United States Court of Appeals for the Federal Circuit
GERRY E. GUDINAS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
2021-2171
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2640, Judge Amanda L. Meredith,
Judge Coral Wong Pietsch, Judge William S. Greenberg.
Decided: December 2, 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, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; Y. KEN LEE, DEREK SCADDEN, Office of General
Case: 21-2171 Document: 28 Page: 1 Filed: 12/02/2022
2 GUDINAS v. MCDONOUGH
Counsel, United States Department of Veterans Affairs,
Washington, DC.
Before STOLL, BRYSON, and CUNNINGHAM, Circuit Judges.
BRYSON, Circuit Judge.
Appellant Gerry Gudinas was awarded a 50 percent
disability rating for his service-connected post-traumatic
stress disorder (“PTSD”) in 2005. In 2015, Mr. Gudinas
filed a claim to increase his PTSD rating, and the Department
of Veterans Affairs (“DVA”) determined that he was
entitled to a 100 percent rating for PTSD. Mr. Gudinas
challenges the DVA’s determination of the effective date for
his 100 percent rating, arguing that his 2015 submission
regarding PTSD constituted new and material evidence regarding
a 2014 claim he made for sleep apnea. For the reasons
set forth below, we affirm.
I
Mr. Gudinas served in the United States Army from
October 1966 to October 1968. In September 2005, the
DVA determined that Mr. Gudinas suffered from serviceconnected
PTSD and awarded him a 50 percent disability
rating for that condition. The DVA also awarded Mr. Gudinas
a 10 percent disability rating for service-connected tinnitus.
On May 30, 2014, Mr. Gudinas filed a claim for
service-connected sleep apnea. The DVA denied that claim
in an August 2014 rating decision. Mr. Gudinas timely
filed a notice of disagreement with the August 2014 rating
decision for sleep apnea.
On October 26, 2015, counsel for Mr. Gudinas sent a
letter to the DVA indicating that Mr. Gudinas was “currently
pursuing a claim for service connection for sleep apnea
as secondary to his service-connected PTSD.” J.A. 49.
Along with that letter, Mr. Gudinas sent a form requesting
increased compensation for total disability based on
Case: 21-2171 Document: 28 Page: 2 Filed: 12/02/2022
GUDINAS v. MCDONOUGH 3
individual unemployability (“TDIU”) and a supplemental
claim to increase his disability rating for PTSD. The DVA
denied Mr. Gudinas’s TDIU claim but increased his PTSD
disability rating to 100 percent. The DVA determined that
Mr. Gudinas was entitled to an effective date of October 26,
2015, for his increased rating.
In November 2016, Mr. Gudinas submitted a notice of
disagreement regarding the effective date for his 100-percent
rating for PTSD. He argued that under the pertinent
DVA regulation, 38 C.F.R. § 3.156(b), he was entitled to an
effective date of May 30, 2014, because his October 2015
submission constituted new and material evidence relating
to his May 2014 claim for sleep apnea. The DVA denied
entitlement to an earlier effective date. Mr. Gudinas appealed
that denial to the Board of Veterans’ Appeals.
The Board rejected Mr. Gudinas’s contention that he
was entitled to an earlier effective date for his 100-percent
PTSD rating on the ground that his May 30, 2014, claim
for sleep apnea was not related to his PTSD claim. The
Board noted that Mr. Gudinas’s May 2014 claim did “not
mention a psychiatric disability,” such as PTSD, and that
the claim “contained no mention of or indication that [Mr.
Gudinas] intended to file a claim for an increase in the
PTSD rating.” J.A. 132. Accordingly, the Board held that
the correct effective date for Mr. Gudinas’s 100 percent
PTSD rating was October 26, 2015, the date of the request
for an increase in his PTSD rating.
Mr. Gudinas appealed the Board’s decision to the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”). In that appeal, Mr. Gudinas argued that
the Board erred by failing to address whether the October
2015 submissions constituted new and material evidence
relating to the May 2014 claim. The Veterans Court began
by assuming that Mr. Gudinas’s sleep apnea claim could be
construed as a claim for secondary service connection to his
PTSD. The court nevertheless affirmed the Board’s
Case: 21-2171 Document: 28 Page: 3 Filed: 12/02/2022
4 GUDINAS v. MCDONOUGH
decision because “[t]he law is clear that claims for secondary
service connection are not claims for increased compensation
and are not part and parcel of a claim for increased
compensation for the primary condition.” Gudinas v.
McDonough, 34 Vet. App. 25, 37 (2021). The court added
that “the Board essentially considered whether § 3.156(b)
was triggered when it determined the nature of the May
2014 claim,” and determined that section 3.156(b) was not
triggered. Id. Mr. Gudinas appealed to this court.
