Karl Ervin Miller, Jr. v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
KARL ERVIN MILLER, JR.,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1790
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-7390, Judge Joseph L. Toth.
______________________
Decided: August 21, 2026
______________________
K ENNETH D OJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant. Also represented by
K ENNETH M. C ARPENTER.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, P ATRICIA
M. MCCARTHY ; BRIAN D. G RIFFIN, RICHARD STEPHEN
HUBER, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
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MILLER v. COLLINS 2
Before L OURIE, BRYSON, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Mr. Karl E. Miller, Jr. appeals a decision of the United
States Court of Appeals for Veterans Claims affirming the
Board of Veterans’ Appeals’ denial of an earlier effective
date for his service-connected post-traumatic stress disor-
der. Mr. Miller argues that the Board’s application of
38 C.F.R. § 3.156(c)(2) (2006) was an impermissible retro-
active application of the regulation. We determine that the
Board’s application of the regulation was prospective and
thus proper. We affirm the judgment of the Veterans
Court.
BACKGROUND
I.
At issue here is the U.S. Department of Veterans Af-
fairs’ (“VA” or “agency”) regulation at 38 C.F.R. § 3.156(c),
that provides that the VA will reconsider a veteran’s origi-
nal filed, denied claim (“original claim”) upon the VA’s re-
ceipt or association of relevant service department records
of the veteran that were unavailable at the time of prior
decision. See 38 C.F.R. § 3.156(c); see also 27
Fed. Reg. 11,886, 11,887 (Dec. 1, 1962). Specifically, recon-
sideration provides a path for the veteran to receive disa-
bility benefits back to the date of the original claim. See
Mayhue v. Shinseki, 24 Vet. App. 273, 278–79 (2011) (rec-
ognizing the “VA’s well-established practice of reconsider-
ing claims based on newly discovered service department
records and assigning an effective date as early as the date
that the initial claim was filed”). The VA’s reasoning for
providing recovery of disability benefits to the date of the
original claim is “that a claimant should not be harmed by
an administrative deficiency of the government,” such as
an oversight of service department records that would have
supported the veteran’s original claim for benefits. 70 Fed.
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MILLER v. COLLINS 3
Reg. 35,388, 35,389 (June 20, 2005). For example, service
department records can provide evidence of the veteran’s
in-service stressor of post-traumatic stress disorder
(“PTSD”), such as documentation of the deployment of the
veteran’s unit and the combat experienced by the unit.
In October 2006, the VA amended the regulation, re-
structuring it into four subparts, 38 C.F.R.
§ 3.156(c)(1)–(c)(4).1 Subpart (c)(1) substantively mirrors
in relevant part the old regulation, and provides that:
[n]otwithstanding any other section in this part, at
any time after VA issues a decision on a claim, if
VA receives or associates with the claims file rele-
vant official service department records that ex-
isted and had not been associated with the claims
file when VA first decided the claim, VA will recon-
sider the claim, notwithstanding paragraph (a) of
this section.
38 C.F.R. § 3.156(c)(1) (2006). Subpart (c)(2), however,
places a limitation on reconsideration not previously in-
cluded in the old regulation. This limitation provides that:
[p]aragraph (c)(1) of this section does not apply to
records that VA could not have obtained when it
decided the claim because the records did not exist
when VA decided the claim, or because the claimant
failed to provide sufficient information for VA to
1 We refer to 38 C.F.R. § 3.156(c)(1)–(c)(2) introduced
through the October 2006 amendment as the “new regula-
tion” or as “38 C.F.R. § 3.156(c)(1), (c)(2) (2006).” Sub-
parts (c)(3) through (c)(4) are not at issue in this appeal,
and thus, we do not refer to them moving forward. Finally,
we refer to the version of the regulation in place prior to
the October 2006 amendment as the “old regulation.”
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MILLER v. COLLINS 4
identify and obtain the records from the respective
service department or from any other official source.
38 C.F.R. § 3.156(c)(2) (2006) (emphasis added). Thus, un-
der subpart (c)(2), automatic reconsideration upon receipt
or association of new and relevant service department rec-
ords is no longer available if the veteran did not “provide
sufficient information for [the] VA to identify and obtain
the records from the respective service department or from
any other official source” at the time the VA “decided the
claim.” Id.
