Court is bound by prior panel and en banc opinions, and "a panel or single judge may not render a decision which conflicts materially with such earlier panel or en banc opinion"
How later courts described this case
- Court is bound by prior panel and en banc opinions, and "a panel or single judge may not render a decision which conflicts materially with such earlier panel or en banc opinion"
- "[T]he Court will not ordinarily consider additional allegations of error that have been rendered moot by the Court's opinion or that would require the Court to issue an advisory opinion."
Written by the judges who cited it.
The opinion
Case: 22-5377 Page: 1 of 21 Filed: 08/16/2024
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 22-5377
JAMES W. RORIE, SR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued June 13, 2024 Decided August 16, 2024)
Tracy K. Alsup, of Beaverton, Oregon, for the appellant.
James R. Drysdale, with whom Richard J. Hipolit, Deputy General Counsel for Veterans
Programs; Mary Ann Flynn, Chief Counsel; Christopher W. Wallace, Deputy Chief Counsel; and
Anna M Castillo, Appellate Attorney, all of Washington, D.C., were on the brief for the appellee.
Before ALLEN, TOTH, and FALVEY, Judges.
ALLEN, Judge, filed the opinion of the Court. TOTH, Judge, filed a concurring opinion.
ALLEN, Judge: This appeal calls on us to explore the evolving area of judicial deference
to the positions of administrative agencies. And if that is not enough alone to entice one to read
on, we will also consider how recent changes in the administrative law landscape affect principles
of horizontal statutory stare decisis. But we're getting ahead of ourselves.
Appellant James W. Rorie, Sr., served the Nation honorably in the U.S. Marine Corps from
August 1967 to May 1970, including service in Vietnam.1 In this appeal, which is timely and over
which the Court has jurisdiction, 2 appellant contests an August 19, 2022, Board of Veterans'
Appeals decision that denied entitlement to an effective date before November 18, 1988, for
service-connected tinea pedis. Our decision today revolves around appellant's challenge to the
Board's effective-date determination. Specifically, appellant advances two arguments for an
effective date before November 18, 1988. His primary argument would lead to an effective date
1
Record (R.) at 20,548.
2
See 38 U.S.C. §§ 7252(a), 7266(a).
Case: 22-5377 Page: 2 of 21 Filed: 08/16/2024
of August 5, 1985. The second argument would afford appellant an effective date of November 6,
1987.
We first preview appellant's claim that he is entitled to an effective date in 1985 for service
connection for tinea pedis. In this regard, before March 2015, VA accepted informal claims and,
as particularly relevant here, allowed a report of an examination by a VA medical professional to
serve as an informal claim if certain criteria set forth in 38 C.F.R. § 3.157(b) were met. 3 In
Pacheco v. Gibson,4 the en banc Court interpreted § 3.157(b), and held, in pertinent part, that the
regulation applied only in situations in which a claim was previously "disallowed for the reason
that the disability was not compensable in degree."5
We will return to § 3.157(b) and Pacheco below. For now, the key point is that appellant
maintains that he is entitled to an effective date of August 5, 1985, the date of a VA examination
report that VA should have construed as an informal claim to reopen his previously denied tinea
pedis claim under § 3.157(b) (1985). But appellant recognizes that he faces a major problem with
this argument. Namely, Pacheco forecloses his argument. And this is where we make our entry
into administrative law. Appellant contends that the Court is no longer bound by Pacheco in light
of the U.S. Supreme Court's decision in Kisor v. Wilkie.6 In Kisor, the Supreme Court revisited the
circumstances under which Federal courts were to defer to the views of administrative agencies
when dealing with ambiguous regulations under the Supreme Court's precedent in Auer v.
Robbins.7 In other words, appellant asserts that because the Court in Pacheco employed a pre-
Kisor deference analysis under Auer to interpret § 3.157(b), we must reevaluate our interpretation
of § 3.157(b) using a Kisor-compliant deference analysis. And he continues by insisting that he
would be able to succeed on the merits if the Court were not bound by Pacheco and its purportedly
overly deferential assessment of § 3.157(b).
This matter was referred to a panel of the Court to address appellant's primary argument
under § 3.157(b) and to decide, given Kisor, whether the Court's interpretation of § 3.157(b) in
Pacheco remains binding precedent. As we explain in detail below, we hold that Kisor does not
3
38 C.F.R. § 3.157(b) (2012) (repealed by 79 Fed. Reg. 57,659, 57,696 (Sept. 25, 2014), effective Mar. 24, 2015).
4
27 Vet.App. 21 (2014) (en banc).
5
Id. at 20.
6
Appellant's Brief (Br.) at 7-8 (citing Kisor v. Wilkie, 588 U.S. 558 (2019)).
7
519 U.S. 452 (1997); see Kisor, 588 U.S. at 563; see also LaBruzza v. McDonough, 37 Vet.App. 111, 118 (2024).
2
Case: 22-5377 Page: 3 of 21 Filed: 08/16/2024
require that we revisit Pacheco. Shortly after we held argument in this appeal,8 the Supreme Court
overruled the Chevron doctrine that had outlined a framework for judicial deference to
administrative agency's views of ambiguous statutes.9 Significantly, the Supreme Court made clear
that its decision did not upset earlier decisions that had relied on the Chevron doctrine.10 In other
words, principles of stare decisis generally required courts to adhere to such earlier decisions that
had been rendered under the then-required Chevron framework.11 We see no principled reason that
the same rule of stare decisis does not hold sway in the context of the Supreme Court's change
from Auer to Kisor deference in terms of ambiguous regulations. And, as we will explain in detail,
to the extent this Court's recent decision in LaBruzza v. McDonough proceeded along a different
path, we conclude that it is irreconcilable with the logic of Loper Bright Enterprises v. Raimondo.
So, we conclude that we remain bound by Pacheco. And because appellant agrees he can't prevail
under that precedent, we will affirm the Board's denial of an effective date of August 5, 1985, for
service-connected tinea pedis.
