Veteranclaims’s Blog

July 13, 2022

FedCir. Application; 38 C.F.R. § 3.156(b) does not control the effective date of secondary
service-connected disability; We have repeatedly rejected the government’s “overly broad” rule that precludes any review of the Veterans Court’s prejudicial error determinations. Tadlock v.
McDonough, 5 F.4th 1327, 1332–33 (Fed. Cir. 2021); see also Slaughter v. McDonough, 29 F.4th 1351, 1354–55 (Fed. Cir. 2022) (“We have expressly rejected the proposition that we lack any jurisdiction to review the Veterans Court’s prejudicial error determinations.”); Simmons v. Wilkie, 964 F.3d 1381, 1386 (Fed. Cir. 2020) (examining whether Veterans Court should have used “per se rule of prejudice” in prejudicial error analysis);

Filed under: Uncategorized — veteranclaims @ 4:44 pm

NOTE: This disposition is nonprecedential.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


JAMES B. JORDAN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1811


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5684, Judge Michael P. Allen.


Decided: July 13, 2022


KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
AMANDA TANTUM, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, JR., LOREN
MISHA PREHEIM; Y. KEN LEE, SAMANTHA ANN SYVERSON,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 21-1811 Document: 34 Page: 1 Filed: 07/13/2022
2 JORDAN v. MCDONOUGH


NOTE: This disposition is nonprecedential.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


JAMES B. JORDAN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1811


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5684, Judge Michael P. Allen.


Decided: July 13, 2022


KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
AMANDA TANTUM, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, JR., LOREN
MISHA PREHEIM; Y. KEN LEE, SAMANTHA ANN SYVERSON,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 21-1811 Document: 34 Page: 1 Filed: 07/13/2022
2 JORDAN v. MCDONOUGH


