Robert H. Johnson v. Douglas A. Collins

Case: 23-7589 Page: 1 of 15 Filed: 03/26/2025

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 23-7589

ROBERT H. JOHNSON, APPELLANT,

V.

DOUGLAS A. COLLINS,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided March 26, 2025)

Robert W. Legg, of Arlington, Virginia, for the appellant.

Richard J. Hipolit, Acting General Counsel; Mary Ann Flynn, Chief Counsel; Abhinav

Goel, Acting Deputy Chief Counsel; and Courtland D. McEneny Ingraham, all of Washington,

D.C., were on the brief for the appellee.

Before BARTLEY, TOTH, and JAQUITH, Judges.

BARTLEY, Judge: In 2016, veteran Robert H. Johnson filed claims for service connection

for diabetes mellitus, bilateral lower extremity peripheral neuropathy, and hypertension, all based

on herbicide exposure. After a VA regional office (RO) found that he was not exposed to

herbicides, Mr. Johnson appealed those claims to the Board of Veterans' Appeals (Board). While

the Board appeal was pending, Congress passed the Sergeant First Class Heath Robinson Honoring

our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), which provided a

presumption of herbicide exposure for certain veterans, including Mr. Johnson. He then filed

supplemental claims for the same disabilities under the PACT Act. The RO in March 2023 granted

Mr. Johnson's supplemental claims for those disabilities. In a December 11, 2023, decision, the

Board dismissed Mr. Johnson's appeal, concluding that the RO's grants of service connection under

the PACT Act resolved the Board appeal.

Mr. Johnson timely appealed to this Court and we have jurisdiction to review the Board

decision. See 38 U.S.C. §§ 7252(a), 7266(a). This matter was referred to a panel of this Court to

address the propriety of the Board's conclusion that the appeal before it, based on the veteran's

2016 pre-PACT Act claims, was moot. Because Mr. Johnson appealed his pre-PACT-Act claims

to the Board seeking one review on appeal, and his later PACT Act claims were granted by the

Case: 23-7589 Page: 2 of 15 Filed: 03/26/2025

RO, a lower tribunal, and advanced in a different claim stream based on a liberalizing law while

his Board appeal was pending, we reverse the Board's conclusion that the appeal is moot. The RO's

grants of service connection under the PACT Act did not resolve the pending Board appeal.

Therefore, we will set aside the December 2023 Board decision and remand the appeal for the

Board to process the pre-PACT Act claims to completion.

I. BACKGROUND

A. Mr. Johnson's Pre-PACT Act Claim Stream

Mr. Johnson served on active duty in the U.S. Marine Corps from September 1972 to July

1974. Record (R.) at 4197. Between March and September 1973, he served as a security guard at

Nam Phong Royal Thai Air Force Base (RTAFB). R. at 4106, 4111.

In May 2016, Mr. Johnson filed claims for service connection for diabetes, bilateral lower

extremity peripheral neuropathy, and hypertension, asserting exposure to Agent Orange. R. at

4199-202; see R. at 4208-10 (July 2015 intent to file form). In July 2016, he stated that he served

as a security guard at Nam Phong RTAFB and "patrolled the perimeter every night [he] was there."

R. at 3976; see R. at 3970-72 (photographs submitted in October 2016).

In February 2017, the RO denied the claims, finding that Mr. Johnson did not serve in the

Republic of Vietnam and there was no evidence of herbicide exposure during service. R. at 3823-

27. Following a March 2017 request to reopen the claims, see R. at 3660, the RO in March 2017

again denied the claims, R. at 3659-62.

In March 2018, Mr. Johnson filed a Notice of Disagreement (NOD). R. at 3641-42. At that

time, he asserted that his hypertension was secondary to diabetes. R. at 3642. In April 2020,

Mr. Johnson timely perfected the appeal to the Board. R. at 3127-28; see R. at 3348-80 (March

2020 Statement of the Case). In January 2021, Mr. Johnson argued that service connection was

warranted because "VA has recognized that herbicides were used extensively in Thailand during

the Vietnam War." R. at 3047 (citing Parseeya-Picchione v. McDonald, 28 Vet.App. 171, 176-77

(2016); VA ADJUDICATION PROCEDURES MANUAL REWRITE 2010 (M21-1 MR)); see R. at 3048

(arguing that, based on the M21-1MR and the evidence submitted, he had "established . . . in-

service exposure").

