Vaughn M. Gordon v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
VAUGHN M. GORDON,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2025-1461
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-5047, Judge William S. Green-
berg.
______________________
Decided: August 20, 2026
______________________
J EFF P. J OHNSON, Troutman Pepper Locke LLP, Rich-
mond, VA, argued for claimant-appellant. Also repre-
sented by T IMOTHY L. MCHUGH .
MOLLIE L ENORE G ROPP , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by ERIC P. BRUSKIN, P ATRICIA M. M C CARTHY , BRETT
SHUMATE; J ONATHAN K RISCH , D EREK SCADDEN, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
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GORDON v. COLLINS 2
______________________
Before REYNA, HUGHES , and STOLL , Circuit Judges.
STOLL , Circuit Judge.
This case reemphasizes both our jurisdiction and the
jurisdiction of the United States Court of Appeals for Vet-
erans Claims. Here, Vaughn M. Gordon appeals the deci-
sion of the Veterans Court, which affirmed the Board of
Veterans’ Appeals decision denying Mr. Gordon entitle-
ment to an initial compensable disability rating for bilat-
eral hearing loss. For the following reasons, we hold that
our precedent in Wingard v. McDonald, 779 F.3d 1354
(Fed. Cir. 2015), applies to Mr. Gordon’s appeal, and we ac-
cordingly dismiss for lack of jurisdiction.
BACKGROUND
I
38 U.S.C. §§ 1110, 1114(a)–(j), and 1155 all relate to a
veteran’s entitlement to disability compensation. Sec-
tion 1110 provides:
For disability resulting from personal injury suf-
fered or disease contracted in line of duty, or for ag-
gravation of a preexisting injury suffered or disease
contracted in line of duty, . . . the United States
will pay to any veteran thus disabled . . . , or preex-
isting injury or disease was aggravated, compensa-
tion as provided in this subchapter . . . .
38 U.S.C. § 1110. Section 1155 grants to the Secretary the
authority to “adopt and apply a schedule of ratings of re-
ductions in earning capacity from specific injuries or com-
bination of injuries,” such schedule “be[ing] constructed so
as to provide ten grades of disability and no more, upon
which payments of compensation shall be based, namely,
10 percent, 20 percent, 30 percent, 40 percent, 50 percent,
60 percent, 70 percent, 80 percent, 90 percent, and total,
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GORDON v. COLLINS 3
100 percent.” Id. § 1155. Section 1114(a)–(j) provides mon-
etary amounts for each grade of compensation from 10%
disability to total disability. Id. § 1114(a)–(j).
II
Mr. Gordon served in the United States Army from
February to August 1968 as a medical lab specialist. In
August 2013, Mr. Gordon filed for service-connected bene-
fits for bilateral hearing loss, and after a series of decisions
and remands, in December 2021, the Department of Veter-
ans Affairs (VA) granted Mr. Gordon service connection
and awarded him a non-compensable (i.e., 0%) disability
rating. In May 2023, the Board denied Mr. Gordon an ini-
tial compensable rating. Mr. Gordon appealed to the Vet-
erans Court, arguing the appeal “require[d] a review of the
statutory provisions of [38 U.S.C. §§ 1110, 1114(a)–(j),
and 1155] to determine whether the Board unlawfully de-
nied Mr. Gordon an initial compensable rating for his re-
sulting bilateral hearing loss.” J.A. 89.
Before the Veterans Court, Mr. Gordon argued that by
awarding him a non-compensable rating, the Secretary
was “creat[ing] an eleventh grade of disability” in contra-
vention of the prescribed statutory framework. J.A. 93–94.
The Veterans Court determined that under its jurisdic-
tional statute at 38 U.S.C. § 7252(b), as well as under our
precedent in Wingard, it did not have the authority to “re-
view[] the schedule of ratings for disabilities adopted under
section 1155 . . . or any action of the Secretary in adopting
or revising that schedule.” J.A. 4 (citation omitted). It
highlighted that this jurisdictional bar included reviewing
whether “including a 0% rating[] substantively violates
statutory constraints.” Id. (citation omitted). The Veter-
ans Court was not persuaded it “ha[d] the authority to con-
sider [Mr. Gordon’s] argument,” noting (1) its preclusion
from review of the ratings schedule under § 7252(b) and
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GORDON v. COLLINS 4
(2) Mr. Gordon’s failure to distinguish his argument from a
challenge of the ratings schedule. See J.A. 4–5.1
Mr. Gordon appeals.