II
We must affirm the decision of the Veterans Court unless
it is “(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in
excess of statutory jurisdiction, authority, or limitations, or
in violation of a statutory right; or (D) without observance
of procedure required by law.” 38 U.S.C. § 7292(d)(1). Our
review is limited to challenges to the “validity of any statute
or regulation or any interpretation thereof . . . , and to
interpret constitutional and statutory provisions, to the extent
presented and necessary to a decision.” Id. § 7292(c).
We may only review “a challenge to a factual determination”
or “a challenge to a law or regulation as applied to the
facts of a particular case” if the appeal presents a constitutional
issue. Id. § 7292(d)(2).
A
We begin by addressing our jurisdiction. The government
argues that we do not have jurisdiction over this case
because the Veterans Court merely applied well-established
law to the facts of Mr. Gudinas’s case. We disagree.
Mr. Gudinas’s appeal hinges on an interpretation of 38
C.F.R. § 3.156(b). Mr. Gudinas’s interpretation of the regulation,
although broad, would entitle him to relief in this
case if we were to accept it. Because the appeal presents a
challenge to the DVA’s interpretation of section 3.156(b),
we have the statutory authority and obligation to exercise
Case: 21-2171 Document: 28 Page: 4 Filed: 12/02/2022
GUDINAS v. MCDONOUGH 5
jurisdiction over Mr. Gudinas’s appeal. See 38 U.S.C.
§ 7292(c).
B
Section 3.156(b) of the DVA’s regulations provides as
follows:
New and material evidence received prior to the expiration
of the appeal period, or prior to the appellate
decision if a timely appeal has been filed . . . ,
will be considered as having been filed in connection
with the claim which was pending at the beginning
of the appeal period.
38 C.F.R. § 3.156(b).
Mr. Gudinas argues that section 3.156(b) requires the
DVA to expressly assess whether a claim presents new and
material evidence relating to a prior claim that was filed
within the time limits described in the regulation, even if
those two claims have no apparent relationship. In Mr.
Gudinas’s view, because no such express assessment occurred
here, we should remand this case to the Board to
make that determination in the first instance. We reject
that broad reading of section 3.156(b).
This case is similar to our decision in Manzanares v.
Shulkin, 863 F.3d 1374 (Fed. Cir. 2017), in several respects.
In Manzanares, the veteran filed a claim to increase
the disability rating for her service-connected ankle
condition, and the DVA awarded an increased rating for
that condition. Id. at 1375. During the appeal period for
the DVA’s decision, the veteran filed a claim for a back condition,
which she asserted was secondary to her ankle condition.
Id. The veteran argued that section 3.156(b)
required that her back condition be treated as “new and
material evidence” regarding her ankle condition, and that
the two claims should therefore be given the same effective
date.
Case: 21-2171 Document: 28 Page: 5 Filed: 12/02/2022
6 GUDINAS v. MCDONOUGH
In Manzanares, the veteran also relied on 38 C.F.R.
§ 3.310(a), which provides that “[w]hen service connection
is established for a secondary condition, the secondary condition
shall be considered a part of the original condition.”
The Manzanares court, however, noted that section
3.310(a) “does not mean that primary and secondary conditions
receive the same effective date.” Manzanares, 863
F.3d at 1377 (citing Ellington v. Peake, 541 F.3d 1364,
1365–70 (Fed. Cir. 2008)). The court therefore held that
the Veterans Court did not err in awarding a later effective
date for the veteran’s claim for her back condition. Id. at
1379.
Manzanares makes clear that it was not error for the
Board to treat Mr. Gudinas’s claim for sleep apnea and his
claim for an increased PTSD rating as separate claims for
purposes of determining the claims’ effective dates. Mr.
Gudinas, however, contends that Manzanares does not govern
this case, because the Manzanares court did not address
section 3.156(b) and because the court did not
address the relationship between the terms “claim” and
“benefit” in 38 C.F.R. § 20.3.
With respect to section 3.156(b), Mr. Gudinas argues
that his position is supported by our decisions in Bond v.
Shinseki, 659 F.3d 1362 (Fed. Cir. 2011), and Beraud v.
McDonald, 766 F.3d 1402 (Fed. Cir. 2014). In Bond, we
held that the DVA should have determined whether a
claim for an increased rating for PTSD constituted new and
material evidence relating to an earlier claim for PTSD.