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B. The PACT Act

On August 10, 2022, the PACT Act became law. Pub. L. 117-168, 136 Stat. 1759. The

PACT Act is wide-reaching legislation, expanding VA health care and compensation benefits for

veterans exposed to burn pits and other toxic substances.1 One important feature of the PACT Act

is that it expanded the statutory presumption of herbicide exposure (38 U.S.C. § 1116) beyond

veterans who served in the Republic of Vietnam. Pub. L. 117-168, § 403; see Updating VA

Adjudication Regulations for Disability or Death Benefit Claims Related to Exposure to Certain

Herbicide Agents, 89 Fed. Reg. 9803, 9804 (Feb. 12, 2024) (proposed rule). Most notable here,

the expanded presumption covered veterans who served "in Thailand at any United States or Royal

Thai base during the period beginning on January 9, 1962, and ending on June 30, 1976, without

regard to where on the base the veteran was located or what military job specialty the veteran

performed." Pub. L. 117-168, § 403 (adding 38 U.S.C. § 1116(d)(2)); see 38 U.S.C. § 1116(d)(2)

(effective Aug. 10, 2022); see also 89 Fed. Reg. at 9806-07 (proposing a corresponding regulatory

change to 38 C.F.R. § 3.307).2

C. Mr. Johnson's PACT Act Claim Stream

After passage of the PACT Act, Mr. Johnson, in October 2022, while his diabetes,

peripheral neuropathy, and hypertension claims were on appeal at the Board, filed supplemental

claims for the same conditions, specifically referencing the PACT Act. R. at 1609-11. In March

2023, VA personnel completed a toxic exposure risk activity memorandum confirming that

Mr. Johnson qualified for a presumption of herbicide exposure based on his service in Thailand.

R. at 239-41. Later in March 2023, the RO granted service connection for diabetes, bilateral lower

extremity diabetic peripheral neuropathy, and hypertension based on the PACT Act's expanded

herbicide-exposure presumption. R. at 228-37. The RO assigned effective dates of August 10,

2022, commensurate with enactment of the PACT Act. Id.; see 38 C.F.R. § 3.114 (2024). In May

2023, Mr. Johnson appealed to the Board, seeking earlier effective dates for all disabilities and

1

See, e.g., The PACT Act and Your VA Benefits, available at https://www.va.gov/resources/the-pact-act-and-

your-va-benefits/ (last accessed Mar. 20, 2025).

2

In Military-Veterans Advocacy Inc. v. Sec'y of Veterans Affairs, the U.S. Court of Appeals for the Federal

Circuit (Federal Circuit) dismissed that portion of a rulemaking challenge seeking to address VA's practices outlined

in the M21-1 regarding claims of exposure at RTAFB because the PACT Act provided the "full relief" requested by

the petitioner. 63 F.4th 935, 943 (Fed. Cir. 2023), cert. denied, 144 S. Ct. 682 (2024).

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arguing that he had a pending Board appeal regarding service connection based on herbicide

exposure. R. at 162-63.

D. Board Decision on Appeal

In December 2023, the Board dismissed as moot the pending pre-PACT Act appeal

regarding service connection for diabetes, bilateral lower extremity peripheral neuropathy, and

hypertension. R. at 5-6. The Board stated that the claims had been granted by the RO in March

2023 and, thus, "there remain no allegations of fact or law for appellate consideration on the

claim[s]." R. at 6 (citing 38 U.S.C. § 7105; 38 C.F.R. § 19.55). This appeal followed.

II. THE PARTIES' ARGUMENTS

Mr. Johnson argues that the Board erred in dismissing the appeal as moot. He frames the

issue as whether there are non-moot pending claims based on herbicide exposure on a non-

presumptive basis. Appellant's Brief (Br.) at 7-8. Thus, and because he asserts that the Board had

jurisdiction over the question of herbicide exposure, he argues that the Board failed to satisfy its

obligation to fully adjudicate that issue. Id. He asserts prejudice in the Board's error because

without Board review of the RO's 2017 pre-PACT Act findings of no evidence of direct herbicide

exposure, those findings would be final and binding on subsequent adjudicators. Id. at 9.

The Secretary argues that the Board was correct to dismiss the appeal because the benefit

sought by Mr. Johnson—service connection—was granted by the RO in the March 2023 decision.

He disagrees with Mr. Johnson's contentions, arguing that multiple theories of service connection

pertaining to the same benefit are part of the same claim. Secretary's Br. at 6 (citing Roebuck v.

Nicholson, 20 Vet.App. 307, 313 (2006)). He analogizes Mr. Johnson's case to Aviles-Rivera v.