In Cline v. Shinseki, the United States Court of Ap-
peals for Veterans Claims (“Veterans Court”) addressed
the interplay between the old and new regulations. 26 Vet.
App. 18 (2012). There, the Board of Veterans’ Appeals
(“Board”) applied the new regulation to a veteran’s 1999
“claim to reopen”2 when determining whether the veteran
was entitled to reconsideration. Id. at 20–21.3 On appeal,
the Veterans Court considered the “Princess Cruises fac-
tors” and concluded that the Board’s application of the new
regulation to the 1999 claim to reopen was an impermissi-
ble retroactive application of the regulation. Id. at 25–26.
The “Princess Cruises factors” are three factors for deter-
mining whether the retroactive application of a statute or
regulation is impermissible. Princess Cruises v. United
States, 397 F.3d 1358, 1362–63. (Fed. Cir. 2005)
2 A “claim to reopen” refers to a claim seeking to re-
open a previously denied claim based on “new and mate-
rial” evidence, which is evidence broader than service
department records. 38 C.F.R. § 3.156(a). The effective
date for a claim to reopen is the date of the most recent
claim to reopen or the date entitlement arose, whichever is
later. 38 C.F.R. § 3.400(r).
3 The VA associated new and relevant service de-
partment records with the veteran’s claims file in 2005.
Cline, 26 Vet. App. at 20.
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MILLER v. COLLINS 5
(explaining that “[r]etroactivity is not favored in the law
and, therefore, congressional enactments and administra-
tive rules will not be construed to have retroactive effect
unless their language requires this result” (internal quota-
tion marks and citation omitted)).
Considering Princess Cruises factor one, the “nature
and extent of the change of the law,” the Veterans Court
found there was a substantial change in the law in the new
regulation, i.e., the “VA was no longer required to recon-
sider claims where the claimant failed to provide sufficient
information to identify and obtain the service department
records.” Cline, 26 Vet. App. at 26. As to Princess Cruises
factor two, “the degree of connection between the operation
of the new rule and a relevant past event,” the Veterans
Court found a high degree of connection, i.e., “retroactive
application of § 3.156(c)(2) would necessarily impose a pen-
alty on [the veteran] for conduct that was not previously
prohibited.” Id. And for Princess Cruises factor three, “fa-
miliar considerations of fair notice, reasonable reliance,
and settled expectations,” the Veterans Court found such
considerations weighed in favor of the veteran, who “was
not given notice of any kind that the Secretary intended to
create a new bar to reconsideration before he ultimately
provided information sufficient to verify his stressor.” Id.
at 26–27. Thus, on the basis that the three factors weighed
against giving retroactive effect to the new regulation, the
Veterans Court concluded that the Board’s application of
the new regulation to the veteran’s 1999 claim to reopen
was impermissibly retroactive. Id. at 27. The Veterans
Court remanded with instructions that the old regulation
be applied when determining whether reconsideration was
appropriate. Id.
II.
Mr. Miller served in the U.S. Army from 1969 to 1972
and deployed to Vietnam during this time. J.A. 99.
Mr. Miller sought disability benefits for service-connected
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MILLER v. COLLINS 6
PTSD stemming from his time in Vietnam through a series
of four claims.
In April 1987, Mr. Miller filed his first claim (the “1987
claim”). J.A. 12. In his “Statement in Support of Claim,”
Mr. Miller alleged that he “had received treatment for
PTSD . . . [and] was treated in Boise Idaho for this . . . in
1983-84.” The VA then requested that Mr. Miller report
for an examination and that failure to report could result
in a disallowed claim. J.A. 283. Mr. Miller did not appear
for his examination, prompting the VA to deny his claim,
which became final. J.A. 285.
In April 1990, Mr. Miller filed a second claim with the
VA (“1990 claim”). J.A. 13; J.A. 17. This time, Mr. Miller
provided the VA with more details concerning his service,
including that: (1) he was assigned to the 25th Infantry Bri-
gade around the timeframe of 1970, (2) there was an in-
stance where he or members of his unit shot a child, and
(3) he saw “guys blown up on the perimeter many times.”