Bond, 659 F.3d at 1363, 1368–69. In Beraud, we held that
the DVA should have determined whether medical records
submitted regarding a headache condition were new and
material evidence relating to an earlier claim for the same
headache condition. Beraud, 766 F.3d at 1403, 1407. As
we observed in Manzanares, both of those cases deal with
a new claim relating to the same condition as that described
in the earlier claim. See Manzanares, 863 F.3d at
United States Court of Appeals
for the Federal Circuit
GERRY E. GUDINAS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
2021-2171
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2640, Judge Amanda L. Meredith,
Judge Coral Wong Pietsch, Judge William S. Greenberg.
Decided: December 2, 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, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; Y. KEN LEE, DEREK SCADDEN, Office of General
Case: 21-2171 Document: 28 Page: 1 Filed: 12/02/2022
2 GUDINAS v. MCDONOUGH
Counsel, United States Department of Veterans Affairs,
Washington, DC.
Before STOLL, BRYSON, and CUNNINGHAM, Circuit Judges.
BRYSON, Circuit Judge.
Appellant Gerry Gudinas was awarded a 50 percent
disability rating for his service-connected post-traumatic
stress disorder (“PTSD”) in 2005. In 2015, Mr. Gudinas
filed a claim to increase his PTSD rating, and the Department
of Veterans Affairs (“DVA”) determined that he was
entitled to a 100 percent rating for PTSD. Mr. Gudinas
challenges the DVA’s determination of the effective date for
his 100 percent rating, arguing that his 2015 submission
regarding PTSD constituted new and material evidence regarding
a 2014 claim he made for sleep apnea. For the reasons
set forth below, we affirm.
I
Mr. Gudinas served in the United States Army from
October 1966 to October 1968. In September 2005, the
DVA determined that Mr. Gudinas suffered from serviceconnected
PTSD and awarded him a 50 percent disability
rating for that condition. The DVA also awarded Mr. Gudinas
a 10 percent disability rating for service-connected tinnitus.
On May 30, 2014, Mr. Gudinas filed a claim for
service-connected sleep apnea. The DVA denied that claim
in an August 2014 rating decision. Mr. Gudinas timely
filed a notice of disagreement with the August 2014 rating
decision for sleep apnea.
On October 26, 2015, counsel for Mr. Gudinas sent a
letter to the DVA indicating that Mr. Gudinas was “currently
pursuing a claim for service connection for sleep apnea
as secondary to his service-connected PTSD.” J.A. 49.
Along with that letter, Mr. Gudinas sent a form requesting
increased compensation for total disability based on
Case: 21-2171 Document: 28 Page: 2 Filed: 12/02/2022
GUDINAS v. MCDONOUGH 3
individual unemployability (“TDIU”) and a supplemental
claim to increase his disability rating for PTSD. The DVA
denied Mr. Gudinas’s TDIU claim but increased his PTSD
disability rating to 100 percent. The DVA determined that
Mr. Gudinas was entitled to an effective date of October 26,
2015, for his increased rating.
In November 2016, Mr. Gudinas submitted a notice of
disagreement regarding the effective date for his 100-percent
rating for PTSD. He argued that under the pertinent
DVA regulation, 38 C.F.R. § 3.156(b), he was entitled to an
effective date of May 30, 2014, because his October 2015
submission constituted new and material evidence relating
to his May 2014 claim for sleep apnea. The DVA denied
entitlement to an earlier effective date. Mr. Gudinas appealed
that denial to the Board of Veterans’ Appeals.
The Board rejected Mr. Gudinas’s contention that he
was entitled to an earlier effective date for his 100-percent
PTSD rating on the ground that his May 30, 2014, claim
for sleep apnea was not related to his PTSD claim. The
Board noted that Mr. Gudinas’s May 2014 claim did “not
mention a psychiatric disability,” such as PTSD, and that
the claim “contained no mention of or indication that [Mr.
Gudinas] intended to file a claim for an increase in the
PTSD rating.” J.A. 132. Accordingly, the Board held that
the correct effective date for Mr. Gudinas’s 100 percent
PTSD rating was October 26, 2015, the date of the request
for an increase in his PTSD rating.
Mr. Gudinas appealed the Board’s decision to the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”). In that appeal, Mr. Gudinas argued that
the Board erred by failing to address whether the October
2015 submissions constituted new and material evidence
relating to the May 2014 claim. The Veterans Court began
by assuming that Mr. Gudinas’s sleep apnea claim could be
construed as a claim for secondary service connection to his
PTSD. The court nevertheless affirmed the Board’s
Case: 21-2171 Document: 28 Page: 3 Filed: 12/02/2022
4 GUDINAS v. MCDONOUGH
decision because “[t]he law is clear that claims for secondary
service connection are not claims for increased compensation
and are not part and parcel of a claim for increased
compensation for the primary condition.” Gudinas v.
