Veteranclaims’s Blog

July 7, 2022

FedCir. Application; 38 C.F.R. § 3.655(a)–(b); did not raise this argument before the
Veterans Court, he forfeited it. Emenaker v. Peake, 551 F.3d 1332, 1337 (Fed. Cir. 2008); Mr. Gainer’s claim is not an original claim; it is a claim for increase. That means the next sentence of § 3.655(b) controls the outcome of Mr. Gainer’s claim: “When the examination was scheduled in conjunction with . . . a claim for increase, the claim shall be denied.” 38 C.F.R § 3.655(b);

Filed under: Uncategorized — veteranclaims @ 12:13 am

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit


REGINALD D. GAINER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2022-1604


Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-6135, Judge Scott Laurer.


Decided: July 6, 2022


REGINALD D. GAINER, Panama City, FL, pro se.
ANNE DELMARE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY.


NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit


REGINALD D. GAINER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2022-1604


Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-6135, Judge Scott Laurer.


Decided: July 6, 2022


REGINALD D. GAINER, Panama City, FL, pro se.
ANNE DELMARE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY.


Case: 22-1604 Document: 12 Page: 1 Filed: 07/06/2022
2 GAINER v. MCDONOUGH
Before MOORE, Chief Judge, PROST and HUGHES, Circuit
Judges.
PER CURIAM.
Reginald D. Gainer sought an increased rating for his
service-connected disability. The Board of Veterans’ Appeals
(“Board”) denied the claim, and the Court of Appeals
for Veterans Claims (“Veterans Court”) affirmed.
Mr. Gainer appeals. We affirm.
BACKGROUND
Mr. Gainer was granted service connection for a thoracolumbar
spine disability, rated 40 percent disabling as of
August 2006. After Mr. Gainer filed a claim seeking an
increased rating in December 2016, he was scheduled for a
medical examination in January 2017. And although he
failed to appear for his appointment without explanation,
he was scheduled for a second examination in April 2019.
Mr. Gainer declined it.
The Board subsequently denied Mr. Gainer entitlement
to a rating in excess of 40 percent as a matter of law.
Specifically, under 38 C.F.R. § 3.655, “a claim for increase
. . . shall be denied” when “a claimant fails to report
to an examination” without good cause and entitlement to
that claim “cannot be established or confirmed without”
that examination. 38 C.F.R. § 3.655(a)–(b). Applying this
regulation, the Board found that Mr. Gainer failed to establish
good cause for both missed examinations and that
his entitlement to an increased rating could not be established
without one. S. App’x 11.1
Mr. Gainer appealed to the Veterans Court, arguing
that the Board “failed to support its finding that [he] lacked
1 “S. App’x” refers to the supplemental appendix
filed by Appellee. “App’x” refers to the appendix filed by
Appellant.
Case: 22-1604 Document: 12 Page: 2 Filed: 07/06/2022
GAINER v. MCDONOUGH 3
good cause” for missing the January 2017 and April 2019
examinations. App’x 1. The Veterans Court affirmed. It
determined that the record adequately supported the
Board’s factual findings and that the Board had complied
with 38 U.S.C. § 7104(d)(1), which requires the Board to
“include . . . the reasons or bases for [its] findings and conclusions”
of fact and law. See App’x 1–3. Mr. Gainer now
appeals that decision to this court. We have jurisdiction
under 38 U.S.C. § 7292(c).
DISCUSSION
Our review of Veterans Court decisions is limited. Absent
a constitutional issue, we cannot review “a challenge
to a factual determination” or “a challenge to a law or regulation
as applied to the facts of a particular case.”
38 U.S.C. § 7292(d)(2). But we may review questions of
law, like those of statutory and regulatory interpretation.
See id. § 7292(d)(1).
Mr. Gainer asserts that the Veterans Court misinterpreted
38 C.F.R. § 3.655(a) and (b) and 38 U.S.C.
§ 7104(d)(1). Appellant’s Informal Br. 1–4. Each alleged
misinterpretation appears to stem from the same underlying
complaint: that, under 38 C.F.R. § 3.655, Mr. Gainer’s
missed examinations should have been deemed inconsequential
in view of his 1990 hospital records. Id. at 4. But
because Mr. Gainer did not raise this argument before the
Veterans Court, he forfeited it. Emenaker v. Peake,
551 F.3d 1332, 1337 (Fed. Cir. 2008)
.
Even if Mr. Gainer did not forfeit this argument, it
fails. Mr. Gainer seems to suggest that his 1990 hospital
records should have been considered as part of his claim for
an increased rating given 38 C.F.R. § 3.655(b)’s statement
that “[w]hen a claimant fails to report for an examination
scheduled in conjunction with an original compensation
claim, the claim shall be rated based on the evidence of record.”
Appellant’s Informal Br. 4 (emphasis added) (quoting
38 C.F.R § 3.655(b)). But Mr. Gainer’s claim is not an
Case: 22-1604 Document: 12 Page: 3 Filed: 07/06/2022
4 GAINER v. MCDONOUGH
original claim; it is a claim for increase. That means the
next sentence of § 3.655(b) controls the outcome of
Mr. Gainer’s claim: “When the examination was scheduled
in conjunction with . . . a claim for increase, the claim shall
be denied.” 38 C.F.R § 3.655(b) (emphasis added). And although
§ 3.655(a) defines examination and reexamination
to “include periods of hospital observation when required
by the [Department of Veterans Affairs],” that does not
mean Mr. Gainer’s 1990 hospital records obviated the need
for a current examination to evaluate Mr. Grainer’s entitlement
to a claim for increase filed in 2016. See 38 C.F.R.
§ 3.655(a). Thus, the Veterans Court correctly interpreted
§ 3.655 by its plain language when affirming the Board’s
denial of Mr. Gainer’s claim.
CONCLUSION
We have considered Mr. Gainer’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
Case: 22-1604 Document: 12 Page: 4 Filed: 07/06/2022