J.A. 276. The VA denied Mr. Miller’s April 1990 claim be-
cause “[t]here [wa]s no evidence of an acceptable stressor
or any diagnosis of post-traumatic stress disorder.” J.A. 19.
The denial of the 1990 claim became final. J.A. 30.
In August 2000, Mr. Miller filed a third claim (“2000
claim”), which the VA denied for lack of a confirmed
stressor or diagnosis of PTSD. J.A. 20–25. The denial of
the 2000 claim became final.
In March 2007, Mr. Miller filed his fourth claim (“2007
claim to reopen ”),4 along with a VA Form 21-0781, entitled
“Statement in support of claim for service connection for
post-traumatic stress disorder (PTSD).” J.A. 45–46. In the
VA form, Mr. Miller described two stressor incidents
4 The parties refer to this claim as a “claim to reo-
pen.” See Appellant Br. 4; Appellee Br. 1. Thus, we do here
as well.
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MILLER v. COLLINS 7
during his deployment at the Cu Chi Base Camp with the
65th Engineer Battalion, which was a part of the 25th In-
fantry Brigade, and with the 54th Engineer Company. Id.
In June 2007, the VA denied Mr. Miller’s 2007 claim to
reopen (“June 2007 Decision”).5 J.A. 47. In June 2008,
Mr. Miller filed a notice of disagreement, the first step in
appealing the June 2007 Decision. J.A. 51–55.
On August 13, 2008, Mr. Miller requested service de-
partment records from the Department of the Army, U.S.
Army and Joint Services Records Research Center
(“AJSRRC”) concerning Mr. Miller’s time with the 65th En-
gineer Battalion from May 14 to October 23, 1970. J.A. 60.
On August 27, 2008, the AJSRRC sent Mr. Miller copies of
service department records for the 65th Engineer Battalion
and other military units for the requested period.
J.A. 60–89. In November 2008, during the pendency of Mr.
Miller’s appeal of the VA’s June 2007 Decision, Mr. Miller
submitted the evidence he received from the AJSRRC to
the VA to support his claimed PTSD stressors. J.A. 56–59;
see also J.A. 62–89.
In June 2010, the VA awarded Mr. Miller disability
benefits for service-connected PTSD with an effective date
of Mr. Miller’s 2007 claim to reopen. J.A. 99–105. Mr. Mil-
ler appealed to the Board. J.A. 107–11.
In 2022, after a series of remands and appeals, the
Board granted Mr. Miller an earlier effective date of April
1990, the date of Mr. Miller’s 1990 claim (the “Board 2022
Decision”). J.A. 273–78. The Board determined that re-
consideration was appropriate and applied the new regula-
tion. J.A. 277–78. The Board determined that at the time
of Mr. Miller’s 1990 claim, Mr. Miller had provided the VA
5 The VA, however, granted service-connection for
diabetes, the grant of which is not at issue in this appeal.
J.A. 47.
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MILLER v. COLLINS 8
with sufficient information to identify and obtain the 2008
service department records, and thus, Mr. Miller was enti-
tled to an effective date of 1990. Id. The Board determined,
however, that Mr. Miller failed to provide sufficient infor-
mation to identify and obtain the 2008 service department
records at the time of his 1987 claim and thus, he was not
entitled to an earlier effective date of 1987. J.A. 278.
Mr. Miller appealed to the Veterans Court, arguing en-
titlement to an effective date of 1987. J.A. 1–4. Mr. Miller
argued that the Board’s application of the new regulation
was impermissibly retroactive, in contravention of Cline.
J.A. 3. According to Mr. Miller, the Board should have ap-
plied the old regulation, which required automatic recon-
sideration once the VA received the new and relevant
service department records, without any consideration of
whether the veteran failed to provide information to iden-
tify the service records at the time of original claim filing.
Id.
In 2024, the Veterans Court affirmed the Board 2022
Decision, concluding that because the new regulation was
in effect at the time of Mr. Miller’s 2007 claim to reopen,
the Board’s application of the new regulation was not im-
permissibly retroactive (“Veterans Court 2024 Decision”).
