William E. Terry v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 20-7251

WILLIAM E. TERRY, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued December 7, 2022 Decided October 19, 2023)

Matthew G. Greig, of Little Rock, Arkansas, for the appellant.

Ronen Z. Morris, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief

Counsel; and Christopher W. Wallace, Deputy Chief Counsel, all of Washington, D.C., were on

the brief for the appellee.

Morgan MacIsaac-Bykowski, of Gulfport, Florida, with whom Philip Randolph Seybold,

Justin M. Rusk, and Tyler Guy Welti, all of Washington, D.C., were on the brief for the National

Law School Veterans Clinic Consortium and the National Organization of Veterans' Advocates as

amici curiae.

Linda E. Blauhut, with whom Jennifer Zajac, both of Washington, D.C., was on the brief

for Paralyzed Veterans of America as amicus curiae.

Christopher Glenn Murray, with whom Renee Burbank, Richard Spataro, Barton F.

Stichman, and Stacy A. Tromble, all of Washington, D.C., were on the brief for the National

Veterans Legal Services Program as amicus curiae.

Amy F. Odom, with whom Zachary M. Stolz, both of Providence, Rhode Island, were on

the brief for Marvin Loyd as amicus curiae.

Before PIETSCH, GREENBERG, and ALLEN, Judges.

PIETSCH, Judge: In this timely appeal over which the Court has jurisdiction, see 38 U.S.C.

§§ 7252(a), 7266(a), appellant William E. Terry challenges a June 18, 2020, Board of Veterans'

Appeals (Board) decision (1) ordering that "[t]he claim for service connection for sleep apnea

remains denied" because Mr. Terry did not submit new and relevant evidence,1 and determining

1

Mr. Terry does not challenge the Board's determination that no new and relevant evidence had been

that the only question in the sleep apnea matter before the Board was whether new and relevant

evidence had been presented or secured with respect to Mr. Terry's supplemental claim; and (2)

denying entitlement to service connection for basal cell carcinoma. Record (R.) at 5-11.

This appeal was referred to a panel of the Court because it involves issues of first

impression concerning provisions of the Veterans Appeals Improvement and Modernization Act

of 2017 (AMA),2 specifically 38 U.S.C. §§ 5104C(a) and 5108(a), and their operation with 38

U.S.C. §§ 5110(a)(2), 7104, and 7105.

The threshold question concerning Mr. Terry's sleep apnea claim is whether, under 38

U.S.C. § 5104C(a), Congress allowed a claimant to file more than one administrative review

request3 in response to, and within 1 year of, an agency of original jurisdiction (AOJ) decision on

a claim, provided the review requests are not pending concurrently?4 Mr. Terry and amici curiae

argue yes. The Secretary disagrees and argues that Congress intended for a claimant to file each

administrative review request in response to, and within 1 year of, the most recent AOJ decision

on a claim. Essentially, the Secretary contends that once a claimant makes one administrative

review request on an AOJ decision on a claim, the claimant can't under any circumstances use

another option to file another administrative review request with regard to that AOJ decision, even

if the claimant does so within 1 year of that AOJ decision.

We hold that subsection 5104C(a) plainly provides that a claimant may file more than one

administrative review request within 1 year of an initial AOJ decision on a claim, provided that

such an administrative review request is not pending concurrently with another administrative

review request. Thus, the Board erred when it construed Mr. Terry's April 2020 Notice of

Disagreement (NOD) as an appeal from the September 2019 AOJ decision on his supplemental

claim, rather than an appeal from the timely April 2019 AOJ decision concerning Mr. Terry's

submitted.

2

Pub. L. No. 115-55, 131 Stat. 1105 (2017) (codified in various sections of title 38, U.S. Code).

3

The "actions" that a claimant may take within 1 year of an AOJ decision are specifically defined as three

filing options [under subsections 5104C(a)(1)(A)-(C). For ease of understanding, we collectively refer to those three

filing options as requests for administrative review.

4

There is no dispute that under subsection 5104C(a)(2)(A) a claimant may not file an additional

administrative review request while the first request is still pending an AOJ decision. And to be clear, we express no

opinion on how subsection 5104C(a) operates when a claimant withdraws an administrative review request and files

another administrative review request as contemplated by subsection 5104C(a)(2)(A)(ii) and 38 C.F.R. § 3.2500(e)

(2023).

2

higher-level review request. We reverse that determination, set aside the Board's decision denying

service connection for sleep apnea, and remand this matter for the Board to address the merits of

Mr. Terry's claim for service connection for sleep apnea.5

Additionally, we break no new ground by concluding that the evidence of record

reasonably raised the theory of entitlement to service connection for basal cell carcinoma under 38

C.F.R. § 3.311 (2023) and that the Board erred by not addressing this theory. We therefore vacate

the Board's denial of service connection for basal cell carcinoma and remand this matter for the

Board to address that theory.

I. BACKGROUND

A. VA's Appeals System: Legacy and AMA

In the legacy VA appeals system, a claimant files a claim for benefits to the AOJ; the AOJ

adjudicates the claim and issues "notice of the result of initial review or determination"; the

claimant initiates appellate review by filing an NOD within 1 year of the AOJ's "initial review or

determination"; and "[t]he request for appellate review by the Board . . . is completed by filing a

Substantive Appeal." See Jarrell v. Nicholson, 20 Vet.App. 326, 330-31 (2006) (en banc)

(discussing 38 U.S.C. § 7105(a), (b) (2006)). The AOJ's decision "becomes final unless the

claimant appeals the decision." Id. at 331 (citing 38 U.S.C. § 7105(c) (2006)). "[W]here the claim

was placed into appellate status by virtue of an NOD, subsequent RO decisions cannot resolve the

pending claim." Jones v. Shinseki, 23 Vet.App. 122, 125 (2009), aff’d on other grounds, 619 F.3d

1368 (Fed. Cir. 2010). "Only a subsequent Board decision can resolve an appeal that was initiated

but not completed." Juarez v. Peake, 21, Vet.App. 537, 543 (2008). And a claimant could file an

application to reopen a finally denied claim under 38 U.S.C. § 5108 (1991) to have that claim

readjudicated. Bernard v. Brown, 4 Vet.App. 384, 391-92 (1993).

