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FedCir. Application; 38 C.F.R. §§ 4.114, DC 7203 and 4.7; 38 C.F.R. § 4.114, Diagnostic Code (“DC”) 7203 which prescribes ratings for esophageal strictures; achalasia; Without any regulatory definition of “[m]oderate,” it is impossible to determine under 38 C.F.R. § 4.7 whether Mr. Roby’s disability status “more nearly approximates the criteria required” for the 50% than the 30% rating of DC 7203; On finding interpretive doubt in DC 7203’s use of the term “liquids” and the impact of that term on Mr. Roby’s rating under § 4.7, Kisor II and Kisor IV require the Veterans Court to consider the pro-veteran canon before resolving the questions before it; once it is clear interpretive doubt remains the pro-veteran canon of construction must be considered; Brown v. Gardner, 513 U.S. 1301 (1994). Id. at 100–101; Skidmore deference;

NOTE: This disposition is nonprecedential.United States Court of Appeals for the Federal Circuit HAROLD L. ROBY, JR., Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee 2020-1088 Appeal from the United States...

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Single Judge Application; in Dallman, this Court stated:[T]his Court cannot consider an appellant’s contentions regarding the Board’s finality determination after reopening, but prior to the award of service connection, because that finality decision, along with the decision to reopen and remand a matter does not constitute a final Board decision as to his service-connection claim or the effective date of an award. 33 Vet. App. at 107;

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 17-0555ROBERT L. WALLACE, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before SCHOELEN, Senior Judge.1MEMORANDUM DECISIONNote:...

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Single Judge Application; Sellers v. Wilkie, 965 F.3d 1328,1337 (Fed. Cir. 2020) (noting that regulations requiring claimants to submit formal claims do not alter “‘VA’s general practice of identifying and adjudicating issues and claims that logically relate to the claim pending before . . . VA'” (quoting Veterans Just. Grp., LLC v. Sec’y of Veterans Affs., 818 F.3d 1336, 1356 (Fed. Cir. 2016));

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-6894ROBERT J. LIVINGSTON, JR., APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before MEREDITH, Judge.MEMORANDUM DECISIONNote:...

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MILITARY-VETERANS ADVOCACY v. SECRETARY OF VETERANS AFFAIRS, No. 2019-1600 ( Decided: July 30, 2021 ); We hold that all three regulations [38 C.F.R. § 14.636(c)(1)(i); 38 C.F.R. § 3.2500(b); 38 C.F.R. § 3.155] are invalid for contravening the unambiguous meaning of their governing statutory provisions; four separate petitions raising thirteen rulemaking challenges to these regulations under 38 U.S.C. § 502.1; AMA’s three procedural lanes to obtain review; 38 U.S.C. § 5104C(a)(1); claimants may use only one lane at a time. § 5104C(a)(2)(A); first lane is the filing of a supplemental claim, which allows a claimant to submit additional evidence to an AOJ for “readjudication” of the claim. §§ 5104C(a)(1)(B), 5108; second lane is a request for “higher-level review” made within one year of the AOJ’s decision. §§ 5104B(b)(1)(B), 5104C(a)(1)(A); third lane is a direct appeal to the Board;

United States Court of Appeals for the Federal Circuit MILITARY-VETERANS ADVOCACY,Petitionerv.SECRETARY OF VETERANS AFFAIRS,Respondent 2019-1600 Petition for review pursuant to 38 U.S.C. Section 502. NATIONAL ORGANIZATION OF...

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Ortiz v. McDonough, No. 2020-1911 (Decided: July 28, 2021) ; We conclude that the addition of § 3.304(f)(3) in 2010 was “liberalizing” under § 3.114(a); within § 3.114(a)’s “liberalizing” category; § 3.304(f)(3) reduced a veteran’s affirmative burden of production to establish an element of entitlement to compensation;

United States Court of Appeals for the Federal Circuit GERALDO P. ORTIZ,Claimant-Appellantv.DENIS MCDONOUGH, SECRETARY OFVETERANS AFFAIRS,Respondent-Appellee 2020-1911 Appeal from the United States Court of Appeals forVeterans Claims in No. 19-70,...