J.A. 1–4. The Veterans Court distinguished Cline because
there, the Board applied the new regulation to the vet-
eran’s 1999 claim to reopen, a claim which was filed prior
to the new regulation. J.A. 3. The Veterans Court noted
that in this case, the Board applied the new regulation to
Mr. Miller’s 2007 claim to reopen because the claim was
filed after the new regulation became effective. Id.
Mr. Miller appeals. We have jurisdiction under
38 U.S.C. § 7292(c).
STANDARD OF REVIEW
We have exclusive jurisdiction to review decisions of
the Veterans Court involving questions of law. 38 U.S.C.
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MILLER v. COLLINS 9
§ 7292. Questions of statutory and regulatory interpreta-
tion are questions of law. Breland v. McDonough, 22 F.4th
1347, 1350 (Fed. Cir. 2022). As such, “[w]e review statu-
tory and regulatory interpretations of the Veterans Court
de novo.” Parrott v. Shulkin, 851 F.3d 1242, 1247 (Fed. Cir.
2017) (internal quotation marks and citation omitted).
D ISCUSSION
The issue on appeal is whether the Board legally erred
in its application of the new regulation when concluding
that reconsideration of Mr. Miller’s original 1987 claim for
service-connected PTSD was barred under subsection
(c)(2). For the reasons stated below, we hold that the Board
did not err in its application of the new regulation to
Mr. Miller’s original 1987 claim for service connection. We
thus affirm the judgment of the Veterans Court.
We start our analysis by noting that the parties agree
that the new regulation is forward-looking and must be ap-
plied prospectively. The focus of the dispute, then, is the
identity of the event or action that triggers the application
of the new regulation. See Oral Arg. at 1:38–1:56 (“Every-
one agrees that the new regulation is forward looking. The
question is forward from what event.”).
According to Mr. Miller, the new regulation applies
prospectively from the date of the veteran’s original claim.
Stated differently, Mr. Miller asserts that the new regula-
tion only applies to veterans’ original claims filed on or af-
ter October 6, 2006, the effective date of the new
regulation. Appellant Br. 9–12; Oral Arg. at 0:50–1:01,
4:18–4:56, 8:10–8:33, 20:50–21:07. Mr. Miller asserts that
since the date of his original claim was well before October
2006, the Board erred when it applied the new regulation
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MILLER v. COLLINS 10
and instead should have applied the old regulation. In sup-
port, Mr. Miller relies on Cline.6
The government argues that the new regulation is ap-
plied prospectively from the date of a veteran’s claim to re-
open. This means that the new regulation would apply
only to claims to reopen that were filed on or after October
6, 2006. The government reasons that since Mr. Miller’s
claim to reopen was filed after October 2006, the new reg-
ulation would apply.
The issue on appeal boils down to one of regulatory in-
terpretation: based on the language of the new regulation,
what event, or action, triggers its application? We begin
with the text of the regulation. See Rep. of Sudan v. Har-
rison, 587 U.S. 1, 8 (2019) (noting that when the issue con-
cerns the meaning of a statute, the court “begin[s] where
all such inquiries must begin: with the language of the stat-
ute itself” (citation modified)); Kisor v. Wilkie, 588 U.S. 558,
628 (2019) (Gorsuch, J., concurring) (“When we interpret a
6 We are not bound by Cline, a decision issued by the
Veterans Court. See, e.g., Elkins v. Gober, 229 F.3d 1369,
1375 (Fed. Cir. 2000) (noting that decisions by the Veterans
Court are “not binding on us”). But we note that no party
challenges the portion of Cline that held that neither the
VA nor a tribunal may give the new regulation retroactive
effect in light of the Princess Cruises factors. See Appellant
Br. 7–13; Appellee Br. 6–11. Neither the validity of this
portion of Cline, nor Cline’s application and weighing of the
Princess Cruises factors was briefed in this appeal. See Ap-
pellant Br. 7–13; Appellee Br. 6–11. On that basis, we do
not address those issues. See SmithKline Beecham Corp.
v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (citing
Anderson v. City of Bos., 375 F.3d 71, 91 (1st Cir. 2004)
(“When a party includes no developed argumentation on a
point . . . we treat the argument as waived under our well
established rule.”)).