"Congress enacted the AMA in 2017 to reform the existing VA administrative appeals

system," and the AMA's "amendments reflect Congress's goal of streamlining the administrative

appeals system while still protecting claimants' due process rights." Mil.-Veterans Advoc. v. Sec'y

of Veterans Affs., 7 F.4th 1110, 1118-19 (Fed. Cir. 2021). "The AMA applies to all claims for

5

Given our resolution of the threshold question concerning the plain meaning of section 5104C(a), we need

not address the broader argument advanced by Mr. Terry and certain amici that, so long as a claim has been

continuously pursued, the Board has the power to consider the merits of any decision rendered as part of that continual

pursuit. We leave that issue for another day.

3

which notice of a decision is provided by the Secretary on or after February 19, 2019." Aviles-

Rivera v. McDonough, 35 Vet.App. 268, 273 (2022). Further, a claimant may elect to have their

legacy claim processed in the AMA system pursuant to VA's Rapid Appeals Modernization

Program (RAMP), or after receiving a Statement of the Case (SOC) or Supplemental Statement of

the Case (SSOC). See 38 C.F.R. § 3.2400(a)(2), (c)(1) (2023); see also Pub. L. No. 115-55,

§ 2(x)(3), (5), 131 Stat. 1105, 1115 (2017) (concerning when a claimant may elect to have a legacy

claim processed under the AMA system); Pub. L. No. 115-55, § 4(a), 131 Stat. 1105, 1119

(authorizing the Secretary to carry out programs to test facets of the AMA system).

In the AMA system, "claimants may now choose from three procedural lanes to obtain

review of their claim within one year of the initial decision (in contrast to the legacy system's

single pathway for appeal to the Board)." Mil.-Veterans Advoc., 7 F.4th at 1119 (citing 38 U.S.C.

§ 5104C(a)(1)). Those lanes are the following: (1) filing a supplemental claim with new and

relevant evidence to seek readjudication of the claim based on all of the evidence of record; (2)

filing a request for higher-level review of the AOJ decision; and (3) filing an NOD to directly

appeal to the Board. See 38 U.S.C. §§ 5104C(a)(1)(A)-(C), 5104B, 5108, 7105; Mil.-Veterans

Advoc., 7 F.4th at 1117, 1119. "[C]laimants may use only one lane at a time." Id. at 1119 (citing

38 U.S.C. § 5104C(a)(2)(A)). But "nothing can prohibit [a] claimant from pursuing each

administrative review option in succession." Id. at 1134 (citing 38 U.S.C. § 5104C(a)(2)(B)).

A claimant who files an NOD to the Board may choose from three Board dockets: "direct

review," "additional evidence," or "hearing." 38 U.S.C. § 7105(b)(3); Aviles-Rivera, 35 Vet.App.

at 273. Section 7113, title 38, U.S. Code, imposes various limitations on the evidence that the

Board may consider based on the chosen Board docket.

And a claimant may file a supplemental claim under 38 U.S.C. § 5108 to initiate

readjudication of a claim that was previously denied by the Board, the Court, or the AOJ more

than 1 year before. See 38 U.S.C. §§ 5104C(b), 5110(a)(2)(E), 7104(b).

B. The Procedural Background of Mr. Terry's Case

Mr. Terry served on active duty in the U.S. Air Force from July 1960 to March 1965 and

from July 1966 to July 1982. See R. at 6, 1096, 1304. His service records include a DD Form 1141

(Record of Exposure to Ionizing Radiation), reflecting that on August 3, 1962, Mr. Terry was

exposed to gamma radiation at Ramey Air Force Base. R. at 1811.

4

In August 2016, Mr. Terry filed a claim for service connection for sleep apnea and basal

cell carcinoma. R. at 1407-10. In a June 2017 rating decision, the AOJ denied service connection

for sleep apnea and basal cell carcinoma. R. at 954-59. In June 2018, Mr. Terry filed a timely NOD

with the June 2017 rating decision. R. at 666-67.

In February 2019, Mr. Terry submitted through counsel a form in which he opted in to

RAMP, requesting higher-level review of all eligible issues then on appeal under the AMA system.

R. at 459.

In an April 16, 2019, rating decision, a higher-level adjudicator within the AOJ denied

service connection for sleep apnea and basal cell carcinoma. R. at 410-12.

In June 2019, Mr. Terry filed through counsel a VA Form 20-0995 (Decision Review

Request: Supplemental Claim), seeking VA review of the issue of "Obstructive Sleep Apnea," and

identifying the June 2017 rating decision. R. at 397-99. And he attached documents to his

supplemental claim form. R. at 333-96.

In a September 2019 supplemental claim decision, the AOJ notified Mr. Terry that the

claim for service connection for sleep apnea "remains denied" because no new and relevant

evidence had been submitted. R. 102-16. The AOJ construed Mr. Terry's June 2019 filing as a

"request to reopen a previous claim"; determined that evidence he had submitted did not constitute

relevant evidence; and explained that it "ha[s] continued [its] previous denial because [Mr. Terry]

failed to submit evidence of in-service treatment or evidence [sleep apnea] was caused by a service

connected condition." R. at 112-16.