This leaves appellant's alternate argument that he is entitled to an effective date of
November 6, 1987, based on a statement he submitted that he maintains should have been deemed
an informal claim for tinea pedis under the law. This argument would not have required a panel
because it is governed by existing law. As we explain, the Board applied the correct legal principles
and its conclusion that the November 6, 1987, statement is not an informal claim for tinea pedis is
not clearly erroneous. Accordingly, we will affirm the Board's August 2022 decision in full.
I. BACKGROUND
In June 1970, appellant filed a claim seeking entitlement to service connection for "flat
feet."12 In October 1970, VA granted appellant service connection for bilateral pes planus and
assigned a noncompensable disability rating. 13 In March 1974, VA awarded appellant a 10%
disability rating for service-connected bilateral pes planus, effective May 29, 1970, the day after
8
Oral Argument (OA), Rorie v. McDonough, U.S. Vet. App. No. 22-5377 (oral argument held June 13, 2024),
https://www.youtube.com/watch?v=cfs_44-TPYQ&t=549s.
9
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 603 U.S. __ (2024).
10
Loper Bright, 144 S. Ct. at 2273, 603 U.S. at __.
11
Loper Bright, 144 S. Ct. at 2270-74, 603 U.S. at __.
12
R. at 20,551.
13
R. at 20,536-37.
3
Case: 22-5377 Page: 4 of 21 Filed: 08/16/2024
appellant separated from service.14 Roughly 10 years later, in August 1980, appellant underwent a
VA medical examination and was diagnosed with tinea pedis.15
In April 1983, appellant sought "re-evaluation" of his foot condition because of "increased
pain/discomfort and a worsening skin irritation on [his] feet." 16 VA characterized appellant's
request as one for an increased rating for service-connected bilateral pes planus as well as a new
claim for service connection for tinea pedis. In July 1983, VA denied both claims.17 In December
1983, appellant appealed to the Board and it denied service connection for tinea pedis in a March
1985 decision.18
In August 1985, appellant was treated for a fungal infection of both feet.19 In September
1986, appellant was treated for "tinea infection." 20 On November 6, 1987, VA received
correspondence from appellant that stated:
I am requesting a re-examination of my service-connected disabilities for the
purpose of obtaining an increased rating. The basis of this request for a higher . . .
service[-]connected disability rating is due to a continual worsening of
compensa[]ble related conditions previously identified. Past visits and treatments
at [VA] medical facilities have been largely unsuccessful in curbing the pain and
increased debilitati[on] [from] my service-connected disabilities which have been
further exacerbated by growing older.21
Roughly a year later, on November 14, 1988, appellant sent a letter to VA concerning his tinea
pedis claim.22 Specifically, appellant inquired whether his tinea pedis claim could be "processed
14
R. at 20,404 (Mar. 1974 rating decision), 20,367 (Nov. 1974 Board decision). Judicial review was not available to
veterans, and other claimants, who were denied benefits at the agency level until Congress passed the Veterans'
Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988).
15
R. at 20,088 (Mar. 1985 Board decision). A copy of the August 1980 VA medical examination report is not in the
record but is referenced in the March 1985 Board decision. Neither party argues that the omission of this record is
material and we don't see that it is.
16
R. at 20,179. There is nothing in the record to indicate that any development occurred between November 1974 and
April 1983 with respect to appellant's bilateral foot condition.
17
R. at 20,162.
18
R. at 20,128 (Dec. 1983 Board Appeal), 20,087-92 (Mar. 1985 Board decision). Judicial review was still not yet
available. See supra note 15.
19
R. at 20,058.
20
Id.
21
R. at 20,075.
22
R. at 19,966.
4
Case: 22-5377 Page: 5 of 21 Filed: 08/16/2024
simultaneously" along with a claim for service connection for hearing loss.23 VA characterized the
November 1988 letter as a request to reopen his claim for service connection for tinea pedis.
In January 2010, the RO granted service connection for tinea pedis, effective March 1,
2007, based on VA medical examination findings.24 Appellant contested the assigned effective
date, and after three Board appeals and two joint motions for partial remand (JMPRs) at the Court,
the Board issued a decision in May 2020. 25 The Board found that an effective date before
November 18, 1988, was not warranted because "the earliest date after the March 1985 Board
decision that the [v]eteran expressed an intent to reopen his claim for service connection for tinea
pedis is November 18, 1988."26 The Board also concluded that "there is no record of any evidence,
to include any medical records or statements from the Veteran or his representative, being received
by VA between the Board's [March 1985] decision . . . and prior to November 6, 1987." 27
Appellant appealed that decision to the Court.
In December 2021, we set aside the Board's May 2020 decision and remanded the matter
because the Board failed to consider relevant evidence, specifically the November 6, 1987,
statement, when determining the effective date for appellant's tinea pedis claim.28 We also declined
to address appellant's argument about the application of § 3.157(b) because the argument was too
underdeveloped.29 The matter was returned to the Board.
In August 2022, the Board issued the decision on appeal, explaining that the question
before it was "whether a formal or informal claim is of record at any time between March 14,
1985[,] and November 18, 1988."30 The Board declined to apply § 3.157(b) and largely focused
on addressing the November 1987 statement.31 The Board concluded that "[t]he most reasonable
23
Id.
24
R. at 16,869-71. Neither party explains the 22-year gap in the procedural history.
25
R. at 13,986-14,035 (Jan. 2015 Board decision), 12,845-52 (May 2016 JMPR), 12,551-77 (Nov. 2016 Board
decision), 10,278-83 (Oct. 2018 JMPR), 7982-87 (Apr. 2019 Board decision), 3122-28 (May 2020 Board decision).
26
R. at 3128.
27
R. at 3126.
28
R. at 696-99.
29
Id.