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MILLER v. COLLINS 11
regulation, we typically . . . proceed in the same way we
would when interpreting any other written law: We begin
our interpretation of the regulation with its text.” (citation
modified)). Subsection (c)(1) of the new regulation provides
that:
[n]otwithstanding any other section in this part, at
any time after VA issues a decision on a claim, if
VA receives or associates with the claims file rele-
vant official service department records that ex-
isted and had not been associated with the claims
file when VA first decided the claim, VA will recon-
sider the claim, notwithstanding paragraph (a) of
this section.
38 C.F.R. § 3.156(c)(1) (2006) (emphases added). Subsec-
tion (c)(2) of the new regulation provides that:
[p]aragraph (c)(1) of this section does not apply to
records that VA could not have obtained when it
decided the claim because the records did not exist
when VA decided the claim, or because the claim-
ant failed to provide sufficient information for VA
to identify and obtain the records from the respec-
tive service department or from any other official
source.
38 C.F.R. § 3.156(c)(2) (2006). When read together, these
two provisions plainly indicate that subsection (c)(2) is in-
voked upon the VA’s receipt or association of new and rele-
vant service department records. 38 C.F.R.
§ 3.156(c)(1)–(c)(2) (2006). If the VA never receives or as-
sociates new and relevant service department records with
the veteran’s claims file, subsection (c)(2) remains inactive.
And while the veteran’s original claim does play a role in
the operation of subsection (c)(2), the original claim does
not by itself invoke application of subsection (c)(2). Again,
it is not until the VA receives or associates new and rele-
vant service department records that subsection (c)(2) ap-
plies. For this reason, we hold that the action that invokes
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MILLER v. COLLINS 12
the application of the new regulation is the VA’s receipt or
association of new and relevant service department rec-
ords.
We reject the government’s position that a claim to re-
open is the necessary trigger here.7 Appellee Br. 7–11.
Subsection (c)(1) states that it applies “notwithstanding
paragraph (a) of this section.” 38 C.F.R. § 3.156(c)(1)
(2006). “[P]aragraph (a) of this section” allows a veteran to
“reopen” a previously denied claim by submitting more
generally “new and material evidence.” 38 C.F.R.
§ 3.156(a) (2006). In other words, reconsideration under
subsection (c)(1), and by extension (c)(2), may proceed “not-
withstanding” a veteran’s claim to reopen. Additionally, as
Mr. Miller’s counsel correctly observed at oral argument,
“this regulation does not require any filing or claim [to re-
open] by the veteran.” Oral Arg. at 2:02–2:51; see also 38
C.F.R. § 3.156(c)(1) (2006). Rather, the regulation self-ini-
tiates once the VA receives or associates new and relevant
service department records. 38 C.F.R. § 3.156(c)(1) (2006).
In other words, the VA could receive or associate new and
relevant service department records without the veteran
knowing such records were received. Oral Arg. at
2:02–2:51. Thus, the new regulation could be triggered
without the veteran ever filing a claim to reopen. See 38
C.F.R. §§ 3.156 (a), (c)(1)–(c)(2) (2006).
We also disagree with the government that the portion
of Cline, which looked to the claim to reopen as the trigger-
ing event, dictates the analysis here. Appellee Br. 8–9. As
previously noted, we are not bound by Cline. In addition,
7 A claim to reopen may potentially trigger reconsid-
eration under the new regulation, if, for example, the vet-
eran submits new and relevant service department records
with his claim to reopen. However, a claim to reopen is not,
by itself and without any connection to new and relevant
service department records, the triggering event.
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MILLER v. COLLINS 13
Cline’s reference to the claim to reopen as the triggering
event is not instructive. Cline, 26 Vet. App. at 21. In Cline,
the Veterans Court did not explain why it looked to Mr.
Cline’s 1999 claim to reopen, as opposed to Mr. Cline’s 1993
original claim or the VA’s 2005 receipt of new and relevant
service department records, when concluding that the
Board’s application of the new regulation was retroactive.