On April 14, 2020, Mr. Terry filed a VA Form 10182 (Decision Review Request: Board

Appeal (Notice of Disagreement)), seeking direct review by the Board, listing "Basal Cell

Carcinoma" and "Sleep Apnea" as the issues that he would like to appeal to the Board, and

identifying the April 2019 higher-level review (HLR) decision he sought to appeal. R. at 18.

In the June 2020 decision on appeal, the Board ordered that "[t]he claim for service

connection for sleep apnea remains denied because the evidence submitted is not new and

relevant." R. at 5. The Board found that the April 2019 HLR decision denying service connection

for sleep apnea became final because Mr. Terry did not appeal that decision. R. at 5, 7 (citing 38

C.F.R. § 20.200 (2023). The Board stated:

In [an] April 2020 VA Form 10182, the Veteran requested direct review by

the Board of the April 2019 rating decision issued under the [AMA]. . . .

5

The Board notes that an April 2019 rating decision denied service

connection for sleep apnea and that the Veteran filed a Decision Review Request:

Supplemental Claim (VA Form 20-0995) in June 2019. A September 2019 rating

decision found that there was no new and relevant evidence to readjudicate the

claim for sleep apnea. The Veteran subsequently filed a Decision Review Request:

Board Appeal (VA Form 10182) in April 2020 seeking Board consideration of the

April 2019 rating decision. The Board notes that the April 2019 rating decision

identified in the April 2020 VA Form 10182 is not the most recent rating decision

on appeal; however, it is liberally construing this [VA Form] 10182 to reflect

disagreement with the September 2019 rating decision. See 38 C.F.R. § 20.202(a).

R. at 6. And the Board determined that "[t]he question in this case are [sic] whether the Veteran

submitted evidence after the prior final denial of his claim for service connection (after April

2019), and if so, whether that evidence is new and relevant to his claim." R. at 7.

The Board also denied service connection for basal cell carcinoma, finding that though

there was evidence of Mr. Terry's "length[y] history of basal cell carcinoma," there was

"insufficient evidence to indicate that the Veteran has basal cell carcinoma that is related to an

event, injury, or disease that occurred in service." R. at 9.

II. SLEEP APNEA

We turn now to the threshold question before us: Under 38 U.S.C. § 5104C(a), did

Congress allow a claimant to file more than one administrative review request in response to, and

within 1 year of, an AOJ decision on a claim, provided the claimant is not pursuing these requests

concurrently?

A. Arguments

Mr. Terry and amici curiae argue that subsection 5104C(a) plainly and unambiguously

permits the claimant to file more than one administrative review request in response to, and within

1 year of, an AOJ decision. Appellant's Brief (App. Br.) at 7-8, 14-15; Appellant's Reply Brief

(App. Rep. Br.) at 2-3; Brief for the National Law School Veterans Clinic Consortium and the

National Organization of Veterans' Advocates as Amici Curiae (Br. for NLSVCC & NOVA) at 1-

3, 4-9, 22-25; Brief for the National Veterans Legal Services Program as Amicus Curiae (Br. for

NVLSP) at 2-8.6 Mr. Terry asserts that because he filed an NOD in April 2020, within 1 year of

6

After the parties filed their initial briefs, we ordered them to file supplemental briefs. Thereafter, we invited

amici curiae to file briefs.

6

the April 2019 HLR decision and his NOD identified that decision, the Board erred when it found

that the April 2019 HLR decision became final because it was not appealed. Br. at 12-14. Mr.

Terry and amici curiae argue that the Board should have addressed the merits of his claim for

service connection for sleep apnea and should not have construed his April 2020 NOD as an appeal

from the most recent AOJ decision issued with respect to his claim: the September 2019

supplemental claim decision. App. Br. at 7-8, 13-15; App. Rep. Br. at 2-3; Oral Argument (O.A.)

at 10:16-:36;7 Br. for NLSVCC & NOVA at 24-25. Mr. Terry and amici curiae further argue that

the AMA's purposes, as reflected in the legislative history, support their interpretation of

subsection 5104C(a). App. Rep. Br. at 5-6; Br. for NLSVCC & NOVA at 23. And Mr. Terry argues

that "[r]emand is warranted for the Board to conduct a review of the April 2019 [HLR] decision

based on all evidence of record." App. Br. at 8, 15; O.A. at 14:31-:57.

One amicus further argues that if the language of subsection 5104C(a) contains

"interpretative doubt," or if subsection 5104C(a) is silent on whether a claimant may file more than

one administrative review request in response to one AOJ decision, the Court should apply the

pro-veteran canon and construe this statute as permitting the same. Br. for NVLSP at 5-7. Amicus

also generally argues that if subsection 5104C(a) is ambiguous, the Court should not afford

deference to VA's interpretation of the statute because it is unreasonable and because the Secretary

presents a litigation position rather than an official position. Id. at 8.

The Secretary argues that subsection 5104C(a), when read with subsection 5110(a)(2),

plainly and unambiguously provides that a claimant may file only one administrative review

request in response to a decision, and that any subsequent administrative review request must be

taken successively in response to the most recent decision issued with respect to a claim.

Secretary's Brief (Sec. Br.) at 5-14; Secretary's Supplemental Brief (Sec. Supp. Br.) at 10-20; O.A.

at 31:55-32:23, 36:02-42:30. He argues that the AMA system "contemplates a sequential

progression of claims adjudication . . . [and] that, in the context of a continuously pursued claim,

each decision issued in response to an administrative review selection will replace the earlier one

as the decision subject to further appeal and administrative review." Sec. Supp. Br. at 14. The

Secretary further asserts that the AMA's purposes, as reflected in the legislative history, support

his interpretation of subsection 5104C(a). Sec. Br. at 8-10; Sec. Supp. Br. at 14-17; O.A. at 43:55-

7

Terry v. McDonough, U.S. Vet. App. No. 20-7251 (oral argument held Dec. 7, 2022),

https://www.youtube.com/watch?v=YHGsm-hicoQ.