30
R. at 8.
31
The Board also stated that in May 2022, Mr. Rorie filed a motion to revise a previous decision based on clear and
unmistakable error (CUE), and one of his CUE arguments was that § 3.157(b) is applicable to his tinea pedis claim
5
Case: 22-5377 Page: 6 of 21 Filed: 08/16/2024
interpretation is that the November 1987 letter does not express an intent to claim service
connection for a new disability or reopen a previously denied service connection claim, but instead
to claim an increased rating for his service-connected bilateral pes planus disability."32 The Board
also stated that it was not clear whether appellant's mention of "compensable related conditions"
in his 1987 statement included a reference to tinea pedis.33 The Board also discussed whether
medical records dated between 1985 and 1987 satisfied the requirements of an informal claim for
service connection for tinea pedis. The Board concluded that the mere mention of a diagnosis in a
VA medical report does not establish the requisite intent to file a claim for service connection for
that condition.34 This appeal followed.
II. ANALYSIS
Our analysis tracks appellant's arguments. We will first discuss appellant's principal
argument that he is entitled to an effective date of August 5, 1985, relying on §3.157(b) (1985).35
This argument requires us to evaluate a complex threshold issue, namely whether the Supreme
based on 1985 and 1986 VA treatment records. R. at 7. The Board concluded that it would not address the veteran's
CUE contentions because it lacked jurisdiction over the merits of the matter. Id. Appellant does not challenge this
finding. So, we deem any appeal as to it abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en
banc).
32
R. at 10.
33
Id.
34
R. at 11 (citing Brannon v. West, 12 Vet.App. 32, 35 (1998)).
35
To the extent that the Board's earlier CUE finding, see supra note 30, could raise a question about the Court's
jurisdiction over the § 3.157(b) matter, we conclude that the Court has jurisdiction to consider the matter. See Kernz v.
McDonough, 36 Vet.App. 372, 379-80 (2023) (en banc) (discussing that federal courts have an obligation to ensure
they have jurisdiction to act). Although Mr. Rorie's May 2022 correspondence was unclear, his argument concerning
§ 3.157(b) does not appear to be included in the portion where he alleged CUE. Compare R. at 86-87 (stating that
before the Court, he had asserted that because of 1985 and 1986 VA treatment records, 1985 or 1986 could be the
appropriate effective date based on § 3.157(b)), with R. at 88 (later alleging that because of CUE, the veteran was not
given (1) appropriate consideration for service connection for skin disabilities he claimed in 1973 and 1983; (2) the
correct effective date for skin disabilities based on "the date his informal and/or formal claim was filed or for which
he was eligible under VA rules as shown in the existing VA record at the time"; or (3) proper consideration under
38 C.F.R. § 4.118 (schedule of ratings for the skin)).
It is true that in this correspondence to the Board, Mr. Rorie did not elaborate on his § 3.157(b) argument as the Court
had directed, see Rorie v. McDonough, No. 20-6533, 2021 WL 6061896, at *2 (Vet. App. Dec. 22, 2021) (mem. dec.),
nor did he identify which decision(s) he was requesting that VA revise. Still, Mr. Rorie's § 3.157(b) argument seems
to be separate from his CUE allegations. And so, the Board appears to have mischaracterized that argument as being
part of his CUE motion. And this is particularly true because Mr. Rorie had already raised this (albeit underdeveloped)
argument to the Court, see Rorie, 2021 WL 6061896, at *2, and then reiterated it (although still underdeveloped) to
the Board, see R. at 86-87. The bottom line is that we have assured ourselves that we have jurisdiction here.
6
Case: 22-5377 Page: 7 of 21 Filed: 08/16/2024
Court's decision in Kisor36 requires us to revisit our en banc decision in Pacheco37 concerning
§ 3.157(b). We conclude that Pacheco remains binding and, therefore, we will reject appellant's
first argument. We will then turn to appellant's alternative argument that he is entitled to an
effective date of November 6, 1987. Here, appellant relies on Shea v. Wilkie to assert that his
November 1987 submission was an informal claim for tinea pedis.38 We can't say that the Board
erred when it determined that the November 1987 submission was not an informal claim for tinea
pedis. So, we will reject this second argument and, accordingly, affirm the Board's decision.
A. Earlier Effective Date—August 1985
1. Parties' Arguments
Appellant presents two theories under which he believes that he is entitled to an earlier
effective date of August 5, 1985, under §3.157(b). First, in his opening brief, appellant argues that
he is entitled to an August 5, 1985, effective date because VA should have recognized that the
August 1985 VA examination report was an informal claim to reopen his previously "disallowed
or denied" tinea pedis claim. 39 Appellant continued to assert this theory in his reply brief. 40
Moreover, appellant asserts that the Court is not bound by our en banc decision in Pacheco that
would foreclose his theory for an August 1985 effective date.41 He maintains that Pacheco was
based on a theory of judicial deference to an administrative agency's position that has been
undermined by the Supreme Court in Kisor.42 He argues that the Court should interpret § 3.157(b)
anew and, when it does so, he could prevail.43
Appellant's second theory did not emerge until he filed his supplemental brief. There,
appellant argued for the first time that he is entitled to an August 5, 1985, effective date for service-
connected tinea pedis because VA should have recognized that the August 1985 VA examination
report was an informal claim for increase for his already "allowed" bilateral foot claim that he
36
588 U.S. at 558.
37
27 Vet.App. at 20.
38
926 F.3d 1361 (Fed. Cir. 2019).
39
Appellant's Br. at 6.
40
Reply Br. at 5.
41
Appellant's Br. at 7-8; Reply Br. at 5.
42
Appellant's Br. at 8.
43
Id. at 10.
