Lydia C. Dover v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LYDIA C. DOVER,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-2146
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-2088, Senior Judge Mary J.
Schoelen.
______________________
Decided: July 28, 2026
______________________
K ATHERINE MUNYAN, Orrick, Herrington & Sutcliffe
LLP, New York, NY, argued for claimant-appellant. Also
represented by MELANIE L. BOSTWICK, Washington, DC;
K ENNETH M. CARPENTER , Carpenter Chartered, Topeka,
KS.
SOSUN B AE , Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
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DOVER v. COLLINS 2
WILLIAM J AMES G RIMALDI, P ATRICIA M. MC CARTHY , BRETT
SHUMATE; MATTHEW ALBANESE , CHRISTINA L YNN G REGG,
BRIAN D. G RIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
Before REYNA, MAYER , and HUGHES , Circuit Judges.
HUGHES , Circuit Judge.
Lydia C. Dover, the surviving spouse of veteran
Jack E. Dover, appeals a decision of the United States
Court of Appeals for Veterans Claims. That decision af-
firmed the Board of Veterans’ Appeals’ decision denying re-
vision of a 1968 VA denial of service connection on the basis
of clear and unmistakable error. For the reasons below, we
affirm-in-part and dismiss-in-part.
I
Mr. Dover served honorably in the U.S. Navy from
April 6, 1956, to February 17, 1960. In March 1968,
Mr. Dover filed a claim with the U.S. Department of Veter-
ans Affairs (VA) requesting service connection and com-
pensation for, among other things, conditions resulting
from an electrical shock sustained during service. In his
application, Mr. Dover stated that he “received severe
shock and electrical burns” on his right hand, feet, and
back that resulted in limited use of his hand and height-
ened sensitivity and lesions on one of his fingers. J.A. 398.
He also reported that skin growths had begun accumulat-
ing on his feet since he sustained the electrical shock. In
connection with his claim for benefits, Mr. Dover under-
went a VA medical examination and was diagnosed with
burn scars on his right middle finger and multiple palmar
and plantar hyperkeratosis. See J.A. 20 n.2 (“Hyperkerato-
sis is a thickening of the outer layer of the skin.”).
On May 13, 1968, the VA issued a rating decision
awarding service connection for the burns and scarring of
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DOVER v. COLLINS 3
Mr. Dover’s right middle finger but denying service connec-
tion for his hyperkeratosis. As was common at the time, the
rating decision contained no explanation of the denial.
Mr. Dover did not appeal the denial of service connection
for multiple palmar and plantar hyperkeratosis, and the
1968 decision became final.
In March 2006, Mr. Dover requested the VA reopen his
hyperkeratosis claim and submitted new and material evi-
dence of service connection. In piecemeal decisions span-
ning three years, Mr. Dover was awarded service
connections for hyperkeratosis of each of his feet and
hands, and in February 2009 he was assigned a combined
disability rating of 60% for his “diseases of keratinization.”
J.A. 368. However, these benefits were only effective as of
March 23, 2006, the date the VA received Mr. Dover’s re-
quest to reopen his claim on the basis of new and material
evidence. Mr. Dover sought an earlier effective date by
again requesting the VA reopen his 1968 claim, but this
time suggesting the 1968 denial warranted revision on the
basis of clear and unmistakable error (CUE).1
Among other requirements, to establish CUE a claim-
ant must demonstrate either that “the correct facts, as they
were known at the time, were not before the adjudicator,”
or that “the statutory or regulatory provisions extant at the
time were incorrectly applied.” Willsey v. Peake, 535 F.3d
1368, 1371 (Fed. Cir. 2008). Mr. Dover argued that the
1968 VA failed to apply 38 C.F.R. § 3.303(d), which allows
a service connection for diseases diagnosed after service if
1 The procedural history of Mr. Dover’s CUE claim is
lengthy and involves four prior appeals to both the Board
of Veterans’ Appeals and the United States Court of Ap-
peals for Veterans Claims. Given the complexity of this his-
tory, we recount only what is necessary to our review.