7

44:45, 55:04-:51. And he argues that it was proper for the Board to liberally and favorably construe

Mr. Terry's April 2020 NOD as an appeal from the September 2019 supplemental claim decision,

because the September 2019 supplemental claim decision was the most recent AOJ decision issued

with respect to the claim for service connection for sleep apnea. Sec. Br. at 5-6, 13-16.

The Secretary alternatively argues that if subsection 5104C(a) is ambiguous, 38 C.F.R.

§ 3.2500(c) resolves that ambiguity, and the Court should afford deference to VA's reasonable

interpretation of the statutory language under step two of the analysis for determining whether to

grant deference to an agency's interpretation of a statute that is set forth in Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Sec. Supp. Br. at 20-21; O.A. at

32:24-:33, 42:32-43:51. He asserts that the regulation clearly provides that "in response to a

decision on a claim by the AOJ, a claimant may select a single review option for each VA

decision," and that, to continually pursue a claim, the claimant must "act in response to the most

recent decision issued with respect to their most recent review choice." Sec. Supp. Br. at 20-21.

And the Secretary notes that VA explained why it interpreted sections 5104C and 5110 in this way.

Sec. Supp. Br. at 21-22 n.34 (citing VA Claims and Appeals Modernization, Final Rule, 84 Fed.

Reg. 138 (Jan. 18, 2019); VA Claims and Appeals Modernization, Proposed Rule, 83 Fed. Reg.

39,818, 39,819 (Aug. 10, 2018)).

B. Analysis

"[I]nterpretation of a statute or regulation is a question of law," Lane v. Principi, 339 F.3d

1331, 1339 (Fed. Cir. 2003), and "[t]he Court reviews statutory construction questions de novo,"

Martinez v. Wilkie, 31 Vet.App. 170, 175 (2019) (citing 38 U.S.C. § 7261(a)(1)). The Court's

statutory interpretation analysis begins with the text of the statute to determine whether the

language is plain and unambiguous. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). In doing

so, we look to "the language itself, the specific context in which that language is used, and the

broader context of the statute as a whole." Id. at 341. "Context always matters." Van Dermark v.

McDonough, 57 F.4th 1374, 1381 (Fed. Cir. 2023). And if the statutory language is unambiguous

and "the statutory scheme is coherent and consistent," then our statutory inquiry ends, Robinson,

519 U.S. at 340, and "the court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress," Chevron, 467 U.S. at 842-43.

8

Section 5104C which concerns "[o]ptions following decision by [AOJ]," 8 states:

(a) Within one year of decision.

(1) Subject to paragraph (2), in any case in which the Secretary renders a

decision on a claim, the claimant may take any of the following actions on or

before the date that is one year after the date on which the agency of original

jurisdiction issues a decision with respect to that claim:

(A) File a request for higher-level review under section 5104B of this title

[38 USCS § 5104B].

(B) File a supplemental claim under section 5108 of this title [38 U.S.C.S.

§ 5108].

(C) File a notice of disagreement under section 7105 of this title [38

U.S.C.S. § 7105].

(2)

(A) Once a claimant takes an action set forth in paragraph (1), the claimant

may not take another action set forth in that paragraph with respect to the

same claim or same issue contained within the claim until—

(i) the higher-level review, supplemental claim, or notice of

disagreement is adjudicated; or

(ii) the request for higher-level review, supplemental claim, or notice of

disagreement is withdrawn.

(B) Nothing in this subsection shall prohibit a claimant from taking any of

the actions set forth in paragraph (1) in succession with respect to a claim

or an issue contained within the claim.

(C) Nothing in this subsection shall prohibit a claimant from taking

different actions set forth in paragraph (1) with respect to different claims

or different issues contained within a claim.

....

(b) More than one year after decision. In any case in which the Secretary renders

a decision on a claim and more than one year has passed since the date on which

the agency of original jurisdiction issues a decision with respect to that claim, the

claimant may file a supplemental claim under section 5108 of this title [38 U.S.C.S.

§ 5108].

8

"The term 'agency of original jurisdiction' means the activity which entered the original determination with

regard to a claim for benefits under laws administered by the Secretary." 38 U.S.C. § 101(34). The AOJ may issue an

initial decision on an initial claim, a decision on an HLR request, or a decision on a supplemental claim. See 38 U.S.C.

§ 7105(b)(1)(A) (using "decision of the [AOJ]" to refer to an HLR decision or a supplemental claim decision); see

also 38 U.S.C. § 5104B(a)(1) (stating that an HLR decision is rendered by a higher-level adjudicator "within" the

AOJ).

9

38 U.S.C. § 5104C.9

Beginning with subsection (a)(1), we find it significant that Congress provided that a

claimant is permitted to use "any" of the three listed options following a decision on a claim,

qualified only by the restriction that the option(s) be used within 1 year of the decision on that

claim. Mr. Terry and amici curiae argue that because Congress used "any" in subsection

5104C(a)(1) and did not say that a claimant may take "any one" of the actions set forth in

subsections 5104C(a)(1)(A)-(C), a claimant may take "any or all" of those actions within 1 year of

an AOJ decision. App. Rep. Br. at 3; Br. for NLSVCC & NOVA at 6, 23. Amici curiae also argue

that because no disjunctive "or" joins the list of actions set forth in subsections 5104C(a)(1)(A)-

(C), Congress did not intend for the taking of one action to exclude the taking of other actions. See

Br. for NLSVCC & NOVA at 7.

The Secretary argues that the word "any" must be considered in context rather than in

isolation, and that "any" means that a claimant may take any one of the actions set forth in

subsection 5104C(a)(1). Sec. Br. at 9; O.A. at 36:08-:54. For the reasons that follow, we disagree

with the Secretary.