McDonough, 34 Vet. App. 25, 37 (2021). The court added
that “the Board essentially considered whether § 3.156(b)
was triggered when it determined the nature of the May
2014 claim,” and determined that section 3.156(b) was not
triggered. Id. Mr. Gudinas appealed to this court.
II
We must affirm the decision of the Veterans Court unless
it is “(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in
excess of statutory jurisdiction, authority, or limitations, or
in violation of a statutory right; or (D) without observance
of procedure required by law.” 38 U.S.C. § 7292(d)(1). Our
review is limited to challenges to the “validity of any statute
or regulation or any interpretation thereof . . . , and to
interpret constitutional and statutory provisions, to the extent
presented and necessary to a decision.” Id. § 7292(c).
We may only review “a challenge to a factual determination”
or “a challenge to a law or regulation as applied to the
facts of a particular case” if the appeal presents a constitutional
issue. Id. § 7292(d)(2).
A
We begin by addressing our jurisdiction. The government
argues that we do not have jurisdiction over this case
because the Veterans Court merely applied well-established
law to the facts of Mr. Gudinas’s case. We disagree.
Mr. Gudinas’s appeal hinges on an interpretation of 38
C.F.R. § 3.156(b). Mr. Gudinas’s interpretation of the regulation,
although broad, would entitle him to relief in this
case if we were to accept it. Because the appeal presents a
challenge to the DVA’s interpretation of section 3.156(b),
we have the statutory authority and obligation to exercise
Case: 21-2171 Document: 28 Page: 4 Filed: 12/02/2022
GUDINAS v. MCDONOUGH 5
jurisdiction over Mr. Gudinas’s appeal. See 38 U.S.C.
§ 7292(c).
B
Section 3.156(b) of the DVA’s regulations provides as
follows:
New and material evidence received prior to the expiration
of the appeal period, or prior to the appellate
decision if a timely appeal has been filed . . . ,
will be considered as having been filed in connection
with the claim which was pending at the beginning
of the appeal period.
38 C.F.R. § 3.156(b).
Mr. Gudinas argues that section 3.156(b) requires the
DVA to expressly assess whether a claim presents new and
material evidence relating to a prior claim that was filed
within the time limits described in the regulation, even if
those two claims have no apparent relationship. In Mr.
Gudinas’s view, because no such express assessment occurred
here, we should remand this case to the Board to
make that determination in the first instance. We reject
that broad reading of section 3.156(b).
This case is similar to our decision in Manzanares v.
Shulkin, 863 F.3d 1374 (Fed. Cir. 2017), in several respects.
In Manzanares, the veteran filed a claim to increase
the disability rating for her service-connected ankle
condition, and the DVA awarded an increased rating for
that condition. Id. at 1375. During the appeal period for
the DVA’s decision, the veteran filed a claim for a back condition,
which she asserted was secondary to her ankle condition.
Id. The veteran argued that section 3.156(b)
required that her back condition be treated as “new and
material evidence” regarding her ankle condition, and that
the two claims should therefore be given the same effective
date.
Case: 21-2171 Document: 28 Page: 5 Filed: 12/02/2022
6 GUDINAS v. MCDONOUGH
In Manzanares, the veteran also relied on 38 C.F.R.
§ 3.310(a), which provides that “[w]hen service connection
is established for a secondary condition, the secondary condition
shall be considered a part of the original condition.”
The Manzanares court, however, noted that section
3.310(a) “does not mean that primary and secondary conditions
receive the same effective date.” Manzanares, 863
F.3d at 1377 (citing Ellington v. Peake, 541 F.3d 1364,
1365–70 (Fed. Cir. 2008)). The court therefore held that
the Veterans Court did not err in awarding a later effective
date for the veteran’s claim for her back condition. Id. at
1379.
Manzanares makes clear that it was not error for the
Board to treat Mr. Gudinas’s claim for sleep apnea and his
claim for an increased PTSD rating as separate claims for
purposes of determining the claims’ effective dates. Mr.
Gudinas, however, contends that Manzanares does not govern
this case, because the Manzanares court did not address
section 3.156(b) and because the court did not
address the relationship between the terms “claim” and
“benefit” in 38 C.F.R. § 20.3.
With respect to section 3.156(b), Mr. Gudinas argues
that his position is supported by our decisions in Bond v.
Shinseki, 659 F.3d 1362 (Fed. Cir. 2011), and Beraud v.
McDonald, 766 F.3d 1402 (Fed. Cir. 2014). In Bond, we
held that the DVA should have determined whether a
claim for an increased rating for PTSD constituted new and
material evidence relating to an earlier claim for PTSD.