Case: 22-1604 Document: 12 Page: 1 Filed: 07/06/2022
2 GAINER v. MCDONOUGH
Before MOORE, Chief Judge, PROST and HUGHES, Circuit
Judges.
PER CURIAM.
Reginald D. Gainer sought an increased rating for his
service-connected disability. The Board of Veterans’ Appeals
(“Board”) denied the claim, and the Court of Appeals
for Veterans Claims (“Veterans Court”) affirmed.
Mr. Gainer appeals. We affirm.
BACKGROUND
Mr. Gainer was granted service connection for a thoracolumbar
spine disability, rated 40 percent disabling as of
August 2006. After Mr. Gainer filed a claim seeking an
increased rating in December 2016, he was scheduled for a
medical examination in January 2017. And although he
failed to appear for his appointment without explanation,
he was scheduled for a second examination in April 2019.
Mr. Gainer declined it.
The Board subsequently denied Mr. Gainer entitlement
to a rating in excess of 40 percent as a matter of law.
Specifically, under 38 C.F.R. § 3.655, “a claim for increase
. . . shall be denied” when “a claimant fails to report
to an examination” without good cause and entitlement to
that claim “cannot be established or confirmed without”
that examination. 38 C.F.R. § 3.655(a)–(b). Applying this
regulation, the Board found that Mr. Gainer failed to establish
good cause for both missed examinations and that
his entitlement to an increased rating could not be established
without one. S. App’x 11.1
Mr. Gainer appealed to the Veterans Court, arguing
that the Board “failed to support its finding that [he] lacked
1 “S. App’x” refers to the supplemental appendix
filed by Appellee. “App’x” refers to the appendix filed by
Appellant.
Case: 22-1604 Document: 12 Page: 2 Filed: 07/06/2022
GAINER v. MCDONOUGH 3
good cause” for missing the January 2017 and April 2019
examinations. App’x 1. The Veterans Court affirmed. It
determined that the record adequately supported the
Board’s factual findings and that the Board had complied
with 38 U.S.C. § 7104(d)(1), which requires the Board to
“include . . . the reasons or bases for [its] findings and conclusions”
of fact and law. See App’x 1–3. Mr. Gainer now
appeals that decision to this court. We have jurisdiction
under 38 U.S.C. § 7292(c).
DISCUSSION
Our review of Veterans Court decisions is limited. Absent
a constitutional issue, we cannot review “a challenge
to a factual determination” or “a challenge to a law or regulation
as applied to the facts of a particular case.”
38 U.S.C. § 7292(d)(2). But we may review questions of
law, like those of statutory and regulatory interpretation.
See id. § 7292(d)(1).
Mr. Gainer asserts that the Veterans Court misinterpreted
38 C.F.R. § 3.655(a) and (b) and 38 U.S.C.
§ 7104(d)(1). Appellant’s Informal Br. 1–4. Each alleged
misinterpretation appears to stem from the same underlying
complaint: that, under 38 C.F.R. § 3.655, Mr. Gainer’s
missed examinations should have been deemed inconsequential
in view of his 1990 hospital records. Id. at 4. But
because Mr. Gainer did not raise this argument before the
Veterans Court, he forfeited it. Emenaker v. Peake,
551 F.3d 1332, 1337 (Fed. Cir. 2008).
Even if Mr. Gainer did not forfeit this argument, it
fails. Mr. Gainer seems to suggest that his 1990 hospital
records should have been considered as part of his claim for
an increased rating given 38 C.F.R. § 3.655(b)’s statement
that “[w]hen a claimant fails to report for an examination
scheduled in conjunction with an original compensation
claim, the claim shall be rated based on the evidence of record.”
Appellant’s Informal Br. 4 (emphasis added) (quoting
38 C.F.R § 3.655(b)). But Mr. Gainer’s claim is not an
Case: 22-1604 Document: 12 Page: 3 Filed: 07/06/2022
4 GAINER v. MCDONOUGH
original claim; it is a claim for increase. That means the
next sentence of § 3.655(b) controls the outcome of
Mr. Gainer’s claim: “When the examination was scheduled
in conjunction with . . . a claim for increase, the claim shall
be denied.” 38 C.F.R § 3.655(b) (emphasis added). And although
§ 3.655(a) defines examination and reexamination
to “include periods of hospital observation when required
by the [Department of Veterans Affairs],” that does not
mean Mr. Gainer’s 1990 hospital records obviated the need
for a current examination to evaluate Mr. Grainer’s entitlement
to a claim for increase filed in 2016. See 38 C.F.R.
§ 3.655(a). Thus, the Veterans Court correctly interpreted
§ 3.655 by its plain language when affirming the Board’s
denial of Mr. Gainer’s claim.
CONCLUSION
We have considered Mr. Gainer’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
Case: 22-1604 Document: 12 Page: 4 Filed: 07/06/2022

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