In the abstract, the phrase "any of the following actions" could conceivably mean any one

of those actions or any one, some, or all of those actions. See any, MERRIAM-WEBSTER

DICTIONARY, https://www.merriam-webster.com/dictionary/any (last accessed Sept. 28, 2023);

Perrin v. United States, 444 U.S. 37, 42 (1979) ("A fundamental canon of statutory construction

is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary,

common meaning."). But this recognition does not mean that the statute is ambiguous. As we noted

earlier, "[c]ontext always matters" when interpreting a statute. Van Dermark, 57 F.4th at 1381.

Thus, we must consider the term "any" in context. See Small v. United States, 544 U.S. 385, 388

(2005) ("'[A]ny' means 'different things depending upon the setting.'" (quoting Nixon v. Mo. Mun.

League, 541 U.S. 125, 132 (2004))); see also Yates v. United States, 574 U.S. 528, 575 (2015)

(explaining that the court relies on the doctrine of noscitur a sociis "to avoid ascribing to one word

a meaning so broad that it is inconsistent with its accompanying words, thus giving 'unintended

breadth to the Acts of Congress'" (quoting Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307

9

Subsection 5104C(b) is not at issue in the case. To be clear, we express no opinion on the adjudicative

process when a claimant files and pursues a supplemental claim pursuant to 38 U.S.C. § 5104C(b).

10

(1961))). "[T]he word 'any' naturally carries 'an expansive meaning,'" SAS Inst., Inc. v. Iancu, 138

S. Ct. 1348, 1354 (2018) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)). In that context,

"'any' typically 'refer[s] to a member of a particular group or class without distinction or limitation'

and "impl[ies] every member of the class or group.'" Id. (alterations in original).

In view of the generally expansive meaning of the word "any," as well as its use in the

context of subsection 5104C(a), we read "any of the following actions" as plainly meaning "any

or all" of the actions set forth in subsection 5104C(a), rather than "any one of" those actions, as

the Secretary argues.10 As amici curiae point out, no disjunctive "or" joins the list of actions set

forth in subsections 5104C(a)(1)(A)-(C). See Br. for NLSVCC & NOVA at 7. The use of such a

disjunctive "signals that the criteria stand as independent avenues that a veteran may use to

establish entitlement." Wilson v. McDonough, 35 Vet.App. 75, 78 (2021) (emphasis added) (citing

Loughrin v. United States, 573 U.S. 351, 377-78 (2014)). That Congress elected not to use the

disjunctive "or" indicates Congress intended that the list of actions set forth in subsections

5104C(a)(1)(A)-(C) be viewed not as a list of "independent avenues" for a claimant to pursue, see

Wilson, 35 Vet.App. at 78, but rather as a list of options that a claimant may elect to pursue.

Notably, the only limit Congress provided in subsection 5104C(a)(1) was temporal—a claimant

could avail himself or herself of the options in subsections 5104C(a)(1)(A)-(C) only in the 1-year

period following a decision on a claim. Reading subsection 5104C(a)(1) in the manner espoused

by the Secretary—specifically, that the word "any" means "any one"—adds restrictions to what

Congress saw fit to provide.

Our reading of subsection 5104C(a)(1) is further supported by subsection 5104C(a)(2). In

subsection 5104C(a)(2), Congress accomplished two complementary things. First, in subsection

(a)(2)(A), it provided that a claimant could not use more than one of the options set out in

subsection (a)(1) at the same time as any other option from (a)(1) until VA had adjudicated that

option or the claimant withdrew the request. In other words, subsection (a)(2)(A) prohibits

10

We recognize that the Federal Circuit's decision in Military-Veterans Advocacy v. Secretary of Veterans

Affairs noted that "[w]ithin one year of an AOJ decision, a claimant may . . . pursue 'any' one of three lanes of

administrative review by filing: a request for higher-level review, a supplemental claim, or a NOD for Board review."

7 F.4th at 1134 (emphasis added) (citing 38 U.S.C. § 5104C(a)(1)). Because Military-Veterans Advocacy is not

concerned with the question before us, however, the passing reference to "'any' one of three lanes for administrative

review" is dicta that is not binding on this Court. See Co-Steel Raritan, Inc. v. ITC, 357 F.3d 1294, 1307 (Fed. Cir.

2004) ("The word 'dicta' is an abbreviation for obiter dicta, which describes statements made by a court that are

'unnecessary to the decision in the case, and therefore not precedential (though [they] may be considered persuasive.'"

(underline in original) (quoting BLACK'S LAW DICTIONARY 1100 (7th ed. 1999))).

11

concurrent use of the options that subsection (a)(1) provides. If only one of the options in

subsection (a)(1) could be used in response to a "decision on a claim" as the Secretary argues, there

would be no need to explicitly provide that a claimant could not use the subsection (a)(1) options

concurrently. However, it is a well-established canon of statutory interpretation that we give effect

to all terms and avoid rendering any "'inoperative or superfluous, void or insignificant.'" Roper v.

Nicholson, 20 Vet.App. 173, 178 (2006) (quoting 2A NORMAN J. SINGER, SUTHERLAND STATUTES

AND STATUTORY CONSTRUCTION § 46:06 (6th ed. 2000)), aff'd, 240 F. App'x 422 (Fed. Cir. 2007);

see Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013) (stating that the "canon against

surplusage is strongest when an interpretation would render superfluous another part of the same

statutory scheme"). Our interpretation is faithful to that canon.

