that the Veterans Court erred in holding held that her 2009 notice of disagreement placed her right leg radiculopathy claim into appellate sta- tus. Her failure to file a notice of disagreement with the regional office’s 2019 decision therefore foreclosed her right to challenge the Board’s decision as to her right leg radicu- lopathy claim.

B Ms. De Hart separately argues that the Veterans Court’s decision in this case “overruled” that court’s prior decisions in Chavis v. McDonough, 34 Vet. App. 1 (2021), and Bailey v. Wilkie, 33 Vet. App. 188 (2021), and asks this court to intervene to correct the error. Appellant Br. 24– 29. According to Ms. De Hart, Chavis held that “the Board had jurisdiction over compensation for the radiculopathy notwithstanding the intervening, unappealed [regional of- fice] decision awarding separate ratings.” Id. at 25. Ms. De Hart contends that there “is no meaningful difference between the circumstances of [her] case and Mr. Chavis’s.” Id. In Bailey, the Veterans Court held that an intervening decision granting additional compensation for a condition that had been appealed did not serve to divest the Board of jurisdiction over the initial appeal. Ms. De Hart argues that the Veterans Court in her case “effectively overruled the Bailey panel” by holding that “each spine-related radiculopathy assumed its own adjudicative identity.” Ap- pellant Br. 27.

The Veterans Court addressed Ms. De Hart’s conten- tion that its decision in this case was contrary to the deci- sions in Chavis and Bailey, and concluded that it was not.

We do not regard the Veterans Court’s decision in this case as inconsistent with that court’s decisions in either Chavis or Bailey.

In Chavis, the veteran was diagnosed with a lumbar spine disability as well as radiculopathy in both legs and Case: 24-2238 Document: 39 Page: 10 Filed: 06/26/2026

Nonetheless, the Veterans Court held that “the issues of increased evaluations for Mr. Chavis’s bilateral lower ex- tremity radiculopathy were part of his claim seeking a higher evaluation for the underlying lumbar spine disabil- ity.” Chavis, 34 Vet. App. at 15.

As the Veterans Court explained in the present case, the Chavis court explicitly noted that it was “leav[ing] for another day the question whether issues of higher evalua- tions for radiculopathy are always part of claims seeking higher evaluations for the underlying spine disability.”

J.A. 7 (quoting Chavis, 34 Vet. App. at 15 n.17). In light of that explicit limitation and the fact that Chavis involved a claim for a rating increase, as opposed to an initial deter- mination of eligibility for benefits, the court considered that Chavis does not conflict with the decision in this case.

The Veterans Court in Bailey held that the DVA, in de- ciding to reduce a veteran’s rating for prostate cancer, failed to factor into its evaluation the record evidence of complications caused by radiation treatment for the vet- eran’s disease. The court held that a claim of secondary service connection for those complications was reasonably raised by the record, 33 Vet. App. at 197–98, and that the Board was required to address the secondary service con- nection issue, id. at 198–203. Ms. De Hart’s case does not involve a claim of secondary service connection, but pre- sents only the question whether her 2009 notice of disa- greement included a claim to right leg radiculopathy and whether she was required to file a notice of disagreement with regard to the regional office’s 2019 decision if she wished to challenge that decision. The Veterans Court’s decision in Bailey does not speak to those issues, and its analysis is not in conflict with the court’s analysis in this case.

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DE HART v. COLLINS 11

IV In summary, Ms. De Hart’s 2009 notice of disagree- ment made clear that she disagreed with several decisions by the regional office, including the 0% rating for spondy- lolisthesis. J.A. 62. However, Ms. De Hart did not disagree with any determination, or lack thereof, relating to radicu- lopathy. Because Ms. De Hart did not at that time indicate disagreement with any specific determination relating to that condition, radiculopathy was not properly placed into appellate status or otherwise addressed by the 2009 notice of disagreement, which was the only notice of disagreement filed by Ms. De Hart. The Veterans Court therefore cor- rectly decided that if Ms. De Hart wished to challenge the regional office’s 2019 decision with regard to her right leg radiculopathy claim, she needed to file a timely notice of disagreement with respect to that decision.

AFFIRMED COSTS No costs.