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DOVER v. COLLINS 4
“all the evidence, including that pertinent to service, estab-
lishes that the disease was incurred in service.”2 Mr. Dover
argued that because all evidence of record in 1968 favored
a finding of nexus, the 1968 VA should have granted ser-
vice connection.
As relevant here, the Board denied Mrs. Dover’s3 CUE
claim on December 16, 2022, finding there was no evidence
that the relevant law, including 38 C.F.R. § 3.303(d), was
not applied. The Board first summarized the relevant evi-
dence of record regarding whether Mr. Dover’s hyperkera-
tosis was service connected. That evidence consisted only
of Mr. Dover’s own lay statements to his medical providers
that he believed his hyperkeratosis was related to his in-
service electrical shock. The Board next explained that be-
cause a medical professional participated in assessing
Mr. Dover’s 1968 claim, the VA was permitted to “assess
the probative value of evidence in a way that it now can-
not.” J.A. 82–83. And while the 1968 VA’s decision did not
explain its weighing of the evidence, which was permissible
in 1968, the Board found that it was “entirely plausible”
that the 1968 VA, “with or without its medical expertise,”
simply assigned Mr. Dover’s “lay nexus opinion no proba-
tive value.” J.A. 83. As a result, the Board denied the CUE
claim because the 1968 VA “could have reasonably deter-
mined that the evidence did not establish that the disease
was incurred in service, as required by section 3.303(d).”
J.A. 83.
2 The regulation presently in force is identical, in rel-
evant part, to that in effect in 1968. Compare 38 C.F.R.
§ 3.303(d), with 26 Fed. Reg. 1561, 1579–80 (Feb. 24,
1961).
3 Mr. Dover died January 2013, and Mrs. Dover was
permitted to substitute for purposes of processing his pend-
ing appeal to completion. See Crews v. McDonough,
63 F.4th 37, 39–40 (Fed. Cir. 2023); 38 U.S.C. § 5121A.
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DOVER v. COLLINS 5
Mrs. Dover appealed to the Veterans Court, which af-
firmed in June 2024. See Dover v. McDonough,
No. 23-2088, 2024 WL 2873523, at *1 (Vet. App. June 7,
2024) (Decision). In relevant part, the Veterans Court re-
jected Mrs. Dover’s argument that the Board’s CUE denial
rested on an erroneous interpretation of the evidentiary re-
quirements for establishing a nexus between Mr. Dover’s
hyperkeratosis condition and his in-service electrical shock
injury. Mrs. Dover timely appealed.
II
Our jurisdiction over appeals from Veterans Court de-
cisions is governed by 38 U.S.C. § 7292. While we may re-
view the Veterans Court’s decision regarding legal issues,
we generally may not review challenges to its factual de-
terminations or its application of law to the facts of a spe-
cific case. See 38 U.S.C. § 7292(a), (d).
On appeal, Mrs. Dover raises two main arguments.
First, she argues that the Veterans Court erred by failing
to recognize that the Board’s decision rested on an inter-
pretation of the 1968 VA’s decision that contains an error
of law sufficient to establish CUE. Second, Mrs. Dover ar-
gues that even absent the Board’s erroneous rationale, its
decision to deny CUE is still unsupportable because all ev-
idence in the 1968 record suggested that Mr. Dover’s hy-
perkeratosis was service connected. We address each
argument in turn.
As to the first issue, Mrs. Dover’s argument is that the
Board’s denial of CUE rested on the imposition of a legally
erroneous requirement that service connection must be es-
tablished via medical evidence, which she suggests is im-
permissible under 38 U.S.C. § 1131. Mrs. Dover argues
that the Board interpreted the 1968 decision as categori-
cally discounting Mr. Dover’s lay evidence of service con-
nection merely because it was not corroborated by any
medical evidence. And she contends that, as a result, the
Board’s CUE denial and the Veterans Court’s affirmance
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DOVER v. COLLINS 6
were erroneous because the law was clear in 1968 that lay
evidence of service connection must be considered even in
the absence of corroborating medical evidence. We need not
reach this argument, however, because we disagree with
Mrs. Dover’s fundamental characterization of the Board’s
decision.