7
Case: 22-5377 Page: 8 of 21 Filed: 08/16/2024
maintains encompassed his tinea pedis condition. 44 Appellant asserts that VA erroneously
bifurcated his initial bilateral foot claim into two separate claims: one for bilateral pes planus and
one for tinea pedis.45 Appellant purports that he has always pursued his bilateral foot claim as
encompassing both foot disabilities and he has "never brought a separate claim for tinea pedis."46
During oral argument, appellant's counsel confirmed that appellant changed his position
between the opening (and reply) brief and his supplemental brief. 47 Appellant's counsel also
explained that appellant was raising the "disallowed" route only because of the way that VA had
characterized his claims—i.e., purportedly erroneously bifurcating his foot claim into two claims.48
Ultimately, however, appellant maintains that his claim for tinea pedis has always been "allowed"
for purposes of § 3.157(b) because he submitted a single claim for a foot condition that VA
bifurcated.
The Secretary defends the Board's decision in full and urges us to affirm the Board's
rejection of an August 1985 effective date for service connection for tinea pedis. In particular, the
Secretary relies on Pacheco, which he contends forecloses appellant's argument for a 1985
effective date under § 3.157(b). And he maintains that nothing in Kisor undermines Pacheco,
meaning that this panel remains bound by the en banc Court's decision about the meaning of
§ 3.157(b).
There is one point about appellant's position that we need to address further before we
proceed with our analysis. Specifically, we must first consider whether it is appropriate for us to
entertain appellant's late-raised second theory about why he is entitled to an August 1985 effective
date, a contention that he presented for the first time in his supplemental brief and then expanded
on at oral argument.49 We conclude that it is not.
During oral argument, appellant's counsel agreed that the second incarnation of appellant's
argument was not fully developed in the opening brief.50 We agree with appellant as far as he goes,
44
Appellant's Supplemental (Supp.) Br. at 10.
45
Id. at 14.
46
Id. at 10, 24.
47
OA at 8:32-9:16, 16:36-22:26.
48
OA at 10:43-12:00.
49
Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000).
50
OA at 10:30-12:00.
8
Case: 22-5377 Page: 9 of 21 Filed: 08/16/2024
but we also think saying that the argument was not fully developed is an understatement. In his
opening brief, it is true that appellant states that "VA itself, treated pes planus and tinea pedis as
one claim," citing a September 1983 Statement of the Case (SOC).51 However, this statement
cannot be read to assert the argument appellant eventually advanced in his supplemental brief and
during oral argument. First, the argument appellant raised in his supplemental brief and during oral
argument was predicated on the tinea pedis claim as being "allowed" under § 3.157(b),52 whereas
the argument appellant raised in his opening and reply briefs was based on the tinea pedis claim
as being "disallowed" under § 3.157(b).53 Second, appellant's reference to his two disabilities being
treated as one was only mentioned during his discussion of his argument seeking an effective date
of November 1987—not during his primary argument about an earlier August 1985 effective date.
And if that is not enough, appellant fails to explain why he believes the SOC's description supports
his view, when VA noted in the SOC that it was considering "[s]ervice connection for tinea pedis;
increased evaluation for service-connected pes planus."54 The semi-colon between the two claims
suggests that the two conditions were treated as separate issues. What's more, VA appears to have
properly characterized the conditions as two separate issues: service connection for a skin
condition (tinea pedis) and an increased rating for an already service-connected musculoskeletal
condition (pes planus). In sum, one simply can't say that the single reference in appellant's opening
brief to the pes planus and tinea pedis claims as a single claim, would alert anyone that despite
focusing on the "disallowed" language under § 3.157(b), he was really developing an argument
about the "allowed" language under that regulation. Therefore, in simplest terms, appellant did not
make the argument in his opening brief.
It is well established that arguments not raised in an opening brief are forfeited.55 Although
the Court sought supplemental briefing in this matter, it was for specific questions with the purpose
of refining arguments that the parties had already made in their opening briefs. It was not an
invitation for either party to raise new arguments or theories of entitlement. Moreover, by changing
course so dramatically, appellant made it more difficult for the Secretary to respond. Appellant
51
Appellant's Br. at 14.
52
Appellant's Supp. Br. at 10-11; OA at 10:30-12:00.
53
Appellant's Br. at 6, 10-14.
54
R. at 20,149 (Sept. 2013 SOC).
55
Andrews v. McDonough, 34 Vet.App. 151, 159 (2021).
9
Case: 22-5377 Page: 10 of 21 Filed: 08/16/2024
essentially gave the Secretary a moving target at which to aim. And appellant left the Court trying
to guess which theory he wanted us to consider when adjudicating his case—that is, should we
consider his tinea pedis claim allowed or disallowed, where the claim could presumably be only
one or the other, but not both. Therefore, exercising our discretion, we decline to address
appellant's second, late-raised theory of entitlement to an earlier effective date under § 3.157(b),
namely that we should address his claim as one that has been "allowed" under the terms of
§ 3.157(b). Accordingly, in the balance of this section, we will focus on appellant's original
theory—that the August 1985 report of examination should have been construed as a claim to
reopen his previously "disallowed" tinea pedis claim under § 3.157(b) (1985).
2. 38 C.F.R. § 3.157(b) (1985)
As we have explained, appellant asserts that he could be entitled to an August 1985
effective date under § 3.157(b). But that argument is a nonstarter under the en banc Court's analysis
in Pacheco. So, the first step in terms of evaluating appellant's argument is to is to decide whether
we remain bound by Pacheco. If we are, that's the end of the matter. Appellant says Pacheco no
longer binds us because of the Supreme Court's decision in Kisor. We reject that position, although
it will take some explanation about why we reach that conclusion.
While we ultimately will not need to independently explore the meaning of § 3.157(b), it
will be helpful to set the stage by briefly discussing that regulation as well as the Court's decision
in Pacheco. So that is where we will begin in this sub-section.