Second, in subsection (a)(2)(B), Congress provided that "[n]othing in this subsection shall

prohibit a claimant from taking any of the actions set forth in paragraph (a) in succession with

respect to a claim." 38 U.S.C. § 5104C (a)(2)(B) (emphasis added). If the Secretary is correct that

the word "any" in subsection (a)(1) means "one," subsection (a)(2)(B) would be rendered entirely

superfluous, which the Court should not allow. See Marx, 568 U.S. at 386; Roper, 20 Vet.App. at

178. In other words, under the Secretary's reading, the claimant could never take an action "in

succession" to the initial review option the claimant selected. And under the Secretary's

interpretation, when a claimant selects one of the actions set forth in subsections 5104C(a)(1)(A)-

(C) following "a decision on a claim," nothing more than can be done; the appeal book (so to

speak) on that claim is closed. All we are then left with is the decision that VA issues in response

to the option that a claimant selected. To be sure, a claimant could make choices about how to

proceed with respect to that later decision. But the Secretary's interpretation never permits a

situation in which a claimant may take another action on the first decision. In other words, the

Secretary's interpretation never permits an action qualifying as one "in succession" to the first

option a claimant selected with respect to that first decision.11 38 U.S.C. § 5104C(a)(2)(A).12

11

There is one caveat. If a claimant withdraws an initial review option, then the claimant is permitted to

select another review option. However, an entirely different part of the statute, subsection (2)(D), deals with that issue.

See 38 U.S.C. § 5104C(2)(D); see also 38 C.F.R. § 3.2500(e) (2023) (adopting regulations concerning withdrawal of

claims as contemplated under section 5104C(2)(D)).

12

It is true that taking our point to its logical conclusion, Congress could have stopped with subsection (a)(1).

In other words, some sense of redundancy accompanies the inclusion of subsection (a)(2). But "redundancies are

common in statutory drafting," Barton v. Barr, 140 S. Ct. 1442, 1453 (2020), and such redundancies, if any, do not

12

The Secretary's argument that Congress intended to permit a claimant to select "any one"

of the review options set forth in subsections 5104C(a)(1)(A)-(C) for each decision on a claim is

not persuasive. See Sec. Br. at 9 n.2. He points out that the legislative history of this statute includes

a section in which Congress used the disjunctive "or" in discussing subsections 5104C(a)(1)(A)-

(C). Id. (citing H.R. REP. NO. 115-135, at 7 (2017)). But "'[t]he plain words and meaning of a

statute cannot be overcome by a legislative history which, through strained processes of deduction

from events of wholly ambiguous significance, may furnish dubious bases for inference in every

direction.'" Ex Parte Collett, 337 U.S. 55, 61 (1949) (quoting Gemsco v. Walling, 324 U.S. 244,

260 (1945)). Because we read the statute as plain and unambiguous, we need not consult legislative

history to discern the intent of Congress. And even if we were to consider the legislative history

cited by the Secretary, the history is unavailing, because when crafting the language of the statute

Congress made the deliberate choice not to use the disjunctive "or."

The Secretary also notes that the concept of "'one review' of an agency decision was

embedded in the appeals process well before the Appeals Modernization Act," and points out that

under the legacy system, a claimant could not seek multiple reviews of a single agency decision.

Sec. Br. at 10 n.3. This Court is not inclined to interpret the provisions of the AMA as harmonious

with the legacy appeals system simply because a certain practice was "embedded" in that system;

when, as here, statutory language is plain and unambiguous, "our task is to give effect to statutes

as Congress has written them." Frantzis v. McDonough, 35 Vet.App. 354, 363 (2022).

Additionally, the Secretary's relies on the concept of "one review on appeal," which is still in force

under the AMA, see 38 U.S.C. § 7104(a), but the Secretary's reliance is misplaced. The concept

of "one review on appeal" relates to the Board's authority to hear a timely appeal presented to it in

the first instance. Id.; see also George v. McDonough, 142 S. Ct. 1953, 1957 (2022) ("As a general

rule, the veteran may appeal within one year to the VA's Board of Veterans' Appeals . . . . ") Our

holding does not disturb that concept. In fact, our holding has a meaningful effect only in the few

situations where, as here, a claimant receives an adverse determination under the AMA; a claimant

selects an administrative review available to him or her before the AOJ, such as a supplemental

outweigh what we consider to be a coherent construction of the statutory scheme. See Rimini St., Inc. v. Oracle USA,

Inc., 139 S. Ct. 873, 881 (2019) ("Redundancy is not a silver bullet. . . . If one possible interpretation of a statute would

cause some redundancy and another interpretation would avoid redundancy, that difference in the two interpretations

can supply a clue as to the better interpretation of a statute. But only a clue. Sometimes the better overall reading of

the statute contains some redundancy."); Lindh v. Murphy, 521 U.S. 320, 336 (1997) (favoring a statutory analysis

that "accords more coherence" to statutory provisions than any rival analysis).

13

claim or request for HLR; and then, after receiving an adverse determination in response to that

administrative review, within 1 year of the original AOJ decision, the claimant appeals the initial

decision to the Board by filing an NOD.

The Secretary also argues that Mr. Terry's reading of the statute would lead to absurd

results by allowing claimants to pursue "simultaneous actions with respect to the same underlying

request for benefits," and that Mr. Terry's reading contemplates a "scenario where the same request

for benefits could be decided differently in different final decisions." Sec. Br. at 11-12. In other

words, the Secretary appears to be concerned that Mr. Terry could conceivably file administrative

reviews of both the April 2019 HLR decision on the merits and the September 2019 decision that

new and relevant evidence had not been submitted in connection with the supplemental claim. Of

course, the Secretary's argument on this score is a hypothetical; Mr. Terry expressly sought only

to appeal the HLR decision. It was the Board that construed his NOD as a disagreement with the

denial of supplemental claim. Moreover, Congress likely acted to prevent the Secretary's

hypothetical from coming to pass through subsection 5104C(a)(2)(A), which prevents claimants

from taking simultaneous actions "with respect to the same claim or same issue within the claim."