Before DYK, TARANTO, and CUNNINGHAM, Circuit Judges.
CUNNINGHAM, Circuit Judge.
James B. Jordan appeals from the decision of the
United States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the Board of Veterans’ Appeals’
(“Board”) denial of an effective date earlier than April 11,
2006, for his secondary service-connected right-knee disability.
Jordan v. Wilkie, No. 19-5684, 2021 WL 19031, at
*1–3 (Vet. App. Jan. 4, 2021). Because 38 C.F.R. § 3.156(b)
does not control the effective date of Mr. Jordan’s secondary
service-connected disability
and the Veterans Court did
not improperly place the burden of demonstrating prejudice
on Mr. Jordan, we affirm.
I. BACKGROUND
The VA granted Mr. Jordan service connection for two
right-knee conditions that were secondary to his serviceconnected
left-knee condition,1 with an effective date of
April 11, 2006. JA 144–47. Mr. Jordan appealed to the
Board and argued § 3.156(b) entitled him to an effective
date of February 23, 2005, the date when he initially
sought to increase the rating of his left-knee condition.
JA 207. Section 3.156(b) requires that “[n]ew and material
evidence received . . . will be considered as having been
1 “[D]isability which is proximately due to or the result
of a service-connected disease or injury shall be service
connected. When service connection is thus established for
a secondary condition, the secondary condition shall be considered
a part of the original condition.” 38 C.F.R.
§ 3.310(a); see also Manzanares v. Shulkin, 863 F.3d 1374,
1379 (Fed. Cir. 2017) (“[Section] 3.310(a) does not make a
claim for secondary service connection part of the primary
service connection claim.”).
Case: 21-1811 Document: 34 Page: 2 Filed: 07/13/2022
JORDAN v. MCDONOUGH 3
filed in connection with the claim which was pending at the
beginning of the appeal period.” 38 C.F.R. § 3.156(b) (emphasis
added). The Board disagreed with Mr. Jordan’s argument
for an earlier effective date, finding the record did
not show “any communication pre-dating April 11, 2006,
that could be considered an informal or formal claim for
service connection for any right knee conditions.” Jordan,
2021 WL 19031, at *1. Mr. Jordan appealed and argued
the Board erred because it did not specifically discuss
§ 3.156(b). Id. at *3. The Veterans Court rejected this argument
because Mr. Jordan “failed to demonstrate that
§ 3.156(b) applies to this matter or that the Board’s failure
to address § 3.156(b) was prejudicial.” Id. at *4.
II. DISCUSSION
On appeal, Mr. Jordan argues the Veterans Court
(1) used the wrong legal standard in evaluating prejudicial
error because it “imposed the burden on him to demonstrate
how the error made by the Board was prejudicial,”
and (2) misinterpreted the legal standards governing
§ 3.156(b). Appellant’s Br. at 15, 18–20. In turn, the government
argues that we lack jurisdiction because we cannot
review the “application of the harmless-error rule” and
because the Veterans Court’s decision “did not interpret”
§ 3.156(b) and only applied established law to the facts of
this case. Appellee’s Br. at 26–28. To the extent we reach
the merits, the government argues the Veterans Court applied
the correct legal standards in taking due account of
the prejudicial error rule and interpreting the applicability
of § 3.156(b). Id. at 15, 33. We address each argument in
turn.
A. Jurisdiction
We begin by addressing whether we have jurisdiction
to review Mr. Jordan’s appeal. Generally, on appeal from
the Veterans Court, we have jurisdiction to review relevant
questions of law. 38 U.S.C. § 7292(d)(1). Nonetheless, jurisdiction
is not the panacea the government believes it to
Case: 21-1811 Document: 34 Page: 3 Filed: 07/13/2022
4 JORDAN v. MCDONOUGH
be. We have repeatedly rejected the government’s “overly
broad” rule that precludes any review of the Veterans
Court’s prejudicial error determinations. Tadlock v.
McDonough, 5 F.4th 1327, 1332–33 (Fed. Cir. 2021); see
also Slaughter v. McDonough, 29 F.4th 1351, 1354–55
(Fed. Cir. 2022) (“We have expressly rejected the proposition
that we lack any jurisdiction to review the Veterans
Court’s prejudicial error determinations.”); Simmons v.
Wilkie, 964 F.3d 1381, 1386 (Fed. Cir. 2020) (examining
whether Veterans Court should have used “per se rule of
prejudice” in prejudicial error analysis)
. Similarly, we
have rejected the government’s argument that the Veterans
Court “did not interpret” a statute or regulation where
the Veterans Court decided that statute or regulation does
not apply. See, e.g., Flores v. Nicholson, 476 F.3d 1379,
1382 (Fed. Cir. 2007) (“[T]o the extent that the appellant
appears to disagree with the Veterans Court’s finding that