In 1985, § 3.157(b) provided that
[o]nce a formal claim for pension or compensation had been allowed or a formal
claim for compensation disallowed for the reason that the service-connected
disability is not compensable in degree, receipt of [a report of examination or
hospitalization by VA or uniformed services] will be accepted as an informal claim
for increased benefits or an informal claim to reopen.[56]
In 1987, § 3.157(b) was amended to specify that the date of claim based on a report of examination
or hospitalization by VA is the date of such examination or admission to a hospital "when such
reports relate to examination or treatment of a disability for which service[ ]connection has
previously been established or when a claim specifying the benefit sought is received within one
year from the date of such examination, treatment or hospital admission."57
56
38 C.F.R. § 3.157(b) (1985).
57
38 C.F.R. § 3.157(b)(1) (1987).
10
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In July 2014, the en banc Court addressed § 3.157(b) in Pacheco. The Court held that the
use of a report of examination as an informal claim to reopen under § 3.157(b)—the mechanism
appellant is attempting to use in the appeal before us today—is limited to situations in which a
claim was previously "disallowed for the reason that the disability was not compensable in
degree." 58 The Court concluded that § 3.157(b) was ambiguous. 59 Having done so, the Court
proceeded to consider whether it should defer to the Secretary's interpretation of the regulation
under the then-prevailing Auer doctrine.60
Under Auer, a Federal court will defer to an agency's reasonable interpretation of its
ambiguous regulation. Employing Auer deference, the Court held that the Secretary's argument
that the language regarding claims for increase in § 3.157(b) was paired with the language
regarding claims that had been allowed, and the "language regarding claims to reopen is paired
with the language regarding disability compensation claims that previously had been disallowed
for service-connected disabilities being noncompensable in degree" was reasonable.61 In a separate
opinion, concurring in part and dissenting in part, Judge Davis agreed that § 3.157(b) was
ambiguous but disagreed with the majority's opinion about the language pairings in § 3.157(b).
Judge Davis too employed Auer deference principles. However, he explained that deferring to the
Secretary's interpretation would render the 1987 amendment to § 3.157(b) superfluous. In short,
Judge Davis concluded that the ambiguous language in § 3.157(b) should be interpreted in the
veteran's favor.62
As we explained above, appellant recognizes that if the meaning of § 3.157(b) established
in our en banc decision in Pacheco controls, he would not succeed. 63 Not surprisingly, the
Secretary agrees. 64 This brings us to appellant's argument that we are not bound by Pacheco
58
27 Vet.App. at 30.
59
Id. at 26.
60
Id.
61
Id. at 27.
62
Id. at 36-42 (Davis. J., concurring in in part, dissenting in part). Appellant basically argues that he would prevail
under a view of § 3.157(b), along the lines Judge Davis articulated in his separate opinion in Pacheco.
63
See generally Appellant's Br. at 10.
64
See Secretary's Br. at 7-10.
11
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because that decision was premised on principles of Auer deference, principles that have been
eroded by the Supreme Court in Kisor. 65
Appellant's argument raises important questions about how changes in the law dealing with
the circumstances under which Federal courts defer (or not) to administrative agencies' views about
the law should be employed to undermine existing precedent. As we explain below, we reject
appellant's argument that Kisor requires us to revisit Pacheco merely because the Court employed
Auer deference.
3. Kisor does not require us to revisit Pacheco.
As we mentioned earlier, before Kisor the Supreme Court had directed Federal courts use
the framework established in Auer to assess whether to defer to an agency's interpretation of its
own ambiguous regulations. Under Auer, a Federal court must defer to the agency's interpretation
of an ambiguous regulation so long as such an interpretation is reasonable, unless that
interpretation is inconsistent with the language of the regulation, is otherwise plainly erroneous,
or does not represent the agency's considered view on the matter.66 Relevant to this appeal and as
we explained earlier, in Pacheco the Court used the Auer deference doctrine to interpret § 3.157(b).
The Pacheco Court first explained why it concluded that § 3.157(b) was ambiguous, and then it
considered whether the Secretary's interpretation should be afforded deference because it was a
reasonable interpretation of the ambiguous regulation. The majority of the en banc Court
concluded that deference to the Secretary's interpretation of § 3.157(b) under Auer was
warranted.67
The Pacheco majority's reliance on Auer is the hook appellant uses to try to avoid the fatal
implication of Pacheco for his argument. Specifically, he argues that the Supreme Court's June
2019 decision in Kisor requires that we revisit Pacheco. In Kisor, the Supreme Court revisited
Auer. While the Supreme Court did not overrule Auer, it significantly reshaped the law concerning
how Federal courts determine whether they should defer to an agency's view of an ambiguous
regulation.68 It may seem counterintuitive, but the details of the Supreme Court's changes to the
65
Appellant's Br. at 9-10.
66
519 U.S.at 461-62.
67
27 Vet.App. at 26-27.
68
Kisor, 588 U.S. at 574-575. The Court has previously described how Kisor clarified the Auer framework. See
LaBruzza, 37 Vet.App. at 117.
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Auer doctrine in Kisor are not particularly relevant here.69 The reason is that appellant argues that
Kisor requires that we revisit Pacheco because that decision employed the Auer framework. If, as
we hold is the case, Kisor does not require us to revisit Pacheco, we need not consider the details
of so-called Kisor deference.
To be clear, the essential question before us is whether the Supreme Court meant for Kisor
to be applied only to future situations in which Federal courts confront an ambiguous regulation
and an agency advances an interpretation of that regulation. Or, in contrast, whether the Supreme
Court meant that in addition to such future use of Kisor deference, Federal courts would have to
reconsider earlier decisions in which they had deferred to an agency interpretation of an ambiguous
regulation under Auer, at least to the extent of considering whether such earlier decisions
comported with the spirit of the new Kisor deference. Appellant relies on this second possible
interpretation to support his argument in this appeal. Unfortunately, the Supreme Court said
nothing about this issue (i.e., future only vs. future and reconsideration) in Kisor.