McDonough, No. 2022-2084, 2024 WL 2952689 (Fed. Cir. June 12, 2024) (nonprecedential per

curiam order) (Aviles-Rivera II), vacating and dismissing as moot 35 Vet.App. 268 (2022) (Aviles-

Rivera I), asserting that the Federal Circuit's dismissal based on mootness in Aviles-Rivera II is

"instructive and persuasive." Secretary's Br. at 7. He characterizes Mr. Johnson's arguments as a

mere attempt to obtain earlier effective dates of service connection and argues that the Board

lacked jurisdiction to address the downstream issue of the appropriate effective date. Id. at 8 (citing

Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); Holland v. Gober, 10 Vet.App.

443, 445 (1997)). He notes that Mr. Johnson appealed the March 2023 RO decision to the Board,

seeking earlier effective dates for the disabilities that were granted under the PACT Act.

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On March 12, 2025, the Secretary filed a Solze notice with the Court that on February 20,

2025, the Board remanded the veteran's earlier-effective-date claims for further development. See

Solze v. Shinseki, 26 Vet.App. 299, 301 (2013) ("In all cases before this Court, the parties are under

a duty to notify the Court of developments that could deprive the Court of jurisdiction or otherwise

affect its decision.").

III. ANALYSIS

A. Solze notice of VA proceedings occurring subsequent to issuance of the

Board decision on appeal.

Because the February 2025 Board remand order that was the subject of the Solze notice

post-dates the December 2023 Board decision we are charged with reviewing, we cannot rely on

it to "make new findings of fact or to make substantive decisions about whether the Board erred"

in December 2023 when it dismissed Mr. Johnson's appeal. Phillips v. McDonough, 37 Vet.App.

394, 398 (2024) (citing Euzebio v. McDonough, 989 F.3d 1305, 1323 (Fed. Cir. 2021)). Thus, we

address that Board order here only to confirm that a live case or controversy is still before us. Id.;

see Philbrook v. Wilkie, 32 Vet.App. 342, 345 (2020) ("As a jurisdictional requirement, the Court

has an independent duty to ensure that a case or controversy still exists.") (citing Demery v. Wilkie,

30 Vet.App. 430, 434 (2019)), rev'd on other grounds sub. nom Philbrook v. McDonough, 15 F.4th

1117 (Fed. Cir. 2021).

In making this determination, the Court first notes that the February 2025 Board remand is

not a final decision that granted or denied Mr. Johnson benefits. See, e.g., Mote v. Wilkie, 976 F.3d

1337, 1341-42 (Fed. Cir. 2020) (noting that a final Board decision is one that grants or denies

benefits and characterizing a Board remand order as being "en route to an ultimate Board

decision"); Stiles v. McDonough, 37 Vet.App. 328, 332 (2024) ("[R]emand orders are neither final

nor adverse to a veteran."). As noted, the February 2025 Board remand ordered further

development related to Mr. Johnson's earlier effective date claim. Relatedly, the Board remand

order did not provide the relief Mr. Johnson seeks. As discussed below, see infra at III.D.,

Mr. Johnson appealed to the Board in January 2021 to achieve service-connected disability

compensation for three disabilities, based on the extensive evidence of direct herbicide exposure

he submitted, R. at 162. The February 2025 Board remand for further development plainly did not

provide Mr. Johnson the full relief that he sought. Further as to mootness, this Court should dismiss

an appeal as moot "only if it is impossible for us to grant 'any effectual relief whatever.'" Philbrook

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32 Vet.App. at 345 (quoting Mission Product Holdings, Inc. v. Tempnology, 587 U.S. 370, 377

(2019) (citing 13C C. Wright, A. Miller & E. Cooper, FEDERAL PRACTICE AND PROCEDURE

§ 3533.3, p.2 (3d ed. 2008) ("[A] case is not moot so long as a claim for monetary relief

survives."))). Thus, the Court concludes that a live case or controversy remains.

B. The March 2023 RO grants of service connection under the PACT Act, by a lower

tribunal and occurring in a second claim stream, did not resolve the pending

pre-PACT-Act Board appeal.

To set the stage, there are two distinct claim streams in Mr. Johnson's case. A pre-PACT

Act claim stream began in May 2016 based on the veteran's assertion of herbicide exposure while

serving on an RTAFB; in that claim stream the veteran appealed the RO's denials of service

connection to the Board by filing an NOD in March 2018. A separate PACT Act claim stream

began in October 2022, when Mr. Johnson filed service-connection claims based on the

liberalizing provision of the PACT Act that established a presumption that certain veterans who

served on RTAFBs were exposed to herbicides; in March 2023 the RO, based on PACT Act

provisions, granted service connection for the relevant disabilities. The Secretary argues that the

RO's March 2023 service-connection grants under the PACT Act resolved the live pre-PACT Act

claims that were pending on appeal before the Board and not yet the subject of a Board decision.