§ 103(d)(3) does not operate to restore benefits forfeited under
§ 6103(a), she raises a question regarding the interpretation
of a statute over which this court has jurisdiction.”);
see also Manzanares, 863 F.3d at 1376 (finding jurisdiction
to consider whether 38 C.F.R. §§ 3.310(a) and 3.156(b) controlled
effective date of secondary service-connected condition).
Here, Mr. Jordan does not challenge a factual finding
but instead disputes whether the Veterans Court used the
correct legal standards. Appellant’s Br. at 15, 18–20.
Thus, we have jurisdiction.
B. Section 3.156(b) and the Prejudicial Error Rule
Turning to the merits, we address § 3.156(b)’s applicability
to the effective date of Mr. Jordan’s secondary service-
connected condition and the legal standards governing
the prejudicial error rule. First, we agree with the Veterans
Court that § 3.156(b) does not control the effective date
of Mr. Jordan’s secondary service-connected condition.
Jordan, 2021 WL 19031, at *3–4 (“[S]econdary claims are
Case: 21-1811 Document: 34 Page: 4 Filed: 07/13/2022
JORDAN v. MCDONOUGH 5
not derivative of primary claims for effective-date purposes.
Accordingly, appellant has failed to demonstrate
that § 3.156(b) applies to this matter[.]”). We rejected a
similar argument in Manzanares, where we held that
§ 3.156(b) does not require the VA to treat a claim for a secondary
service-connected condition “as having been filed”
on the same date as a primary service-connected condition
for effective-date purposes. 863 F.3d at 1376–79. Indeed,
at oral argument, Mr. Jordan’s counsel conceded that “secondary
claims are not derivative of primary claims for effective-
date purposes” and that “[§] 3.156(b) is not an
effective-date regulation.” Oral Arg. at 9:32–10:28, available
at https://oralarguments.cafc.uscourts.gov/default.
aspx?fl=21-1811_04042022.mp3.
Mr. Jordan also argues that our decisions in Bond v.
Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011), and Beraud
v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014), required
the Board to make explicit findings as to § 3.156(b),
such that it erred when it “failed to address the applicability
of § 3.156(b) to determine the proper effective dates.”
Appellant’s Br. at 18–21. We disagree. In Manzanares, we
explicitly rejected that Bond and Beraud required a different
outcome because “[n]either case dealt with secondary
service connection, much less suggested that secondary
service connection is part of a primary benefits claim.” 863
F.3d at 1379. Bond holds that to comply with § 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, whether or not the
relevant submission might otherwise support a new claim.”
659 F.3d at 1369. Beraud held that it was error for the VA
not to consider whether evidence submitted during the appeal
period was “new and material evidence, as required by
§ 3.156(b).” 766 F.3d at 1407. Neither case suggests
§ 3.156(b) requires that Mr. Jordan’s claim for service-connection
of his secondary right-knee disability must have
the same effective date as his primary left-knee disability.
Case: 21-1811 Document: 34 Page: 5 Filed: 07/13/2022
6 JORDAN v. MCDONOUGH
Manzanares, 863 F.3d at 1379. Because § 3.156(b) has no
bearing on the effective date of Mr. Jordan’s secondary
right-knee disability, the Board did not err in not discussing
it. See Dye v. Mansfield, 504 F.3d 1289, 1292 (Fed. Cir.
2007) (“The Veterans Court correctly held that, in these circumstances,
the two presumptions Dye invoked were irrelevant,
and the Board therefore properly declined to discuss
them.”).
Second, even if we believed the Board’s omission constituted
error—which we do not—we reject Mr. Jordan’s
argument that the Veterans Court improperly placed the
burden on him, the appellant, to demonstrate that error
was prejudicial. Appellant’s Br. at 15. As explained in
Shinseki v. Sanders, there is no error in placing the burden
of establishing prejudice on the claimant. 556 U.S. 396,
409 (2009) (“[T]he burden of showing that an error is harmful
normally falls upon the party attacking the agency’s determination.”).
Here, that party is Mr. Jordan. The
Veterans Court did not simply find the alleged “error” to be
harmless by resting on its conclusion that Mr. Jordan
“failed to demonstrate . . . that the Board’s failure to address
§ 3.156(b) was prejudicial.” Jordan, 2021 WL 19031,
at *4. Rather, it came to that conclusion after performing
a “case-specific” analysis into the applicability of § 3.156(b).
See Sanders, 556 U.S. at 407, 411. We see no error.
III. CONCLUSION
We have reviewed Mr. Jordan’s other arguments and
find them unpersuasive. For the above reasons, we affirm.
AFFIRMED
Case: 21-1811 Document: 34 Page: 6 Filed: 07/13/2022