Bond, 659 F.3d at 1363, 1368–69. In Beraud, we held that
the DVA should have determined whether medical records
submitted regarding a headache condition were new and
material evidence relating to an earlier claim for the same
headache condition. Beraud, 766 F.3d at 1403, 1407. As
we observed in Manzanares, both of those cases deal with
a new claim relating to the same condition as that described
in the earlier claim. See Manzanares, 863 F.3d at
- In this case, on the other hand, the new claim relates
Case: 21-2171 Document: 28 Page: 6 Filed: 12/02/2022
GUDINAS v. MCDONOUGH 7
to a different condition (PTSD) from that of the earlier
claim (sleep apnea).
Furthermore, in a recent non-precedential opinion, we
held that Bond and Beraud do not “require[] the Board to
make explicit findings as to § 3.156(b)” when determining
the effective date for a claim of secondary service connection.
Jordan v. McDonough, No. 2021-1811, 2022 WL
2712506, at *2 (Fed. Cir. July 13, 2022). We agree with the
court in Jordan that the Board need not explicitly determine
whether a claim constitutes “new and material evidence”
relating to a previous claim when the two claims are
separate for effective-date purposes and the conditions underlying
the claims have no apparent connection to one another.
That is the case here: The Board made a factual
finding that Mr. Gudinas’s May 2014 claim did not mention
a psychiatric disability or reflect an intent to file for an increased
disability rating for PTSD, and Mr. Gudinas did
not raise a challenge to that finding in the Veterans Court.
See Gudinas, 34 Vet. App. at 32 n.5. That finding is binding
on us.
With respect to the regulatory definitions of “claim”
and “benefit,” Mr. Gudinas argues that those definitions
require that his claim for an increased PTSD rating be considered
as part of the same “claim” as his sleep apnea
claim. Section 20.3(f) defines “claim” as “a written communication
requesting a determination of entitlement . . . to a
specific benefit under the laws administered by the [DVA].”
38 C.F.R. § 20.3(f). Section 20.3(e) defines “benefit” as “any
payment . . . , entitlement to which is determined under
laws administered by the [DVA] pertaining to veterans and
their dependents and survivors.” Id. § 20.3(e).
Mr. Gudinas argues that his sleep apnea claim should
be treated as secondary to his PTSD claim. If it were
treated as such, he contends that the two separate claims
would represent a single “claim” for purposes of section
20.3(f) because they are both seeking the same “specific
Case: 21-2171 Document: 28 Page: 7 Filed: 12/02/2022
8 GUDINAS v. MCDONOUGH
benefit”: an increase in service-connected compensation.
However, the definitions of “claim” and “benefit” do not
suggest that a claim regarding a secondary condition
should be treated as the same claim as a claim regarding a
primary condition simply because they both seek additional
compensation. See also Manzanares, 863 F.3d at
1378 (“[T]here is nothing in the definition of ‘claim’ in 38
C.F.R. § 20.3(f) that suggests it includes secondary conditions
or that it carves out a separate rule for secondary service
connection.”).
Moreover, adopting Mr. Gudinas’s arguments regarding
section 20.3 would run afoul of our holding in Ellington.
In that case, we reasoned that 38 C.F.R. § 3.310(a) does not
require that a claim for secondary service connection be
given the same effective date as an earlier claim for the related
primary condition, because “secondary conditions
may not arise until years after the onset of the original condition.”
Ellington, 541 F.3d at 1369. Under Mr. Gudinas’s
reading of the regulations, a secondary condition that
arises after the filing of an original claim would be entitled
to an earlier effective date than the date the condition arose
if the appeal relating to the primary condition were still
pending. Such a result would be inconsistent with the reasoning
underlying our holding in Ellington. Accordingly,
we decline to adopt Mr. Gudinas’s reading of the definitions
in section 20.3(e).
At bottom, even if Mr. Gudinas’s claim for sleep apnea
were considered secondary to his PTSD claim, the two
claims would not need to be treated as the same claim for
purposes of determining their effective dates. And the
Board is not required to explicitly determine whether a
submission constitutes “new and material evidence” where,
as here, the conditions underlying the two claims have no
apparent connection. Accordingly, we uphold the decision
of the Veterans Court that Mr. Gudinas is entitled to an
effective date of October 26, 2015, for his 100 percent
Case: 21-2171 Document: 28 Page: 8 Filed: 12/02/2022
GUDINAS v. MCDONOUGH 9
disability rating for PTSD, not an effective date of May 30,
2014.
No costs.
AFFIRMED
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