The Supreme Court's silence in Kisor about how its decision would apply to cases decided
under Auer was on display when our Court decided LaBruzza.70 There, the Court considered the
very question we return to today, namely whether Kisor requires us to revisit cases that were
decided under the Auer framework. LaBruzza concerned whether the Court remained bound by
our decision in Cantrell v. McDonough,71 which used an Auer deference analysis to conclude that
the phrase "employment in a protected environment" in 38 C.F.R. § 4.16 was ambiguous.72 In
LaBruzza, the Court stated that, given that Kisor, which clarified the framework for regulatory
interpretation, was decided after Cantrell, "the Court concludes that to conform with controlling
Supreme Court precedent we must revisit the ambiguity question."73 And so it would seem that
appellant is on solid footing that under LaBruzza we would be required to reconsider our decision
in Pacheco interpreting § 3.157(b) because it was based on an Auer judicial deference analysis.
After all, just as this panel is bound by Pacheco unless we are required to revisit the decision under
69
The Court describes how the Auer framework should be applied under Kisor. See LaBruzza, 37 Vet.App. at 117.
70
37 Vet.App. 111.
71
28 Vet.App. 382 (2017).
72
LaBruzza, 37 Vet.App. at 117; Cantrell, 37 Vet.App. at 116.
73
LaBruzza, 37 Vet.App. at 119.
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Kisor, we are equally bound by Labruzza unless that decision had been undercut in some way.74
That is what horizontal stare decisis is all about. However, as we explain next, the world of
administrative law changed dramatically since LaBruzza was decided. Indeed, it changed
dramatically in the weeks after we heard oral argument in this appeal. And those changes suggest
that LaBruzza's approach to revisiting cases decided under the Auer framework is no longer
controlling.
On June 28, 2024, the Supreme Court decided Loper Bright,75 in which the Court overruled
its landmark decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.76 For
40 years, Chevron provided the framework explaining when Federal courts were to defer to an
agency's permissible interpretation of an ambiguous statute that the agency was empowered to
execute. This is not the case to explore how the post-Chevron legal landscape looks. No doubt, the
Court will have ample opportunity to do so in the future. But the fact is, those details are not
relevant to the case before us. However, Loper Bright provides important guidance for us because
in it the Supreme Court specifically discussed how the change in administrative law that case
creates should apply to existing decisions. Specifically, the Supreme Court held that in overruling
Chevron,
we do not call into question prior cases that relied on the Chevron framework. The
holdings of those cases that specific agency actions are lawful—including the Clean
Air Act holding of Chevron itself—are still subject to statutory stare decisis despite
our change in interpretive methodology. See CBOCS West, Inc. v. Humphries, 553
U.S. 442, 457 (2008). Mere reliance on Chevron cannot constitute a "'special
justification'" for overruling such a holding, because to say a precedent relied on
Chevron is, at best, "just an argument that the precedent was wrongly decided."
Haliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014) (quoting
Dickerson v. United States, 530 U.S. 428, 443 (2000)). That is not enough to justify
overruling a statutory precedent. [77]
So, what do we do given that Loper Bright answered the same generic question of
administrative law and statutory stare decisis in a way that is at odds with how our Court
approached the question in Labruzza? As we will explain, we conclude that Loper Bright
74
See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (Court is bound by prior panel and en banc opinions, and "a
panel or single judge may not render a decision which conflicts materially with such earlier panel or en banc opinion").
75
144 S. Ct. 2244, 603 U.S. __ (2024).
76
467 U.S. 837 (1984). See Loper Bright, 144 S. Ct. at 2273, 603 U.S. __,__.
77
Loper Bright, 144 S. Ct. at 2273, 603 U.S. at __,__. Note that we have elected to include in our quotation the cases
on which the Supreme Court relied to reach its conclusion.
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sufficiently undercuts LaBruzza's approach to revisiting existing decisions based on Auer. But
before we explain why we reach that conclusion, we pause to note two things about LaBruzza.
First, we do not hold that the LaBruzza Court was wrong at the time it decided to revisit a case
decided under the Auer framework. As we stated, Kisor was silent on that issue and the Court did
not have the benefit of the Supreme Court's guidance in Loper Bright. Second, nothing in our
decision today calls into question the substantive holding in LaBruzza regarding the meaning of
the phrase "employment in a protected environment."78 LaBruzza's rule on that question remains
the law. Again, that is what horizontal stare decisis is all about.
Let's return to why we conclude that Loper Bright informs us that we should not follow
LaBruzza with respect to whether to revisit cases decided under the now-altered Auer framework.
We have little guidance in our Court's caselaw about what authority a panel of this Court has to
follow existing caselaw when it comes to precedent that has been undermined by a later decision
from a superior court such as the Supreme Court or the Federal Circuit.79 But we are not writing
on a blank slate because other Federal appellate courts have addressed this question through rules
often described under the rubric of a "prior precedent rule." For example, in Troy v. Samson
Manufacturing Corp.,80 the Federal Circuit adopted the Ninth Circuit's prior precedent rule from
Miller v. Gammie to determine how the Federal Circuit would decide if a prior precedent had been
undermined by later developments.81 In Miller, the Ninth Circuit held that a three-judge panel
cannot overrule a prior panel's decision in light of subsequent Supreme Court precedent unless that
prior decision was irreconcilable with that Supreme Court precedent.82 In articulating this "clearly
irreconcilable" rule, Miller held that "the issues decided by the higher court need not be identical
in order to be controlling. Rather, the relevant court of last resort must have undercut the theory or
reasoning underlying the prior circuit precedent in such a way that the cases are clearly
irreconcilable."83
78
LaBruzza, 37 Vet.App. at 123-24.
79
Id. at 118-19.
80
758 F.3d 1322, 1326 (Fed. Cir. 2014).
81
335 F.3d 889, 893 (9th. Cir. 2003).
82
Id. at 893-94.
83
Id. at 900.
