Mai De Hart v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MAI DE HART,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-2238
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-6249, Judge Coral Wong Pi-
etsch, Judge Grant Jaquith, Judge Joseph L. Toth.
______________________
Decided: June 26, 2026
______________________
ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick,
Providence, RI, argued for claimant-appellant. Also repre-
sented by BRITTANI H OWELL , AMY F. O DOM .
MATTHEW J UDE CARHART , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by WILLIAM J AMES G RIMALDI, P ATRICIA M.
MCCARTHY , BRETT SHUMATE; BRIAN D. G RIFFIN, J ONATHAN
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DE HART v. COLLINS 2
K RISCH , Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Before P ROST , BRYSON, and REYNA, Circuit Judges.
BRYSON, Circuit Judge.
This case involves a veteran’s appeal relating to the ef-
fective date of her entitlement to service-related disability
benefits. Specifically, the challenge at issue involves the
requirements to place a disability determination by a re-
gional office of the Department of Veterans Affairs (“DVA”)
into appellate status.
I
Mai De Hart is a veteran who served in the U.S. Air
Force from 1980 to 2008. Appellee Br. 2; J.A. 3. Shortly
before her retirement, Ms. De Hart applied for DVA disa-
bility benefits for multiple conditions including spondylo-
sis, a degenerative spine condition. Id. She underwent a
DVA examination. Among other observations, the exam-
iner’s report included a reference to her spinal condition,
which stated: “Spondylolisthesis with low back and radi-
ating pain to the right leg. Evidence of a S1 radiculopa-
thy.”1 J.A. 3–4, 49. A DVA regional office issued Ms. De
Hart a rating decision granting service connection for her
spine condition under diagnostic code 5239 (spondylolisthe-
sis or segmental instability) with an effective date of Feb-
ruary 1, 2008, and a 0% rating. J.A. 4, 51, 55–56. The
1 Spondylolisthesis is a condition in which the verte-
brae are misaligned. J.A. 18. Radiculopathy refers to “a
range of symptoms produced by the pinching of a nerve root
in the spinal column.” Id. Radiculopathy can be caused by
a number of conditions, including spondylolisthesis; it is
commonly caused by disk herniation, disk compression, tu-
mors, or bony spurs in the spine. Id.
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DE HART v. COLLINS 3
rating decision reported that Ms. De Hart had undergone
spinal fusion, and that the medical examiner had diag-
nosed lumbar spondylolisthesis, but that the “VA exam
showed normal musculature. There was no spasm, abnor-
mal movement, tenderness or guarding. There was no pain
on motion, pain on repeated motion or pain against mild
resistance. The examiner stated it would be speculative to
comment further on range of motion, fatigability, incoordi-
nation, or flare-ups.” J.A. 55–56. Because the VA exami-
nation “showed no spasm or tenderness, a noncompensable
evaluation is assigned.” J.A. 56.
In February 2009, Ms. De Hart submitted a notice of
disagreement contesting some, but not all, of the determi-
nations made by the regional office in its 2008 rating deci-
sion. J.A. 4. As it related to the regional office’s
spondylolisthesis determination, Ms. De Hart’s notice of
disagreement simply stated: “Lumbar spondylolisthesis
Grade II[.] I am having severe problems with this condi-
tion and it should be evaluated higher.” J.A. 62. Her notice
of disagreement made no mention of radiculopathy.
In March 2011, the regional office issued a statement
of the case, in which it maintained the prior determination
and 0% rating. Ms. De Hart appealed that decision to the
Board of Veterans’ Appeals (“the Board”). J.A. 4. The
Board ultimately remanded the case to the regional office
for further adjudication of several issues, including her
spondylolisthesis claim. 2 J.A. 103.
After her case was returned to the regional office, Ms.
De Hart underwent another medical examination in March
2019. During that examination, the examiner noted that
Ms. De Hart had “moderate right and left lower extremity
2 As part of those proceedings, the Board increased
Ms. De Hart’s rating for spondylolisthesis to 10% from
April 26, 2016 onward. J.A. 84.