Caselaw from early in the Court's history firmly establishes that the RO, as a lower tribunal,

cannot review a decision of the Board, a higher tribunal. See, e.g., Smith v. Brown, 35 F.3d 1516,

1526 (Fed. Cir. 1994), superseded on other grounds by 38 U.S.C. § 7111. As a corollary, our

caselaw is also clear that once a claim is in appellate status, "[the] appeal can only be resolved by

an appellate body, i.e., the Board." Jones v. Shinseki, 23 Vet.App. 122, 125 (2009), aff'd on other

grounds, 619 F.3d 1368 (Fed. Cir. 2010). And further, once a claim has been appealed to the Board

but not finally resolved, a subsequent RO decision in a separate claim stream cannot resolve the

pending Board appeal. Bailey v. Wilkie, 33 Vet.App. 188, 203-04 (2021); Warren v. McDonald,

28 Vet.App. 214, 221 (2016); see Terry v. McDonough, 37 Vet.App. 1, 4 (2023); Myers v.

Principi, 16 Vet.App. 228, 235-36 (2002); see also Harper v. Wilkie, 30 Vet.App. 356, 361 (2018)

(noting VA's acknowledgment that "the RO cannot remove a matter from appellate status"). We

address some of these cases in more depth below.

In Warren, the RO denied service connection for sleep apnea and the veteran appealed that

decision to the Board; while the Board appeal was pending, the RO in a later separate claim stream

granted service connection for sleep apnea. 28 Vet.App. at 215-16. When the Board adjudicated

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the appealed claim, it acknowledged the RO's service-connection grant and recharacterized the

issue as entitlement to an earlier effective date for sleep apnea. Id. at 217. But this Court held that

the Board erred by recharacterizing the claim. We concluded that when a Board appeal has been

filed and is pending, the RO's later grant of service connection in a separate claim stream could

not resolve the sleep apnea appeal properly within the Board's jurisdiction. Id. at 221 ("The

decision of the lower adjudicative body, the RO, cannot finally decide an issue already on appeal

to the Board, the higher administrative appellate body." (citing Jones, 23 Vet.App. at 125; Juarez

v. Peake, 21 Vet.App. 537, 543 (2008))); see also Terry, 37 Vet.App. at 4-5. Therefore, in Warren

we remanded for the Board to address the merits of the earlier service-connection claim.

28 Vet.App. at 221-22.

And again in Bailey, the veteran argued to this Court that the Board erred while

adjudicating a claim for an increased disability evaluation for prostate cancer by failing to

adjudicate a reasonably raised claim for service connection for lymphedema as a complication of

the veteran's cancer treatment. 33 Vet.App. at 197. We agreed, but in addressing the proper remedy

we had to consider whether the secondary claim was moot due to an intervening RO grant of

service connection for lymphedema in a separate claim stream. Id. at 203-04. Relying on Warren,

we held that a remand of the service-connection claim was proper because "the RO decision could

not and did not divest the Board of jurisdiction over the veteran's initial appeal." Id. at 204 (citing

Warren, 28 Vet.App. at 221).

Warren and Bailey have a salient factor in common with Mr. Johnson's case—they deal

with situations involving two distinct claim streams, with the original claim stream still pending

final Board adjudication. In both Warren and Bailey, the Board failed to acknowledge and

adjudicate a pending service-connection appeal properly within its power to review. See Bailey,

33 Vet.App. at 203; Warren, 28 Vet.App. at 220. Thus, in both cases, we held that remand for the

Board to adjudicate the appealed claims to completion was required. See Bailey, 33 Vet.App. at

204 (remanding to "preserve[] the possibility of an earlier effective date and safeguard[] against

any preclusive effect of the later RO decision"); Warren, 28 Vet.App. at 221 (remanding because

the later grant by the RO "was only able to grant service connection" effective the date of the

second claim). Although the Board did not overlook Mr. Johnson's pending pre-PACT Act claims,

its misunderstanding that the RO's 2023 decision could moot the pending Board appeal from a

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different and earlier still-pending claim stream led to the same problem that arose in Warren and

Bailey. Without doubt, then, the Court must decide Mr. Johnson's case similarly.