Before DYK, TARANTO, and CUNNINGHAM, Circuit Judges.
CUNNINGHAM, Circuit Judge.
James B. Jordan appeals from the decision of the
United States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the Board of Veterans’ Appeals’
(“Board”) denial of an effective date earlier than April 11,
2006, for his secondary service-connected right-knee disability.
Jordan v. Wilkie, No. 19-5684, 2021 WL 19031, at
*1–3 (Vet. App. Jan. 4, 2021). Because 38 C.F.R. § 3.156(b)
does not control the effective date of Mr. Jordan’s secondary
service-connected disability and the Veterans Court did
not improperly place the burden of demonstrating prejudice
on Mr. Jordan, we affirm.
I. BACKGROUND
The VA granted Mr. Jordan service connection for two
right-knee conditions that were secondary to his serviceconnected
left-knee condition,1 with an effective date of
April 11, 2006. JA 144–47. Mr. Jordan appealed to the
Board and argued § 3.156(b) entitled him to an effective
date of February 23, 2005, the date when he initially
sought to increase the rating of his left-knee condition.
JA 207. Section 3.156(b) requires that “[n]ew and material
evidence received . . . will be considered as having been
1 “[D]isability which is proximately due to or the result
of a service-connected disease or injury shall be service
connected. When service connection is thus established for
a secondary condition, the secondary condition shall be considered
a part of the original condition.” 38 C.F.R.
§ 3.310(a); see also Manzanares v. Shulkin, 863 F.3d 1374,
1379 (Fed. Cir. 2017) (“[Section] 3.310(a) does not make a
claim for secondary service connection part of the primary
service connection claim.”).
Case: 21-1811 Document: 34 Page: 2 Filed: 07/13/2022
JORDAN v. MCDONOUGH 3
filed in connection with the claim which was pending at the
beginning of the appeal period.” 38 C.F.R. § 3.156(b) (emphasis
added). The Board disagreed with Mr. Jordan’s argument
for an earlier effective date, finding the record did
not show “any communication pre-dating April 11, 2006,
that could be considered an informal or formal claim for
service connection for any right knee conditions.” Jordan,
2021 WL 19031, at *1. Mr. Jordan appealed and argued
the Board erred because it did not specifically discuss
§ 3.156(b). Id. at *3. The Veterans Court rejected this argument
because Mr. Jordan “failed to demonstrate that
§ 3.156(b) applies to this matter or that the Board’s failure
to address § 3.156(b) was prejudicial.” Id. at *4.
II. DISCUSSION
On appeal, Mr. Jordan argues the Veterans Court
(1) used the wrong legal standard in evaluating prejudicial
error because it “imposed the burden on him to demonstrate
how the error made by the Board was prejudicial,”
and (2) misinterpreted the legal standards governing
§ 3.156(b). Appellant’s Br. at 15, 18–20. In turn, the government
argues that we lack jurisdiction because we cannot
review the “application of the harmless-error rule” and
because the Veterans Court’s decision “did not interpret”
§ 3.156(b) and only applied established law to the facts of
this case. Appellee’s Br. at 26–28. To the extent we reach
the merits, the government argues the Veterans Court applied
the correct legal standards in taking due account of
the prejudicial error rule and interpreting the applicability
of § 3.156(b). Id. at 15, 33. We address each argument in
turn.
A. Jurisdiction
We begin by addressing whether we have jurisdiction
to review Mr. Jordan’s appeal. Generally, on appeal from
the Veterans Court, we have jurisdiction to review relevant
questions of law. 38 U.S.C. § 7292(d)(1). Nonetheless, jurisdiction
is not the panacea the government believes it to
Case: 21-1811 Document: 34 Page: 3 Filed: 07/13/2022
4 JORDAN v. MCDONOUGH
be. We have repeatedly rejected the government’s “overly
broad” rule that precludes any review of the Veterans
Court’s prejudicial error determinations. Tadlock v.
McDonough, 5 F.4th 1327, 1332–33 (Fed. Cir. 2021); see
also Slaughter v. McDonough, 29 F.4th 1351, 1354–55
(Fed. Cir. 2022) (“We have expressly rejected the proposition
that we lack any jurisdiction to review the Veterans
Court’s prejudicial error determinations.”); Simmons v.
Wilkie, 964 F.3d 1381, 1386 (Fed. Cir. 2020) (examining
whether Veterans Court should have used “per se rule of
prejudice” in prejudicial error analysis). Similarly, we
have rejected the government’s argument that the Veterans
Court “did not interpret” a statute or regulation where
the Veterans Court decided that statute or regulation does
not apply. See, e.g., Flores v. Nicholson, 476 F.3d 1379,
1382 (Fed. Cir. 2007) (“[T]o the extent that the appellant
appears to disagree with the Veterans Court’s finding that
§ 103(d)(3) does not operate to restore benefits forfeited under