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DE HART v. COLLINS 4
radiculopathy,” and that her condition was “a progression
of [her] service connected back condition.” J.A. 4 (quoting
J.A. 119). In September 2019, the regional office issued a
new rating decision that, among other things, increased
Ms. De Hart’s spondylolisthesis rating to 20%, found that
Ms. De Hart’s radiculopathy was “related to” her “service-
connected disability of lumbar spondylolisthesis,” and
granted a 20% rating for radiculopathy for each leg. Those
determinations were assigned an effective date of March
2019 (the date of Ms. De Hart’s most recent medical exam-
ination). J.A. 4 (quoting J.A. 120–23). Ms. De Hart did not
file a notice of disagreement with regard to that decision,
but under procedures then in effect the regional office’s de-
termination relating to spondylolisthesis was returned to
the Board for review. See J.A. 5 n.2.
In June 2021 the Board issued a decision upholding
Ms. De Hart’s spondylolisthesis ratings of 0% from 2008
through 2016, 10% from 2016 to 2019, and 20% from 2019
onward. J.A. 5. While the Board noted that the regional
office had assigned separate ratings for right and left lower
extremity radiculopathies in its September 2019 rating de-
cision, the Board did not otherwise discuss Ms. De Hart’s
radiculopathies. Id.
Ms. De Hart appealed the Board’s decision to the Court
of Appeals for Veterans Claims (“the Veterans Court”). In
that appeal, Ms. De Hart argued that her right leg radicu-
lopathy should have been considered part of her 2009 ap-
peal, that the Board should have granted her an effective
date of 2008 for her right leg radiculopathy condition, and
that it was not necessary for her to file a notice of disagree-
ment with regard to her right leg radiculopathy either in
2009 or 2019. Over a dissent from Judge Jaquith, the Vet-
erans Court rejected those arguments and held that the
Board did not err by failing to address the radiculopathy
issue in its 2021 decision. J.A. 2–27.
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DE HART v. COLLINS 5
II
Our jurisdiction to review decisions of the Veterans
Court is limited. We review a decision of the Veterans
Court “with respect to the validity of a decision . . . on a
rule of law or of any statute or regulation . . . or any inter-
pretation thereof . . . that was relied on by the [Veterans]
Court in making the decision.” 38 U.S.C. § 7292(a). Our
review of those questions is de novo. See, e.g., Cushman v.
Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009).
However, we “may not review (A) a challenge to a fac-
tual determination, or (B) a challenge to a law or regulation
as applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2). We therefore have jurisdiction to hear an ap-
peal from the Veterans Court “only to the extent that it
raises issues of law. To the extent that [the] appeal raises
issues of fact or issues of law applied to fact, we do not have
jurisdiction to consider [the] claims.” Ellington v. Peake,
541 F.3d 1364, 1368 (Fed. Cir. 2008).
III
A
Ms. De Hart argues that because her 2008 medical ex-
amination reported evidence of radiculopathy in her right
leg, the regional office’s action in assigning her a noncom-
pensable rating for spondylolisthesis “implicitly found that
Ms. De Hart was unentitled to compensation for radicu-
lopathy.” Appellant Br. 18.3 For that reason, she contends,
3 Ms. De Hart’s argument that the regional office im-
pliedly adjudicated the radiculopathy issue in 2009 is
based on 38 C.F.R § 3.155(d)(2), which requires the DVA to
address “all outstanding issues enumerated in the com-
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DE HART v. COLLINS 6
her 2009 notice of disagreement regarding spondylolisthe-
sis should be deemed to encompass a claim to right leg
radiculopathy—which she characterizes as a symptom of
spondylolisthesis—even though her notice of disagreement
made no reference to that claim.4 Because she regards the
2009 notice of disagreement as having raised the right leg
radiculopathy issue, she contends that it was unnecessary
for her to file another notice of disagreement in 2019 when
the regional office granted service connection for radicu-
lopathy in both legs, but assigned an effective date of
March 2019 for those conditions.
The Veterans Court properly rejected that argument.
Even if Ms. De Hart had explicitly raised a claim to right
leg radiculopathy in 2008 and the regional office had ex-
pressly decided that claim, Ms. De Hart would have had
the obligation to raise that issue in her notice of disagree-
ment if she wished to challenge the regional office’s deci-
sion. A notice of disagreement must “identify the specific
determination with which the claimant disagrees” to effec-
tively initiate appellate review. Ledford v. West, 136 F.3d
776, 779–80 Fed. Cir. 1998)). Ms. De Hart’s notice of disa-
greement as to the rating level for her spondylolisthesis
claim in 2009 did not serve to place the later-arising issue
plete claim,” including “any other issues that are reasona-
bly within the scope of the issues enumerated in the com-
plete claim.” Appellant Br. 18.