Thus, as in Bailey and Warren, the Court concludes that remand is the proper remedy here,

so that the Board may process Mr. Johnson's appeal in the pre-PACT Act claim stream to

completion. See Bailey, 33 Vet.App. at 204; Warren, 28 Vet.App. at 221. That Mr. Johnson

appealed to the Board the issue of the proper effective date assigned by the RO in a different claim

stream does not affect our conclusion because the RO decision cannot resolve a Board appeal and

the "veteran should not be punished for attempting to preserve the earliest possible effective date

for his claims," especially in the distinct-claim-streams context. Bailey, 33 Vet.App at 204 n.9

(citing Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009)); see Comer, 552 F.3d at 1369 ("The

VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny

compensation to a veteran who has a valid claim.").3

C. The Board overlooked the significance of the PACT Act as a liberalizing law.

Further supporting the Court's conclusion is the very nature of Mr. Johnson's second claim

stream in this case. That claim stream was directly generated by passage of the PACT Act, R. at

1609-11, momentous legislation that, among other things, significantly expanded eligibility for

VA healthcare and benefits for veterans with toxic exposures and those with Vietnam, Gulf War,

and post-9/11 service. Although in 2016 Mr. Johnson filed claims for service connection for the

disabilities at issue in this case that remain pending on appeal, almost immediately after the PACT

Act became effective the veteran filed under the new law.4

When a claimant raises multiple theories to establish service connection, generally all

theories of service connection are part of the same claim. See Schroeder v. West, 212 F.3d 1265,

1269-70 (Fed. Cir. 2000); Roebuck, 20 Vet.App. at 313 ("[A]lthough there may be multiple

theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain

to the same benefit for the same disability, they constitute the same claim."). For example, it

generally would not matter whether a veteran attempts to establish service-incurrence through

3

Accord Green v. McDonough, 37 Vet.App. 127, 138 (2024) (holding that an intervening RO grant of

entitlement to a total disability evaluation based on individual unemployability (TDIU) did not moot the veteran's

TDIU appeal stemming from an earlier claim stream); Harper, 30 Vet.App. at 360-62 (holding that an intervening RO

grant of TDIU did not terminate the veteran's TDIU appeal stemming from an earlier claim stream).

4

Although the first claim stream in this case is subject to less restrictive legacy evidence-submission rules

and the second claim stream is subject to Veterans Appeals Improvement and Modernization Act rules, the parties

submitted no argument related to this distinction and the Court will not address that issue further.

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evidence of direct herbicide exposure or presumed exposure. See Bingham v. Principi, 18 Vet.App.

470, 474 (2004) ("[D]irect and presumptive service connection are, by definition, two means (i.e.,

two theories) by which to reach the same end, namely service connection."), aff'd, 412 F.3d 1346

(Fed. Cir. 2005).5 As we have said: "A claimant need only succeed on one theory of the claim in

order to prevail on the underlying claim; therefore, if the Board were to grant service connection

based on the remaining theory, this Court's adjudication of any other theories would result in a

waste of judicial resources." Roebuck, 20 Vet.App. at 315. However, Schroeder, Bingham,

Roebuck and like cases are readily distinguishable from Mr. Johnson's situation.

Roebuck addressed a unique situation where the Board sua sponte bifurcated a single claim

of service connection for a lung disorder and issued separate appellate decisions, separated by 10

months, as to the veteran's separate theories of service connection. 20 Vet.App. at 310-11. The

ultimate question in Roebuck was whether the Court had jurisdiction to review both Board

decisions when the veteran had timely appealed only the second Board decision, and the Court

answered that question in the affirmative. Id. at 312-17.6 Thus, in Roebuck, the veteran raised two

theories of service connection within a single claim stream, which the Board unilaterally

bifurcated. And Schroeder and Bingham likewise dealt with a single claim stream. See Schroeder,

212 F.3d at 1267-68; Bingham, 18 Vet.App. at 474, However, Mr. Johnson's case is

distinguishable because he raised two separate theories of entitlement in separate claim streams.

And, significantly, one of those theories was based on the new PACT Act.

The PACT Act, among other things and as relevant to Mr. Johnson, expanded the previous

long-standing statutory herbicide-exposure presumption to certain veterans serving outside the

Republic of Vietnam. See 89 Fed. Reg. at 9804. A legal provision that creates "a presumption that,

when certain conditions are met, a crucial element of a service-connection case is presumed

proved" is a liberalizing law. Ortiz v. McDonough, 6 F.4th 1267, 1281 (Fed. Cir. 2021). This is so

5

To the extent that Mr. Johnson appears to argue that the service-incurrence question, as a "threshold issue,"

is appealable divorced from a claim for service connection, Appellant's Br. at 7, we disagree. See Massie v. Shinseki,

25 Vet.App. 123, 126-27 (2011) ("[T]his Court's jurisdiction flows from the Board's decision on a particular claim,

not on a particular argument or theory offered in support of that claim." (citing Robinson v. Peake, 21 Vet.App. 545,

550-51 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Roebuck, 20 Vet.App. at 313)).