Id. Nor did it provide any support for relying on the claim
to reopen apart from the fact that Mr. Cline’s claim was
pending appeal when the Board applied the new regula-
tion. See id. But, that the 1999 claim to reopen was pend-
ing appeal does not answer the regulatory interpretation
issue before us: what action triggers application of the new
regulation? We hold that the plain language of the regula-
tion, which guides this analysis, makes clear that the VA’s
receipt or association of a veteran’s new and relevant ser-
vice department records is the triggering event.
We recognize Mr. Miller’s argument that the Board’s
application of the new regulation included consideration of
facts relating to his original 1987 claim. See J.A. 278. For
example, the Board considered whether, in 1987, Mr. Mil-
ler provided “sufficient information” to the VA to locate
new and relevant service department records. Id. To be
clear, this obligation to provide sufficient information did
not exist at the time Mr. Miller filed his 1987 claim. See
J.A. 3 (citing Cline, 26 Vet. App. at 26). However, “a stat-
ute is not made retroactive merely because it draws upon
antecedent facts for its operation.” Landgraf v. USI Film
Prods., 511 U.S. 244, 269 n. 24 (1994) (internal quotation
marks and citation omitted). If this were the case, then
“every time a man relied on existing law in arranging his
affairs, he [would be] made secure against any change in
legal rules [and] the whole body of our law would be ossified
forever.” Id. (citation modified) (quoting L. Fuller, The Mo-
rality of Law 60 (1964)) (explaining that “[e]ven uncontro-
versially prospective statutes may unsettle expectations
and impose burdens on past conduct [such as] a new
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MILLER v. COLLINS 14
property tax or zoning regulation may upset the reasonable
expectations that prompted those affected to acquire prop-
erty” (citation modified)).
Mr. Miller contends that to apply the 2006 version of
the regulation in his case would have an unfairly retroac-
tive effect, because that version of the regulation did not
exist in 1987 when Mr. Miller filed his first claim for bene-
fits. But the application of the regulation in this setting is
neither impermissibly retroactive nor unfair. Unlike the
situation in the Cline case before the Veterans Court,
Mr. Miller was on notice of the 2006 amendment to section
3.156 when he submitted his claim to reopen his case in
2007. As the Veterans Court explained, the initial claim
stream had ended long before the 2006 amendment, and
the new claim stream stemming from the claim to reopen
was subject to the version of the regulation at the time the
claim to reopen was filed. J.A. 3. Moreover, when Mr. Mil-
ler submitted his initial 1987 claim without supporting in-
formation, he could not reasonably have assumed that the
procedures for adjudicating claims that were outlined in
the 1987 version of section 3.156 would not be modified
over time. See Landgraf, 511 U.S. at 270; Rodriguez v.
Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008); Princess
Cruises, 397 F.3d at 1365–66.
In sum, the action that invokes the application of the
new regulation is the VA’s receipt or association of a vet-
eran’s new and relevant service department records. That
action in this case is the VA’s receipt or association of new
and relevant service records that occurred in 2008, after
the new regulation took effect. No party disputes the
Board’s finding that the VA received or associated new and
relevant service records with Mr. Miller’s claim in 2008,
and, thus, we accept this finding as true. Appellant Br.
8–13; Appellee Br. 4, 7–11; Veterans Court 2024 Decision,
J.A. 2 (noting that “[t]he Board found that the service de-
partment records associated with the claims file in 2008
were new and relevant and that [Mr. Miller’s] grant of
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MILLER v. COLLINS 15
service connection was based at least partly on those rec-
ords.”); Board 2022 Decision, J.A. 273 (noting under “Find-
ings of Fact” that “[i]n August 2008, official service
department records were obtained, such that reconsidera-
tion of the finally denied claim was warranted”). Because
the new regulation was invoked in 2008, the Board’s appli-
cation of the new regulation in its 2022 Decision was pro-
spective and proper. There is no legal error here. We
affirm the Veterans Court.
CONCLUSION
We have considered Mr. Miller’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
decision of the Veterans Court.
AFFIRMED
COSTS
No costs.
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