A "claim" is a request for "a determination of entitlement or evidencing a belief in entitlement, to

a specific benefit." 38 C.F.R. § 3.1(p). Though the April 2019 HLR decision denied Mr. Terry's

sleep apnea claim on its merits, and the September 2019 rating decision found that no new and

relevant evidence had been submitted, ultimately these decisions involve the same claim—

entitlement to VA compensation for sleep apnea. Indeed, when considering VA's regulations

implementing the AMA, the Federal Circuit expressly recognized that a supplemental claim is part

of the same "case," at least for purposes of the recovery of attorney fees. See Mil.-Veterans Advoc.,

7 F.4th at 1137-38. Thus, subsection 5104C(a)(2)(A) likely acts as a barrier against simultaneous

review on the same claim and prevents the purportedly absurd result the Secretary describes. But

the reality is that we need not explore fully how a supplemental claim interacts with an HLR

decision because we simply are not at liberty to change the statute Congress wrote.

The Secretary also argues that our holding would create an inequity among veterans who

receive decisions on their requests for administrative review within 1 year of the initial AOJ

decision, and those who do not. Sec. Br. at 12-13. In order to ensure that there are no such

inequities, he asserts, he "would be encouraged to delay rendering decisions in response to actions

14

take under subsection (a) until" the 1-year period following an AOJ decision had expired. Sec. Br.

at 13 n.17.

The Secretary's suggestion that VA would intentionally delay adjudicating thousands of

requests for administrative review under the AMA simply to avoid the uncommon instance in

which an administrative review is adjudicated within a year of an initial AOJ decision is stunning.

We remind the Secretary that the system for adjudicating veterans' claims for disability benefits

statutes is "uniquely pro-claimant." Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).

Moreover, in publishing the regulations implementing the AMA, VA indicated that it "takes

seriously its obligation to administer its [AMA] process in a claimant-friendly way." VA Claims

and Appeals Modernization, 84 Fed. Reg. 138, 139 (Jan. 18, 2019) (final rule). It is difficult to

comprehend that under a uniquely pro-claimant system, or indeed any system of adjudication, an

agency would arbitrarily delay adjudication in order to avoid an outcome that Congress has

expressly provided for by statute.

Ultimately, when we read subsection 5104C(a) as a whole, we see that Congress provided

that a claimant is able to select a second administrative review option with respect to a decision on

the claim, so long as the 1-year period from that decision has not run and the second administrative

review option does not run concurrently with the first administrative review option. 38 U.S.C.

§ 5104C(a)(1), (a)(2)(A)-(B). Each relevant provision of subsection 5104C(a) elucidates how

Congress intended the process to work, and our plain reading analysis renders no provision entirely

superfluous.13

In sum, we hold that subsection 5104C(a) provides that a claimant may file more than one

administrative review request within 1 year of an initial AOJ decision on a claim, so long as those

administrative reviews do not run concurrently. We note the Secretary's argument that his

implementing regulation indeed uses the word "one" where Congress uses "any." See 38 C.F.R.

§ 3.2500(a)(1); Secretary's Br. at 13-14 (referencing the language used in 38 C.F.R. § 3.2500(a)(1),

VA's implementing regulation). As we explained, however, a claimant is not restricted to using a

single option following an initial decision on a claim so long as he or she is acting within 1 year

of that decision. Therefore, we invalidate the parts of § 3.2500(a)(1) that are inconsistent with the

correct interpretation of section 5104C(a)(1). See Spicer v. McDonough, 61 F.4th 1360, 1366 (Fed.

13

Because we hold that Congress's intent can be discerned from a plain reading analysis, we do not reach the

Secretary's alternative arguments about ambiguity in the statutory text. See Sec. Supp. Br. at 20-22.

15

Cir. 2023) (striking down a VA regulation as unlawful when it was inconstant with a statute

Congress had enacted).

C. Application to this Case

In August 2016 Mr. Terry filed his initial claim for service connection for sleep apnea. In

June 2017, the RO issued its initial decision on that claim, in the legacy system. In June 2018, Mr.

Terry filed a timely NOD with that initial decision, pursuant to the legacy appeals system. In

February 2019, Mr. Terry elected to have his appeal processed in the AMA system pursuant to

RAMP, and he elected higher-level review of all issues then on appeal. In April 2019, the AOJ

issued an HLR decision denying service connection for sleep apnea. In June 2019, Mr. Terry filed

a supplemental claim. In September 2019, VA issued a supplemental claim decision. In April 2020,

Mr. Terry filed an NOD, and in this NOD he listed "Sleep Apnea" as an issue that he would like

to appeal to the Board and identified the April 2019 rating decision. R. at 18.

Given our holding, see supra Section II.B, the April 2020 NOD constitutes a timely appeal

from the April 2019 HLR decision, because it identified the April 2019 HLR decision; was filed

within 1 year of that decision; and was not made concurrently with any other administrative review

election, the Board erred when it "liberally construed" the April 2020 NOD as an appeal from the

September 2019 supplemental claim decision. See R. at 6. We therefore reverse the Board's

determination that the matter on appeal before it was whether new and relevant evidence had been

submitted with respect to the June 2019 supplemental claim, and we remand this matter for a merits

adjudication of Mr. Terry's sleep apnea claim based on the April 2019 HLR decision Mr. Terry

appealed. R. at 6-7.14

III. BASAL CELL CARCINOMA

Mr. Terry argues that "the Board failed to consider the veteran's claim [for service

connection for basal cell carcinoma] in the context of 38 C.F.R. § 3.311." App. Br. at 19. He

identifies a Record of Exposure to Ionizing Radiation reflecting that he was exposed to gamma

radiation during service. Id. at 17 (citing R. at 1811). He argues that "the Board failed to recognize

that basal cell carcinoma (the most common form of skin cancer) is a 'radiogenic disease' which

VA recognizes 'may be induced by ionizing radiation'" under § 3.311. Id. at 9. And he argues that

14

We have jurisdiction to review the Board's express jurisdictional determinations. See Young v. Shinseki,

25 Vet.App. 201, 203 (2012); King v. Nicholson, 19 Vet.App. 406, 409 (2006).

16

because the Board found that his basal cell carcinoma manifested many years after service, the

Board should have at least referred the claim to the Under Secretary for Benefits pursuant to

§ 3.311. Id. at 18.