6

In Tyrues v. Shinseki, the en banc Court, relying on Roebuck's unique circumstances, limited Roebuck's

holding "to the situation where the Board, in its decision denying one theory, specifically states that the Board will be

issuing, without a remand to the RO, a second decision on another theory of the same claim." 23 Vet.App. 166, 173

(2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated, 565 U.S. 802 (2011), reinstated as modified en banc,

26 Vet.App. 31 (2012), aff'd, 732 F.3d 1351 (Fed. Cir. 2013).

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when the new presumption "eliminated a crucial, concrete component of what was required for the

veteran's affirmative case to establish entitlement." Id. at 1280. A liberalizing law is "one [that

brings] about a substantive change in the law creating a new and different entitlement to a benefit."

Spencer v. Brown, 17 F.3d 368, 372 (Fed. Cir. 1994) (Spencer II), aff'ing 4 Vet.App. 283 (1993)

(Spencer I). The new herbicide-exposure presumption covering veterans who served on an RTAFB

during a particular timeframe eliminated the need for Mr. Johnson to present affirmative evidence

of direct exposure to establish the in-service element of service connection, the crucial component

the RO found missing from his initial claim for benefits. See R. at 3659-62. Therefore, the PACT

Act clearly is a liberalizing law as to the expanded presumptions regarding herbicide exposure.

See Ortiz, 6 F.4th at 1280.7

This is significant because this Court has previously held that claims based on liberalizing

laws are "separate and distinct" from prior claims for the same disability, even when the claims

depend upon the same factual basis. Spencer I, 4 Vet.App. at 288-89. As Spencer indicated, an

"applicant's latter claim, asserting rights which did not exist at the time of the prior claim, is

necessarily a different claim." Id. The Federal Circuit agreed with our analysis, concluding that a

new original claim includes "a new basis of entitlement to a claimed benefit as the result of an

intervening change in law or regulation." Spencer II, 17 F.3d at 373; see Routen v. West, 142 F.3d

1434, 1442 (Fed. Cir. 1998) (stating that a new original claim existed with "an intervening change

in law providing a new cause of action"); see also Ortiz, 6 F.4th at 1277-79 (discussing Routen,

Spencer II, and Spencer I).

Unlike the veterans in Spencer and Routen, who both sought de novo readjudication of

previously denied, final claims on the basis of what they believed were liberalizing laws, see Ortiz,

6 F.4th at 1277, Mr. Johnson filed his PACT Act claims while his pre-PACT Act claims were live

and pending before the Board. However, that difference in posture between Mr. Johnson's case

and Spencer and Routen does not alter the conclusion that claims based on liberalizing laws, such

as the PACT Act as it pertains to Mr. Johnson, are "separate and distinct" claims from pre-PACT

Act claims. See Spencer I, 4 Vet.App. at 288-89; see also Routen, 142 F.3d at 1442; Spencer II,

17 F.3d at 373. The operative fact is that Mr. Johnson's PACT Act claims hinged on a new basis

of entitlement not available when he filed his initial claims, thus making the PACT Act claims

7

Relatedly, when in March 2023 the RO granted service connection, it indicated that the PACT Act was

liberalizing. R. at 230 (citing 38 C.F.R. § 3.114).

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separate and distinct from his earlier, yet still pending, claims. The RO seemed to have realized as

much when it proceeded to adjudicate Mr. Johnson's PACT Act claims despite his pre-PACT Act

claims for the same disabilities then pending before the Board.

In concluding that Spencer and related cases support our conclusion that Mr. Johnson's

later-filed PACT Act claims were separate and distinct from his earlier-filed 2016 claims, and that

the Board therefore erred in dismissing the appeal of his pre-PACT Act earlier-filed claims, we

note that it is well settled that the Board must consider all issues within a claim, either raised by

the claimant or reasonably raised by the record. Robinson, 21 Vet.App. at 552; see Schroeder,

212 F.3d at 1271. Here, although the question of Mr. Johnson's herbicide exposure and entitlement

to service connection based on the pre-PACT Act state of the law was properly before the Board

and had yet to be adjudicated, the Board did not address those issues. It concluded instead that the

issues before it were moot. Having determined that the RO adjudicated under liberalizing PACT

Act provisions claims that were necessarily separate and distinct from those then-pending before

the Board, we must conclude that the Board's mootness determination was in error. We therefore

reverse that determination.

D. The Secretary's effective date argument is not persuasive.

We now address the Secretary's secondary argument. He argues that the only outstanding

issue that remains, since service connection has been granted under the PACT Act, is the

downstream issue of the effective date of Mr. Johnson's service-connected disability benefits.

Secretary's Br. at 8-11. Mr. Johnson counters the Secretary's characterization and argues that it

was error for the Board to fail to adjudicate to completion his 2016 claims for direct service

connection based on herbicide exposure under pre-PACT Act law. Appellant's Reply Br. at 1-4.