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Just as the Federal Circuit did for assessing its caselaw under the prior precedent rule, we
conclude that the Ninth Circuit's test in Miller strikes the right balance between the importance of
stare decisis and adherence to now-existing law articulated by a relevant higher tribunal. The test
is strict enough that the benefits of stare decisis, such as providing clear rules for litigants and
judges to follow, will not be discarded lightly. 84At the same time, the test allows a court to avoid
rendering new decisions that no longer are supported by the then-extant legal landscape. So, we
adopt Miller as the prior precedent rule for our Court.
Applying Miller, we conclude that, to the extent that LaBruzza's approach to revisiting a
case after the Supreme Court's Kisor decision requires us to revisit existing precedent based on
Auer, LaBruzza is no longer controlling because the Supreme Court's Loper Bright decision is
irreconcilable with that approach. We recognize that Loper Bright concerned the Chevron doctrine
and LaBruzza addressed Kisor and the Auer doctrine. But Chevron and Auer were closely aligned.
Both cases dealt with when and how a Federal court should defer to an agency's interpretation of
an ambiguous controlling legal authority, a statute on the one hand, and a regulation on the other.
Moreover, in both Loper Bright and Kisor, the Supreme Court significantly altered the preexisting
legal framework governing the deference question. And finally, the changes the Supreme Court
wrought by overruling Chevron and significantly altering Auer present the same central challenge
about whether the alteration should be forward looking only or be applied to upset existing
precedent. The Supreme Court's reasoning for why its change to Chevron in Loper Bright should
be applied only to future decision applies with equal force to why its changes to Auer in Kisor
should be applied in the same way. Indeed, we are hard pressed to find a principled reason to apply
a different rule for Kisor than what we are told to apply in Loper Bright.
We recognize that the "clearly irreconcilable" standard in Miller is a high one, but it is met
here. There is simply no way in which we can apply that portion of LaBruzza concerning the
treatment of existing precedent, in light of Kisor, in a manner that is consistent with the Supreme
Court's recent decision in Loper Bright. We reiterate that LaBruzza's holding concerning the
meaning of the phrase "employment in a protected environment" remains sound, and that the
84
In Payne v. Tennessee, the U.S. Supreme Court recognized the importance of stare decisis, specifically holding that
"[s]tare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development
of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the
judicial process." 501 U.S. 808, 827 (1991). However, the Supreme Court also recognized that there are circumstances
in which following governing decisions is "unworkable" or "practically impossible." Id. at 827-28. (internal citation
omitted).
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Court's approach to revisiting prior precedent in that case was an adept effort to conform to the
Supreme Court's decision in Kisor, which was silent as to whether its framework was to only apply
to future situations, without the benefit of the Supreme Court's recent guidance in Loper Bright.
Considering the foregoing, we reject appellant's argument that we are not bound by
Pacheco and conclude that he has failed to demonstrate that § 3.157(b) as interpreted in Pacheco
entitled him to an August 1985 effective date.85 Because Pacheco remains binding law—negating
the threshold step in appellant's argument—we need not consider the remainder of appellant's
assertions concerning the merits.86 Indeed, we are not allowed to do so because, to repeat, we are
bound by Pacheco.87 Therefore, we will affirm the Board's denial of an August 1985 effective date
for appellant's entitlement to service connection for tinea pedis.
B. Earlier Effective Date–November 1987
Having rejected appellant's argument for a 1985 effective date, we now consider his
alternative argument that the Board clearly erred when it determined that his November 6, 1987,
submission to VA was not an informal claim for service connection for tinea pedis. Specifically,
appellant maintains that the Board did not comply with the Federal Circuit's decision in Shea v.
Wilkie.88 Appellant asserts that in his November 6, 1987, letter he "attempted to re-raise the claims
denied by the March 1984 [B]oard decision" and his intent was "clearly identified in the documents
surrounding" that letter.89 Appellant also contends that he was referring to his previously denied
tinea pedis claim when he used the phrase "compensable related conditions previously identified,"
because he has always treated his pes planus and tinea pedis claims as one claim. Our review of
the Board's decision belies appellant's assertions.
85
See Hilkert v. West, 12 Vet.App. 145, 151 (2004) (en banc), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
86
See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) ("[T]he Court will not ordinarily consider additional allegations
of error that have been rendered moot by the Court's opinion or that would require the Court to issue an advisory
opinion.").
87
Although the Court will not consider the merits of Mr. Rorie's arguments concerning his "disallowed or denied"
theory, we note that in his briefs Mr. Rorie appeared to conflate VA's denial of service connection for tinea pedis with
a claim that had been "disallowed for the reason that the disability was not compensable in degree," which is required
under 38 C.F.R. § 3.157(b). However, during oral argument Mr. Rorie's counsel confirmed the understanding that
appellant's tinea pedis claim had not been "disallowed for the reason that the disability was not compensable in
degree." OA at 22:01-:26.
88
926 F.3d at 1368-69.
89
Appellant's Br. at 13-14.
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"[T]he essential requirements of any claim" include "(1) an intent to apply for benefits
[and] (2) an identification of the benefits sought."90 In Shea, the Federal Circuit held that "while a
pro se claimant's 'claim must identify the benefit sought,' the identification need not be explicit in
the claim-stating documents, but can also be found indirectly through examination of evidence to
which those documents themselves point when sympathetically read."91 Further, "in deciding what
disabilities, conditions, symptoms, or the like the claim-stating documents are sympathetically
understood to be identifying, VA must look beyond the four corners of those documents when the
documents themselves point elsewhere—here, to medical records."92
The Board's determination about whether a claimant filed an informal claim is a finding of
fact that the Court reviews for clear error.93 As factfinder, the Board has the responsibility to assess
and weigh the evidence. 94 We will reverse a factual finding of the Board only when, after
reviewing the evidence of record, we are left with "'a definite and firm conviction that a mistake
has been committed.'"95 For all its findings on a material issue of fact and law, the Board must
support its factual determinations and legal conclusions with a written statement of reasons or
bases that is "adequate to enable a claimant to understand the precise basis for the Board's decision,
as well as to facilitate review in this Court."96 If the Board fails to do so, remand is appropriate.97
In November 1987, appellant submitted a statement in support of his claim that stated:
I am requesting a re-examination of my service-connected disabilities for the
purpose of obtaining an increased disability rating. The basis of this request for a
higher . . . service-connected disability rating is due to a continual worsening of
compensable related conditions previously identified. Past visits and treatments at
VA medical facilities have been largely unsuccessful in curbing the pain and
increased debilitativeness of my service-connected disabilities which have been
further exacerbated by growing older."[98]
90
Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009).