D ISCUSSION
This case turns on the jurisdiction given by Congress
to both our court and the Veterans Court under two stat-
utes: 38 U.S.C. § 7252 and 38 U.S.C. § 7292. The Veter-
ans Court “ha[s] exclusive jurisdiction to review decisions
of the Board of Veterans’ Appeals.” 38 U.S.C. § 7252(a).
However, § 7252(b) expressly states that the Veterans
Court “may not review the schedule of ratings for disabili-
ties adopted under section 1155 . . . or any action of the
Secretary in adopting or revising that schedule.” Id.
§ 7252(b). Congress carved out a similar exclusion from
this court’s jurisdiction. Specifically, 38 U.S.C. § 7292(a)
provides that we may review:
[A] decision of the [Veterans] Court on a rule of law
or of any statute or regulation (other than a refusal
to review the schedule of ratings for disabilities
adopted under section 1155 . . . ) or any interpreta-
tion thereof (other than a determination as to a fac-
tual matter) that was relied on by the [Veterans]
Court in making the decision.
Id. § 7292(a) (emphasis added to highlight the subject mat-
ter excluded from our court’s jurisdiction).
We interpreted these two statutes and clarified the ju-
risdiction of both courts with regard to challenges to the
1 While the stated disposition in the Veterans
Court’s decision was an affirmance, by holding that it
lacked jurisdiction to consider Mr. Gordon’s argument, it
effectively dismissed Mr. Gordon’s appeal. Any error in the
disposition designation was harmless.
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GORDON v. COLLINS 5
schedule in Wingard. There, the veteran had been as-
signed a 0% disability rating for a service-connected ingui-
nal hernia. Wingard, 779 F.3d at 1355. Upon the veteran’s
death, his daughter, Ms. Wingard, filed a claim with the
VA for a burial-plot or interment allowance under
38 U.S.C. § 2303 and for burial benefits under 38 U.S.C.
§ 2302(a)(1). Wingard, 779 F.3d at 1355. Ms. Wingard ar-
gued the veteran was entitled to compensation “be-
cause . . . §§ 1110 and 1155 prohibited the [VA] from
assigning [the veteran] a 0% disability rating after finding
that he had a service-connected disability.” Id. at 1356.
We summarized Ms. Wingard’s fundamental position on
appeal:
Ms. Wingard’s core challenge is that regulations
creating a “zero-percent” rating violate § 1155’s
command that the Secretary establish a schedule
“provid[ing] ten grades of disability and no more”
in 10 percent increments from 10 to 100 percent as
well as § 1110’s statement that “the United States
will pay to any veteran thus disabled . . . compen-
sation as provided in this subchapter.”
Id. (alteration and omission in original).
We held that 38 U.S.C. § 7252(b) “squarely precludes
the Veterans Court from determining whether the sched-
ule, by including a 0% rating, substantively violates statu-
tory constraints.” Id. We explained that Ms. Wingard’s
case, as presented, involved “a substantive challenge to the
schedule as conflicting with the statute.” Id. at 1357. And
therefore, “[u]nder § 7252(b), whose language has not
changed since Wanner[ v. Principi, 370 F.3d 1124
(Fed. Cir. 2004)], the Veterans Court could not consider
Ms. Wingard’s statutory challenge.” Wingard, 779 F.3d
at 1357. And when further considering “whether this court
may review the challenge [to the 0% rating] even though
the Veterans Court could not,” id., we determined we too
may not review it. See id. at 1357–59; id. at 1359 (noting
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GORDON v. COLLINS 6
the judicial review provisions “preclude this court from re-
viewing, on appeal from the Veterans Court, a substantive
statutory challenge to [VA] rating-schedule regulations”).