The Board noted that the RO in March 2023 granted service connection for diabetes

mellitus, bilateral lower extremity peripheral neuropathy, and hypertension; indicated that it may

dismiss an appeal that fails to allege specific error of fact or law; and determined that, because the

RO had granted service connection, there "remain[ed] no allegations of error of fact or law for

appellate consideration." R. at 6. Because this conclusion is erroneous, the Court cannot allow it

to stand.

Before the Board Mr. Johnson argued that his service personnel records demonstrated that

he spent significant time in service as a security guard at Nam Phong RTAFB. R. at 3046-48

(Statement in Lieu of VA Form 646). He argued that he had submitted color photographs of

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himself on that base with the ground appearing brown against the green jungle background, thus

showing "chemical burn from the use of herbicides." R. at 3047; see R. at 3970-72. He argued that

VA in the M21-1MR recognized that herbicides were used extensively in Thailand during the

Vietnam War, R. at 3047 (citing M21-1MR, pt. IV. ii. 2, ch. l0.q), a provision, he noted, this Court

has previously held was substantive law, id. (citing Parseeya-Picchione, 28 Vet.App. at 176-77).

And he argued that the M21-1MR provision clearly provided that those who served as security

personnel at RTAFBs were exposed to herbicides. Id. He concluded that this evidence

affirmatively demonstrated direct herbicide exposure and that service connection was warranted

for the disabilities as presumptively related to that herbicide exposure. R. at 3048.

Citing pre-PACT Act authority to the Board, the veteran raised arguments concerning his

exposure to herbicides and entitlement to service connection under then-existing legal provisions,

specifying errors of fact and law. R. at 3047. Those arguments remain undecided and are not moot.

The Board in its December 2023 decision did not address these arguments, see R. at 5-6, and the

RO in 2023 did not do so either, see R. at 228-37. Thus, the Board's perfunctory conclusions that

the veteran failed to allege specific error of fact or law and that there remained no allegations of

error of fact or law for appellate consideration are reversed as clear error. See 38 U.S.C.

§ 7261(a)(4).

Ultimately, the Court rejects the Secretary's argument that because service connection was

granted under the PACT Act, only a downstream effective date issue remains. Mr. Johnson raised

arguments regarding his entitlement under pre-PACT Act law and has not yet received one review

on appeal, i.e., a Board decision, in response to the evidence and arguments he raised concerning

his service at Nam Phong RTAFB and entitlement to service connection under the body of law

extant at that time. And the aim of the Board adjudication that he is entitled to, since he filed an

appeal to the Board, would be to determine whether he satisfies the three requirements for service

connection under the legal authority applicable during the pendency of his claim and appeal; those

determinations indisputably relate to entitlement to service connection.

Moreover, were we to affirm the Board's dismissal and follow the Secretary's argument to

its logical conclusion, Mr. Johnson (and veterans similarly situated) would be required to initiate

an appeal8 to have VA address the exact service-connection issue—direct service connection based

8

As noted, Mr. Johnson challenged his effective date of benefits, and that issue remains pending.

12

Case: 23-7589 Page: 13 of 15 Filed: 03/26/2025

on herbicide exposure under pre-PACT Act law—that was before the Board in December 2023

when it dismissed the appeal. Thus, accepting the Secretary's characterization of Mr. Johnson's

claim for service connection as a claim for an earlier effective date would result in unnecessary

delay, erect hurdles in veterans' paths, and result in a waste of administrative resources. Accord

Warren, 28 Vet.App. at 221. For the above reasons, the Court rejects the Secretary's argument that

Mr. Johnson's appeal is primarily seeking to establish an earlier effective date of benefits.

E. The Secretary overstates Aviles-Rivera II.

The Secretary, in further support of his argument that the veteran's original service-

connection claims became moot once the RO granted service connection under the PACT Act

while the pre-PACT Act claims were pending, cites Aviles-Rivera II, a nonprecedential dismissal

by the Federal Circuit. The Secretary's reliance is misplaced, principally because there is simply

nothing in the dismissal order to rely on, and certainly no analysis of the effect of the different

claim streams, Spencer, liberalizing laws, and the power of an RO decision from a different claim

stream to moot out a Board appeal filed prior to the liberalizing law.

In Aviles-Rivera II, the veteran appealed our decision affirming the Board's denial of

service connection for hypertension. See Aviles-Rivera I, 35 Vet.App. at 281. After the veteran

filed supplemental claims with the RO, which granted service connection, the Federal Circuit

sought additional briefing addressing several issues including mootness. In a four-sentence

nonprecedential order, the Federal Circuit stated: "Having considered the parties' supplemental

briefing and the intervening proceedings concerning Mr. Aviles-Rivera's supplemental claims

before the VA, we determine that this appeal is moot." Aviles-Rivera II, 2024 WL 2952689, at *1.