91
926 F.3d at 1368 (quoting 38 C.F.R. § 3.155(a) (2007)).
92
Shea, 926 F.3d at 1369.
93
Sellers v. Wilkie, 30 Vet.App. 157, 163 (2018), rev'd on other grounds, 965 F.3d 1328 (Fed. Cir. 2020).
94
See D'Aries v. Peake, 22 Vet.App. 97, 107 (2008).
95
Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)).
96
Allday v. Brown, 7 Vet.App. 517, 527 (1995).
97
Tucker v. West, 11 Vet.App. 369, 374 (1998).
98
R. at 20,075.
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The Board considered whether the November 1987 statement was an informal claim for service
connection for tinea pedis. The Board explained that
even reviewing [appellant's] November 1987 statements as liberally and
sympathetically as possible, the Board is unable to conclude that [appellant]
submitted an informal claim seeking service connection for tinea pedis, and intent
to apply for service connection for tinea pedis, a request to reopen a previously
denied claim, or point to other evidence which could show intent."[99]
The Board further explained that appellant specifically stated that he was requesting reexamination
of his service-connected disabilities and made no mention of his tinea pedis or skin condition.
Critically, the Board observed that appellant was not service connected for tinea pedis at the time
he made the November 1987 statement.100 Additionally, the Board specifically considered Shea,
concluding that "[u]nlike the facts in Shea, [appellant's] statement did not point to any specific
evidence to suggest service connection was warranted."101 Finally, the Board explained that the
"most reasonable interpretation" of the November 1987 letter is that it expresses an intent to seek
an increased disability rating for his service-connected pes planus disability.102 The Board also
considered evidence surrounding the November 1987 statement and concluded that it only
reaffirmed its conclusion that the November 1987 letter was most reasonably read as a claim for
increase for his service-connected pes planus. And there is a plausible basis in the record for the
Board's determination; specifically, the veteran himself in the November 1987 letter asked VA for
an "increased disability rating" for his "service-connected" disability.103
Further, contrary to appellant's assertions, the Board's decision complied with Shea. The
Board assessed appellant's intent and provided adequate reasons or bases for its conclusion that
appellant's November 1987 was not an informal tinea pedis claim. Appellant cites evidence that
he purports are surrounding documents that should have informed his intent in 1987.104 However,
the documents to which he points pre-date the March 1984 denial of his claim for service
99
R. at 10.
100
Id.
101
Id.
102
Id.
103
R. at 20,075; see Gilbert, 1 Vet.App. at 53.
104
See Appellant's Br. at 14 (citing R. at 20,148-52 (Aug. 1983 SOC), 20,162 (Apr. 1983 rating decision).
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connection for tinea pedis.105 Appellant never explains how statements in 1983 could possibly
inform his intent in November 1987. We won't attempt to fill in the blanks.106
The bottom line is that the Board's finding that the November 1987 statement was not an
informal claim is not clearly wrong. So, we will affirm the Board's denial of a November 1987
effective date for appellant's entitlement to service connection for tinea pedis.
III. CONCLUSION
After consideration of the parties' briefs, oral argument, the governing law, and the record,
the Court AFFIRMS the August 19, 2022, Board decision.
TOTH, Judge, concurring: A concurrence, it can be said, is where a judge agrees with
ninety-eight percent of a decision but writes only about the two percent he disagrees with. That's
certainly the case here, as I join Judge Allen's fine opinion in all but one respect. The two percent
here, as it were, is the premise that our decision in LaBruzza v. McDonough, 37 Vet. App. 111
(2024) can be read as broadly supporting the relitigation of countless decisions from this Court
that relied on Auer deference.
I read LaBruzza as more modest in scope and ambition. Tasked with interpreting the
previously undefined regulatory phrase "in a protected environment," the Court in LaBruzza
declined to heed analysis from Cantrell v. Shulkin, 28 Vet. App. 392 (2017) that regarded the
phrase as ambiguous, on grounds that the methodology and rationale undergirding Cantrell had
been disavowed by intervening Supreme Court precedent. This is perfectly sensible: it's hard to
view Cantrell's ambiguity ruling as binding on all future panels when such determinations are
normally inchoate predicates of ultimate rulings recognizing an official interpretation. Faced with
a still-undefined regulatory phrase, LaBruzza recognized that the methodology of the inquiry it
was tasked to perform had been recast in fundamental ways by the Supreme Court's decision in
Kisor v. Wilkie, 588 U.S. 558 (2019). In resuming the unfinished task of assigning an official
interpretation to the phrase, the Court merely revisited predicate findings that were no longer
105
See R. at 20,148-152 (Aug. 1983 SOC), 20,162 (Apr. 1983 rating decision).
106
See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (per curiam) ("The Court requires that an appellant plead
with some particularity the allegation of error so that the Court is able to review and assess the validity of the
appellant's arguments."), vacated on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (per
curiam order); see also Locklear, 20 Vet.App. at 416.
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tenable in light of intervening precedent from the Supreme Court about how deference functions.
Nothing in LaBruzza, however, proposes that longstanding regulatory definitions set out in
decisions such as Pacheco v. Gibson, 27 Vet. App.21 (2014) are up for grabs.
21