Nothing in the Board’s December 2022 decision com-
pels the conclusion that it interpreted the 1968 decision as
discounting Mr. Dover’s lay opinion of nexus solely because
it was not corroborated by medical evidence. Consequently,
the Veterans Court did not err by failing to recognize an
error that does not exist. Mrs. Dover argues that the fol-
lowing statement from the Board indicates that it categor-
ically discounted Mr. Dover’s lay evidence: “The only
evidence of a nexus . . . was the Veteran’s contention . . . .
There was no medical evidence of such a link.” J.A. 82; see
Appellant Br. 28. But we disagree with that interpretation.
Rather, the Board was simply cataloging the evidence of
record in 1968, which included its observation that there
existed some lay evidence of nexus and no medical evi-
dence. See J.A. 82 (“The evidence of record at the time of
the May 1968 rating decision . . . .”). The Board then held
as a factual matter that it was plausible that the 1968 VA,
with or without the expertise of its medical member, simply
“assigned the Veteran’s lay nexus opinion no probative
value.” J.A. 83. That finding is not equivalent, as Mrs. Do-
ver suggests, to the Board adopting the position that the
1968 VA assigned the lay nexus opinion no value as a gen-
eral rule because it was not corroborated by medical evi-
dence. Because Mrs. Dover’s argument rests on a
mischaracterization of the Board’s decision, we need go no
further in our analysis.4 For this reason, we reject Mrs. Do-
ver’s first argument.
4 Mrs. Dover also argues that the Veterans Court
erred by (1) ignoring her argument that the Board’s CUE
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DOVER v. COLLINS 7
Mrs. Dover’s second contention is that the Board’s CUE
denial is nonetheless “unsupportable” absent its purported
reliance on the lack of medical evidence to deny service con-
nection. Appellant Br. 33. Specifically, Mrs. Dover argues
that because the only nexus-related evidence of record in
1968—i.e., Mr. Dover’s lay statements to his physician—fa-
vored granting service connection, the Board’s CUE denial
can be justified only by assuming the 1968 VA impermissi-
bly ignored all the evidence before it. As an initial matter,
we do not understand the Board’s decision as suggesting
the 1968 VA ignored evidence of record or discounted
Mr. Dover’s lay evidence because it was not supported by
other evidence. Indeed, the Board explicitly found that the
1968 VA “considered the evidence of record.” J.A. 83. And
the Board explained that the 1968 VA “could have reason-
ably determined that the evidence did not establish that
denial rested on the erroneous imposition of a requirement
of medical evidence in violation of 38 U.S.C. § 1131, and
(2) dismissing this court’s decision in Spicer v. McDonough,
61 F.4th 1360 (Fed. Cir. 2023), as inapplicable based on the
erroneous conclusion that it applies only to 38 U.S.C.
§ 1110 and “has not been applied to section 1131.” Appel-
lant Br. 29–30 (quoting Decision, 2024 WL 2873523, at *5).
As to the first allegation of error, we note that a “litigant’s
right to have all issues fully considered and ruled on by the
appellate court does not equate to a right to a full written
opinion on every issue raised.” Bernklau v. Principi,
291 F.3d 795, 801 (Fed. Cir. 2002) (citation omitted). As to
the second, while the Veterans Court did err in its charac-
terization of Spicer, which was explicitly a section 1131
case, that error is harmless. Because our decision today
makes clear that the Board did not deny CUE by permit-
ting the VA to categorically exclude uncorroborated lay ev-
idence, Mrs. Dover’s assignments of error that presuppose
otherwise lack merit.
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DOVER v. COLLINS 8
the disease was incurred in service.” J.A. 83. This sugges-
tion that Mr. Dover’s lay evidence may have failed to per-
suade the 1968 VA of service connection is a finding
regarding the sufficiency of the evidence that this court
may not review. Because we cannot address this argument
without assessing the underlying record and reviewing fac-
tual determinations, we dismiss this portion of Mrs. Do-
ver’s appeal for lack of jurisdiction. See 38 U.S.C.
§ 7292(d)(2).
III
We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons above, we af-
firm-in-part and dismiss-in-part.
AFFIRMED-IN-PART, DISMISSED-IN-PART
COSTS
No costs.
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