§ 6103(a), she raises a question regarding the interpretation
of a statute over which this court has jurisdiction.”);
see also Manzanares, 863 F.3d at 1376 (finding jurisdiction
to consider whether 38 C.F.R. §§ 3.310(a) and 3.156(b) controlled
effective date of secondary service-connected condition).
Here, Mr. Jordan does not challenge a factual finding
but instead disputes whether the Veterans Court used the
correct legal standards. Appellant’s Br. at 15, 18–20.
Thus, we have jurisdiction.
B. Section 3.156(b) and the Prejudicial Error Rule
Turning to the merits, we address § 3.156(b)’s applicability
to the effective date of Mr. Jordan’s secondary service-
connected condition and the legal standards governing
the prejudicial error rule. First, we agree with the Veterans
Court that § 3.156(b) does not control the effective date
of Mr. Jordan’s secondary service-connected condition.
Jordan, 2021 WL 19031, at *3–4 (“[S]econdary claims are
Case: 21-1811 Document: 34 Page: 4 Filed: 07/13/2022
JORDAN v. MCDONOUGH 5
not derivative of primary claims for effective-date purposes.
Accordingly, appellant has failed to demonstrate
that § 3.156(b) applies to this matter[.]”). We rejected a
similar argument in Manzanares, where we held that
§ 3.156(b) does not require the VA to treat a claim for a secondary
service-connected condition “as having been filed”
on the same date as a primary service-connected condition
for effective-date purposes. 863 F.3d at 1376–79. Indeed,
at oral argument, Mr. Jordan’s counsel conceded that “secondary
claims are not derivative of primary claims for effective-
date purposes” and that “[§] 3.156(b) is not an
effective-date regulation.” Oral Arg. at 9:32–10:28, available
at https://oralarguments.cafc.uscourts.gov/default.
aspx?fl=21-1811_04042022.mp3.
Mr. Jordan also argues that our decisions in Bond v.
Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011), and Beraud
v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014), required
the Board to make explicit findings as to § 3.156(b),
such that it erred when it “failed to address the applicability
of § 3.156(b) to determine the proper effective dates.”
Appellant’s Br. at 18–21. We disagree. In Manzanares, we
explicitly rejected that Bond and Beraud required a different
outcome because “[n]either case dealt with secondary
service connection, much less suggested that secondary
service connection is part of a primary benefits claim.” 863
F.3d at 1379. Bond holds that to comply with § 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, whether or not the
relevant submission might otherwise support a new claim.”
659 F.3d at 1369. Beraud held that it was error for the VA
not to consider whether evidence submitted during the appeal
period was “new and material evidence, as required by
§ 3.156(b).” 766 F.3d at 1407. Neither case suggests
§ 3.156(b) requires that Mr. Jordan’s claim for service-connection
of his secondary right-knee disability must have
the same effective date as his primary left-knee disability.
Case: 21-1811 Document: 34 Page: 5 Filed: 07/13/2022
6 JORDAN v. MCDONOUGH
Manzanares, 863 F.3d at 1379. Because § 3.156(b) has no
bearing on the effective date of Mr. Jordan’s secondary
right-knee disability, the Board did not err in not discussing
it. See Dye v. Mansfield, 504 F.3d 1289, 1292 (Fed. Cir.
2007) (“The Veterans Court correctly held that, in these circumstances,
the two presumptions Dye invoked were irrelevant,
and the Board therefore properly declined to discuss
them.”).
Second, even if we believed the Board’s omission constituted
error—which we do not—we reject Mr. Jordan’s
argument that the Veterans Court improperly placed the
burden on him, the appellant, to demonstrate that error
was prejudicial. Appellant’s Br. at 15. As explained in
Shinseki v. Sanders, there is no error in placing the burden
of establishing prejudice on the claimant. 556 U.S. 396,
409 (2009) (“[T]he burden of showing that an error is harmful
normally falls upon the party attacking the agency’s determination.”).
Here, that party is Mr. Jordan. The
Veterans Court did not simply find the alleged “error” to be
harmless by resting on its conclusion that Mr. Jordan
“failed to demonstrate . . . that the Board’s failure to address
§ 3.156(b) was prejudicial.” Jordan, 2021 WL 19031,
at *4. Rather, it came to that conclusion after performing
a “case-specific” analysis into the applicability of § 3.156(b).
See Sanders, 556 U.S. at 407, 411. We see no error.
III. CONCLUSION
We have reviewed Mr. Jordan’s other arguments and
find them unpersuasive. For the above reasons, we affirm.
AFFIRMED
Case: 21-1811 Document: 34 Page: 6 Filed: 07/13/2022

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