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Single Judge Application; service-connected cancer; Bailey v. Wilkie, 33 Vet.App. 188, 191 (2021) (holding that, under DC 7528, prostate cancer residuals may be assigned separate ratings and that formal claims for secondary service connection are not required if they are raised while VA is evaluating service-connected cancer);

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 17-4241JOHN R. STANCZAK, JR., APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before SCHOELEN, Senior Judge.1MEMORANDUM...

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Single Judge Application; Romero v. Tran; presumption of regularity; appellant may rebut the presumption “by producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” Crumlich, 31 Vet.App. at 205; Romero v. Tran, No. 19-3687, 2021 WL 266399, at *6 (Vet. App. Jan. 25, 2021) (“[C]lear evidence of irregularity is what robs the presumption of regularity of its power.”);

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 20-3030DONALD SCOTT DAVIS, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before GREENE, Senior Judge.1MEMORANDUM DECISIONNote:...

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Single Judge Application; Garner v. Tran; reasonably raised claim; for a claim to be reasonably raised, there must be “some evidence in the record which draws an association or suggests a relationship between” the veteran’s bilateral shoulder arthritis and service. Garner v. Tran, __ Vet. App. , , No. 18-5865, 2021 U.S. Vet. App. Claims LEXIS 81, at *16 (Jan. 26, 2021);

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-7197DAVID MARTIN, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before TOTH, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S....

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Single Judge Application; informed consent criteria in § 17.32; this Court found that the minor, immaterial deviation exception outlined in McNair “does not apply when there is no attempt to obtain consent (as opposed to where defective consent has been obtained).” Hatfield v. McDonough, No. 19-7165, __ Vet.App. , , 2021 WL 855176, at *8 (Vet. App. Mar. 8, 2021);

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 20-3381JUAN J. GARCIA, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before PIETSCH, Judge.MEMORANDUM DECISIONNote: Pursuant to...

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Single Judge Application; 38 C.F.R. § 20.104(c) (2020); “questions pertaining to its jurisdictional authority to review a particular case.”; But that power carries with it procedural protections for claimants. See Sheppard v. McDonough, _ Vet.App. _, , 2021 WL 958556, at *4 (Mar. 15, 2021); The regulation requires the Board to give 60 days’ notice to the veteran (and the Secretary) before it chooses to dismiss the appeal based on jurisdiction;

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 20-1817LONNIE M. JOHNS, JR., APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before JAQUITH, Judge.MEMORANDUM DECISIONNote: Pursuant...

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Tadlock; prejudicial error jurisprudence since we issued Simmons v. Wilkie, 30 Vet.App. 267 (2018); concerned that the Court’s current application of the rule of prejudicial error does not accord with U.S. Court of Appeals for the Federal Circuit precedent; Scott v. Wilkie, 920 F.3d 1375, 1380 (Fed. Cir. 2019) (the Court may not “substitute[e] new rationales of its own” to correct the Board’s decision); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000);

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 18-1160HOWARD L. TADLOCK, JR., APPELLANT,V.ROBERT L. WILKIE,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before BARTLEY, Chief Judge, and PIETSCH, GREENBERG,...

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Tadlock v. McDonough, No. 2020-1762(Decided: July 15, 2021); we hold that § 7261(b)’s command that the Veterans Court “give due account of the rule of prejudicial error” does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate; Veterans Court’s jurisdiction to consider prejudicial error does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate; prejudicial error;

United States Court of Appeals for the Federal Circuit HOWARD L. TADLOCK, JR., Claimant-Appellant v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee 2020-1762 Appeal from the United States Court of Appeals for Veterans Claims in...

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Single Judge Application; ‘an agency literally has no power to act . . . unless and until Congress confers power upon it.'” Id. (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). So, for example, federal agencies differ from federal courts in that the former have no “inherent equitable powers.” Liu v. SEC, 140 S. Ct. 1936, 1946-47 (2020); predicate-act canon. ANTONIN SCALIA & BRYAN A. GARNER, READING 4 LAW 192 (2012);

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-2940MICHAEL R. VITERNA, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before TOTH, Judge.MEMORANDUM DECISIONNote: Pursuant to...

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