The Federal Circuit has cautioned against "plac[ing] considerable weight upon[]" its

nonprecedential orders:

We remind counsel and the [veterans] court that nonprecedential opinions . . . do

not represent the considered view of law applicable in other cases. Nonprecedential

orders and opinions are used in summary dispositions of cases in which a full

precedential opinion is not considered necessary. . . .

They are nonprecedential for a reason—while the decision itself receives

due care, as do all cases before us, the explanation given in summary disposition

does not necessarily contain a full recitation of all the relevant facts and legal

authority. The opinion or order is primarily for the benefit of the parties. It is error

to assume that a nonprecedential order or opinion provides support for a particular

position or reflects a new or changed view held by this court.

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Case: 23-7589 Page: 14 of 15 Filed: 03/26/2025

Hamilton v. Brown, 39 F.3d 1574, 1581 (Fed. Cir. 1994). Although the Federal Circuit's

admonition came before it allowed litigants to cite to nonprecedential authority, see FED. R. APP.

PROC. 32.1 (effective Dec. 1, 2006), it maintains that nonprecedential or unpublished dispositions

may only be considered for guidance or persuasive reasoning. FED. CIR. R. 32.1(d) (effective

Dec. 1, 2006). 9 Compare George v. McDonough, 991 F.3d 1227, 1234-36 (Fed. Cir. 2021)

(concluding that it was not bound by its own nonprecedential decision (citing FED. CIR. R.

32.1(d)),10 with Jones v. Merit Systems Protection Board, 98 F.4th 1376, 1381-82 (Fed. Cir. 2024)

(concluding that an administrative law judge's reliance on a nonprecedential Federal Circuit case

was not error because the reliance was only for informative, exemplary legal support rather than

binding, controlling authority).

This Court, similarly, considers nonprecedential cases only to the extent that they contain

persuasive reasoning. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (recognizing that a

nonprecedential authority may be "relied upon . . . for any persuasiveness or reasoning it

contains"); see also, e.g., Jackson v. McDonough, 37 Vet.App. 277, 285 (2024); Kernz v.

McDonough, 36 Vet.App. 372, 387 (2023) (en banc); Harper, 30 Vet.App. at 360 (all relying on

nonprecedential cases as persuasive authority).

However, although the Federal Circuit found Mr. Aviles-Rivera's appeal moot, it provided

no analysis and no reasoning supporting its dismissal. See Aviles-Rivera II, 2024 WL 2952689,

at *1. The Secretary recognizes as much, as he cites not to the Federal Circuit Aviles-Rivera

decision analysis but to the Government's supplemental briefing to support his mootness argument.

See Secretary's Br. at 7. The Federal Circuit provided no explanation why it considered the appeal

moot. To that end, the dismissal does not even mention that the RO had granted Mr. Aviles-

Rivera's supplemental claims. Without any analysis to draw from, the Secretary relies on his own

inference about the Federal Circuit's reason for finding Mr. Aviles-Rivera's appeal moot.

Therefore, we disagree with the Secretary that Aviles-Rivera II is "instructive and persuasive" and

should govern Mr. Johnson's case. See Secretary's Br. at 7.

9

See also Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1341, 1345 n.7 (11th Cir. 2007) ("Unpublished

opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants.").

10

In Perciavalle v. McDonough, we recognized that "George illustrated that we should exercise caution in

applying the Federal Circuit's nonprecedential decisions." 35 Vet.App. 11, 36 n.16 (2021) (en banc), aff'd in part,

vacated in part, 74 F.4th 1374 (Fed. Cir. 2023).

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F. Summary

When the RO in 2016 denied Mr. Johnson's claims for service connection, he appealed that

decision to the Board, seeking one review on appeal. As the RO is a lower tribunal, its March 2023

grant of service connection for the claimed disabilities, in a separate and distinct claim stream and

based on the liberalizing PACT Act, did not resolve the pre-PACT Act appeal pending before the

Board. Therefore, we conclude that the Board erred in finding his Board appeal moot, and we

remand for the Board to adjudicate Mr. Johnson's 2016 claims for service connection.

IV. CONCLUSION

After considering the parties' briefs, the record on appeal, and the governing law, the Court

REVERSES the portion of the December 11, 2023, Board decision that concluded that the appeal

is moot, SETS ASIDE the Board's dismissal of claims for service connection for diabetes, bilateral

lower extremity peripheral neuropathy, and hypertension, and REMANDS the matters for

adjudication consistent with this decision.

15