4 While the regional office granted Ms. De Hart ser-
vice connection for radiculopathy in both of her legs in
2019, with the same effective date for both, she challenges
that determination only with respect to her right leg
radiculopathy. Her 2008 medical examination reported ev-
idence of radiculopathy only in her right leg, J.A. 49; it ap-
pears that radiculopathy in her left leg was identified for
the first time in her 2019 medical examination, J.A. 122.
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DE HART v. COLLINS 7
of the effective date of her radiculopathy claim into appel-
late status at that time or excuse her failure to file a notice
of disagreement concerning the later-decided downstream
elements of her claim. See Grantham v. Brown, 114 F.3d
1156, 1158–59 (Fed. Cir. 1997)).
Ms. De Hart argues that radiculopathy is a symptom of
spondylolisthesis, not a separate condition or disability.
For that reason, she argues that her 2009 notice of disa-
greement addressing spondylolisthesis was sufficient to set
forth a claim to right leg radiculopathy. In support of that
argument, Ms. De Hart relies principally on two DVA reg-
ulations, 38 C.F.R. § 4.71a and 38 C.F.R. § 4.25. But those
regulations do not advance her cause. The first regulation
specifies that for “diseases and injuries of the spine,” any
“associated objective neurologic abnormalities” should be
evaluated “separately under an appropriate diagnostic
code.” Note (1) to 38 C.F.R. § 4.71a of the General Rating
Formula. Likewise, 38 C.F.R. § 4.25(b) requires that “dis-
abilities arising from a single disease entity . . . are to be
rated separately as are all other disabling conditions.”
Those regulations indicate that if radiculopathy is consid-
ered to be a separate disability from spondylolisthesis, ra-
ther than simply a symptom of that spondylolisthesis, it
must be rated separately from that condition.
During oral argument, counsel for Ms. De Hart con-
ceded that if the Veterans Court was correct in character-
izing Ms. De Hart’s radiculopathy as a separate condition,
and not a symptom of spondylolisthesis, her 2009 notice of
disagreement would not have been sufficient to place her
radiculopathy into appealable status. Oral Argument at
11:53–12:24, https://www.cafc.uscourts.gov/oral-argu-
ments/24-2238 04062026.mp3.
Contrary to Ms. De Hart’s contention, the DVA regula-
tions cited above do not establish that radiculopathy must
be treated as a symptom of spondylolisthesis, rather than
as a separate condition. Instead, the regulations establish
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DE HART v. COLLINS 8
that neurological abnormalities associated with diseases or
injuries of the spine should be treated as separately rated
conditions.
Applying those regulations to the facts of this case, the
Veterans Court held that radiculopathy is a separate con-
dition, not a symptom, of spondylolisthesis. See J.A. 3, 12–
14. That determination effectively disposed of Ms. De
Hart’s request for an earlier effective date for her right leg
radiculopathy claim. As the Veterans Court explained:
VA’s duty with respect to spine-related neurologi-
cal problems was satisfied when, as part of its de-
velopment on remand from the Board of the
underlying spine claim, it identified the radicu-
lopathy, determined its etiology to the spine condi-
tion, adjudicated and granted entitlement to
service connection, and assigned compensation rat-
ings based on distinct criteria, as well as effective
dates. At that point, each spine-related radiculopa-
thy rating assumed its own adjudicative identity.
If dissatisfied with the ratings or effective dates as-
signed, the veteran was free to challenge them
through an appeal to the Board . . . . In the absence
of such an appeal here, the Board ensured that the
Agency’s duties to Ms. De Hart had been satisfied
by noting that the 2019 [regional office] decision
awarded radiculopathy compensation and that “the
evidence of record [did] not indicate the presence of
any additional objective neurological abnormalities
for which a separate rating is warranted.”
J.A. 14.
Ms. De Hart asks us to overturn the Veterans Court’s
characterization of radiculopathy as a separate condition
and not a symptom of spondylolisthesis, but that ruling, at
bottom, presents a challenge to a factual determination or,
at minimum, a challenge to a law or regulation as applied
to the facts of a particular case, both of which are outside
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DE HART v. COLLINS 9
our jurisdiction. See 38 U.S.C. § 7292(d)(2). We therefore
reject Ms. De Hart’s contention that the Veterans Court
erred in holding held that her 2009 notice of disagreement
placed her right leg radiculopathy claim into appellate sta-
tus. Her failure to file a notice of disagreement with the
regional office’s 2019 decision therefore foreclosed her right
to challenge the Board’s decision as to her right leg radicu-
lopathy claim.