In response, the Secretary does not dispute that basal cell carcinoma is a form of skin

cancer, that skin cancer is a "radiogenic disease" under § 3.311, or that Mr. Terry was exposed to

gamma radiation in service. Sec. Br. at 17-18. But the Secretary argues that the Board did not err

in failing to address the theory of entitlement under § 3.311, because Mr. Terry and his attorney

did not raise to the Agency any theory of entitlement based on radiation exposure. Id. at 18-19.

"When evaluating a claim, the Board is required to address all theories of entitlement to

the claimed VA benefits that are either raised by the claimant or reasonably raised by the record."

Garner v. Tran, 33 Vet.App. 241, 246 (2021) (first citing DeLisio v. Shinseki, 25 Vet.App. 45, 53

(2011); and then citing Robinson v. Peake, 21 Vet.App. 545, 555 (2008), aff'd sub nom. Robinson

v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009)). And the Court has jurisdiction to determine in the

first instance whether the evidence of record reasonably raised a theory. Id. (first discussing

Barringer v. Peake, 22 Vet.App. 242, 244 (2008); then discussing Lynch v. Wilkie, 30 Vet.App.

296, 304-06 (2018); and then discussing Robinson, 21 Vet.App. at 552-57).

Section 3.311, title 38, Code of Federal Regulations, concerns claims based on exposure to

ionizing radiation and states that "the term 'radiogenic disease' means a disease that may be induced

by ionizing radiation and shall include . . . [s]kin cancer." 38 C.F.R. § 3.311(b)(2)(vii). At

subsection (b)(1)this regulation also states:

(1) When it is determined:

(i) A veteran was exposed to ionizing radiation as a result of . . . activities as

claimed;

(ii) The veteran subsequently developed a radiogenic disease; and

(iii) Such disease first became manifest within the period specified in paragraph

(b)(5) of this section; before its adjudication the claim will be referred to the

Under Secretary for Benefits for further consideration in accordance with

paragraph (c) of this section. . . .

17

38 C.F.R. § 3.311(b)(1). And "[f]or the purposes of paragraph (b)(1) . . . [skin cancer] must become

manifest 5 years or more after exposure." 38 C.F.R. § 3.311(b)(5).15

Here, the Board acknowledged evidence that Mr. Terry had been diagnosed with basal cell

carcinoma. R. at 10. And the Board found that Mr. Terry's basal cell carcinoma "did not have an

onset in active service or for many years thereafter." Id. There is no dispute that basal cell

carcinoma is a form of skin cancer,16 skin cancer is a radiogenic disease under § 3.311, and skin

cancer manifesting 5 years or more after exposure is contemplated by § 3.311. Further, Mr. Terry's

service records include a Record of Exposure to Ionizing Radiation showing his exposure to

gamma radiation, and exposure to ionizing radiation is contemplated by § 3.311. The Board did

not mention this evidence.

We find that the evidence of record reasonably raised the theory that service connection

for basal cell carcinoma may be warranted under § 3.311, and we conclude that the Board erred

by not addressing this theory of entitlement, regardless of the fact that Mr. Terry and his attorney

did not raise it to the Agency. See Robinson, 21 Vet.App. at 553 ("[A] theory [of entitlement] can

be both unknown to the appellant and suggested by the record."). Accordingly, we vacate the

Board's denial of service connection for basal cell carcinoma and remand this matter for the Board

to address this reasonably raised theory. See Tucker, 11 Vet.App. at 374.

IV. OTHER CONSIDERATIONS

In keeping with our practice of deciding matters on the "narrowest possible grounds," we

need not address Mr. Terry's and amici curiae's remaining arguments. See Best v. Principi, 15

Vet.App. 18, 20 (2001) (per curiam order). We remind the Board that "[a] remand is meant to

entail a critical examination of the justification for the [Board's] decision." Fletcher v. Derwinski,

1 Vet.App. 394, 397 (1991); see also Andrews v. McDonough, 34 Vet.App. 151, 161 (2021). And

the Board must treat this matter in an expeditious manner on remand from the Court in accordance

with 38 U.S.C. § 7112.

15

Section 3.311(a) defines the circumstance under which VA should assess and develop evidence concerning

the size and nature of the radiation dose or doses.

16

Basal cell carcinoma, DORLAND'S MEDICAL DICTIONARY ONLINE,

https://www.dorlandsonline.com/dorland/definition?id=63098&searchterm=basal+cell+carcinoma (last visited May

11, 2023); see generally Tagupa v. McDonald, 27 Vet.App. 95, 100 (2014) ("[T]he Court may take judicial notice of

facts not subject to reasonable dispute if such facts are generally known or are capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned.").

18

V. CONCLUSION

After consideration of the parties' briefs, amici curiae's briefs, oral argument, the record on

appeal, and the governing law, the Court REVERSES the part of the June 18, 2020, Board decision

determining that the only question before it was whether new and relevant evidence had been

submitted in support of Mr. Terry's sleep apnea claim; SETS ASIDE the part of the Board's

decision ordering a denial of the claim for service connection for sleep apnea and denying service

connection for basal cell carcinoma; and REMANDS the vacated matters for further proceedings

and readjudication consistent with this decision.

19