The question raised by Mr. Gordon before the Veterans
Court and before us is identical to the question raised in
Wingard. Mr. Gordon argued before the Veterans Court
that the Board’s denial of an initial compensable rating is
“inconsistent with the unambiguous mandate of § 1110 to
pay compensation for a resulting disability and the explicit
provisions of §§ 1114(a) through (j), which provide for only
ten grades of disability.” J.A. 95; see also J.A. 95–96
(claiming that the Secretary’s regulation providing for 0%
evaluations is “inconsistent with” §§ 1110, 1114(a)–(j),
and 1155). He makes the same argument before us. Ap-
pellant’s Br. 20 (“Mr. Gordon claims that [s]ections 1110
and 1114 require paying a veteran compensation for a ser-
vice-connected disability, and thus it is an error of law for
the Veterans Court to fail to apply the plain language of
these provisions.”); Appellant’s Reply Br. 2 (“Because he
has a disability, the statute entitles Mr. Gordon to a ten-
percent rating and compensation.” (citing 38 U.S.C.
§ 1155)). These arguments are “substantive challenge[s] to
the schedule as conflicting with the statute,” which neither
we nor the Veterans Court can review. Wingard, 779 F.3d
at 1357.
We are bound here by our holding in Wingard. See
Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 765
(Fed. Cir. 1988) (“This court has adopted the rule that prior
decisions of a panel of the court are binding precedent on
subsequent panels unless and until overturned in banc.”).
And Mr. Gordon’s arguments attempting to distinguish
Wingard are unavailing. See Appellant’s Br. 19 (“Wingard
does not apply because Mr. Gordon seeks to review the Sec-
retary’s action assigning him a [0%] disability rating.”); Ap-
pellant’s Br. 24 (“The [c]ourt’s decision [in Wingard] did not
discuss whether [§] 1114(a) requires compensation . . . .”).
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GORDON v. COLLINS 7
Because Wingard directly applies to Mr. Gordon’s argu-
ments, we conclude we lack jurisdiction to consider them.
See 779 F.3d at 1359 (holding 38 U.S.C. § 7292 “preclude[s]
this court from reviewing, on appeal from the Veterans
Court, a substantive statutory challenge to Department
rating-schedule regulations”).
In support of our jurisdiction, Mr. Gordon points to our
later decision in Frazier v. McDonough, 66 F.4th 1353
(Fed. Cir. 2023), which he argues “indicates that there is
no jurisdictional bar to considering [his] claim.” Appel-
lant’s Br. 24. There, Ms. Frazier raised a similar issue, al-
beit for the first time while on appeal to us. After no party
argued that we lacked jurisdiction to consider the issue in
the first instance, we addressed it on the merits. See Fra-
zier, 66 F.4th at 1356–57, 1357 n.2, 1360. Specifically, we
rejected Ms. Frazier’s new argument that 38 U.S.C.
§§ 1114 and 1155 bar the Secretary from adopting non-
compensable disability ratings. Id. at 1360. In doing so,
we noted that various veterans’ benefits statutes refer to
non-compensable disabilities and thus contravened
Ms. Frazier’s argument that the existence of a “disability”
necessarily mandates a compensable rating. Id. at 1360–
61.
Notwithstanding Frazier, we hold that we lack juris-
diction in this case. The differences in procedural posture
explain any divergence in how Frazier and Wingard ad-
dressed the arguments of their respective appellants. And
even assuming some tension between the two decisions,
Wingard was decided prior to Frazier. When two preceden-
tial cases are potentially inconsistent, we are bound by the
earlier precedent. See Newell, 864 F.2d at 765 (“Where
there is direct conflict, the precedential decision is the
first.”). Accordingly, we hold that we lack jurisdiction for
the reasons set forth in Wingard.
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GORDON v. COLLINS 8
CONCLUSION
We have considered Mr. Gordon’s remaining argu-
ments but find them unpersuasive. For the foregoing rea-
sons, we dismiss.
DISMISSED
COSTS
No costs.
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