B
Ms. De Hart separately argues that the Veterans
Court’s decision in this case “overruled” that court’s prior
decisions in Chavis v. McDonough, 34 Vet. App. 1 (2021),
and Bailey v. Wilkie, 33 Vet. App. 188 (2021), and asks this
court to intervene to correct the error. Appellant Br. 24–
29. According to Ms. De Hart, Chavis held that “the Board
had jurisdiction over compensation for the radiculopathy
notwithstanding the intervening, unappealed [regional of-
fice] decision awarding separate ratings.” Id. at 25. Ms.
De Hart contends that there “is no meaningful difference
between the circumstances of [her] case and Mr. Chavis’s.”
Id. In Bailey, the Veterans Court held that an intervening
decision granting additional compensation for a condition
that had been appealed did not serve to divest the Board of
jurisdiction over the initial appeal. Ms. De Hart argues
that the Veterans Court in her case “effectively overruled
the Bailey panel” by holding that “each spine-related
radiculopathy assumed its own adjudicative identity.” Ap-
pellant Br. 27.
The Veterans Court addressed Ms. De Hart’s conten-
tion that its decision in this case was contrary to the deci-
sions in Chavis and Bailey, and concluded that it was not.
We do not regard the Veterans Court’s decision in this case
as inconsistent with that court’s decisions in either Chavis
or Bailey.
In Chavis, the veteran was diagnosed with a lumbar
spine disability as well as radiculopathy in both legs and
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DE HART v. COLLINS 10
was awarded disability benefits for each of those condi-
tions. Chavis, 34 Vet. App. at 1. The veteran later sought
a rating increase for his spine disability, but he did not ex-
plicitly request a higher rating for his radiculopathy.
Nonetheless, the Veterans Court held that “the issues of
increased evaluations for Mr. Chavis’s bilateral lower ex-
tremity radiculopathy were part of his claim seeking a
higher evaluation for the underlying lumbar spine disabil-
ity.” Chavis, 34 Vet. App. at 15.
As the Veterans Court explained in the present case,
the Chavis court explicitly noted that it was “leav[ing] for
another day the question whether issues of higher evalua-
tions for radiculopathy are always part of claims seeking
higher evaluations for the underlying spine disability.”
J.A. 7 (quoting Chavis, 34 Vet. App. at 15 n.17). In light of
that explicit limitation and the fact that Chavis involved a
claim for a rating increase, as opposed to an initial deter-
mination of eligibility for benefits, the court considered
that Chavis does not conflict with the decision in this case.
The Veterans Court in Bailey held that the DVA, in de-
ciding to reduce a veteran’s rating for prostate cancer,
failed to factor into its evaluation the record evidence of
complications caused by radiation treatment for the vet-
eran’s disease. The court held that a claim of secondary
service connection for those complications was reasonably
raised by the record, 33 Vet. App. at 197–98, and that the
Board was required to address the secondary service con-
nection issue, id. at 198–203. Ms. De Hart’s case does not
involve a claim of secondary service connection, but pre-
sents only the question whether her 2009 notice of disa-
greement included a claim to right leg radiculopathy and
whether she was required to file a notice of disagreement
with regard to the regional office’s 2019 decision if she
wished to challenge that decision. The Veterans Court’s
decision in Bailey does not speak to those issues, and its
analysis is not in conflict with the court’s analysis in this
case.
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DE HART v. COLLINS 11
IV
In summary, Ms. De Hart’s 2009 notice of disagree-
ment made clear that she disagreed with several decisions
by the regional office, including the 0% rating for spondy-
lolisthesis. J.A. 62. However, Ms. De Hart did not disagree
with any determination, or lack thereof, relating to radicu-
lopathy. Because Ms. De Hart did not at that time indicate
disagreement with any specific determination relating to
that condition, radiculopathy was not properly placed into
appellate status or otherwise addressed by the 2009 notice
of disagreement, which was the only notice of disagreement
filed by Ms. De Hart. The Veterans Court therefore cor-
rectly decided that if Ms. De Hart wished to challenge the
regional office’s 2019 decision with regard to her right leg
radiculopathy claim, she needed to file a timely notice of
disagreement with respect to that decision.
AFFIRMED
COSTS
No costs.
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