Case: 20-1532    Document: 17     Page: 1   Filed: 08/03/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                  MELVIN C. HINTON,
                   Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2020-1532
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-4477, Judge Amanda L. Mere-
 dith.
                 ______________________

                 Decided: August 3, 2020
                 ______________________

    MELVIN C. HINTON, Lancaster, TX, pro se.

     KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 ETHAN P. DAVIS, TARA K. HOGAN, ROBERT EDWARD
 KIRSCHMAN, JR.; CHRISTOPHER O. ADELOYE, BRIAN D.
 GRIFFIN, Office of General Counsel, United States Depart-
 ment of Veterans Affairs, Washington, DC.
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2                                           HINTON   v. WILKIE



                  ______________________

    Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.
 PER CURIAM.
     Pro se appellant Melvin C. Hinton appeals a decision of
 the United States Court of Appeals for Veterans Claims
 (Veterans Court) denying certain claims for disability com-
 pensation and declining to review the disability rating for
 his psychiatric disorder. Hinton v. Wilkie, No. 18-4477,
 

(Vet. App. Sept. 23, 2019). The Veterans
 Court determined that Mr. Hinton never properly initiated
 an appeal of his disability rating because he had failed to
 submit the standardized form required by the applicable
 regulations. Because we have previously upheld the valid-
 ity of those regulations, the Veterans Court did not err in
 declining to review Mr. Hinton’s disability rating. We af-
 firm-in-part the Veterans Court’s decision and dismiss-in-
 part the appeal.
                        BACKGROUND
     Mr. Hinton is a Veteran of the Persian Gulf War. In
 September 2012, he submitted various claims to the De-
 partment of Veterans Affairs (VA) for service-connected
 disability benefits, including claims for PTSD, sleep disor-
 der, and memory loss. During a VA psychiatric exam in
 July 2013, Mr. Hinton reported his sleeping problems, but
 the medical examiner concluded that his condition did not
 meet the diagnostic criteria for a psychiatric condition.
 S.A. 2. 1 The VA Regional Office (RO) denied all of Mr. Hin-
 ton’s claims in a rating decision issued in August 2013.
 Later that month, Mr. Hinton timely filed a Notice of




    1 S.A. refers to the supplemental appendix submitted
 with the Government’s brief.
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 HINTON   v. WILKIE                                          3



 Disagreement (NOD) appealing, inter alia, the PTSD, sleep
 disorder, and memory loss denials.
     In November 2015, while his Board appeal was pend-
 ing, Mr. Hinton underwent another psychiatric examina-
 tion where a VA medical examiner diagnosed him with
 “other specified trauma- and stressor-related disorder” but
 found that he did not meet the criteria for PTSD. S.A. 3.
 The examination also indicated that Mr. Hinton did not
 suffer from memory issues and his sleep disturbances were
 a symptom of, and not independent from, his psychiatric
 disorder.
     In light of this additional examination, the RO issued
 a new rating decision in September 2017, granting service
 connection for “other specified trauma[-] and stressor[-]re-
 lated disorder (claimed as [PTSD])” and assigning a 30%
 disability rating. S.A. 3. The RO stated in its September
 2017 decision that the 30% rating was “considered a full
 grant of the benefit sought on appeal” for the PTSD claim
 and did not address the memory loss and sleep disorder
 claims. R. 94. 2 An accompanying letter notified Mr. Hin-
 ton that if he disagreed with the rating decision, he “must
 complete and return . . . the enclosed VA Form 21-0958,
 Notice of Disagreement, in order to initiate [his] appeal. . .
 . [within] one year from the date of this letter.” R. 90 (em-
 phasis in original). Mr. Hinton did not submit a completed
 VA Form 21-0958 for the September 2017 rating decision.
    Subsequently, the RO issued a Supplemental State-
 ment of the Case (SSOC) 3 describing the issues still



     2 R. refers to the record before the Veterans Court. Rec-
 ord of Proceedings Amended, Hinton v. Wilkie, No. 18-
 4477, 

(Vet. App. Sept. 23, 2019).
     3 Though unclear from the record before us, the SSOC

 does not appear to discuss the 30% disability rating from
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4                                           HINTON   v. WILKIE



 pending for appeal before the Board of Veteran’s Appeals
 (Board). R. 3. In November 2017, Mr. Hinton responded
 to the SSOC by filing a completed VA Form 9 4 that ex-
 pressed his dissatisfaction with the September 2017 rating
 decision.

the Board adjudicated the appeal of the
 claim denials for sleep disturbances and memory loss. The
 Board agreed with the RO, finding that the “claimed disa-
 bilities are actually symptoms of [Mr. Hinton’s] [] service-
 connected acquired psychiatric disorder” for which he was
 already being compensated. R. 9. Since these were not dis-
 tinctly diagnosed conditions with symptomatology sepa-
 rate and apart from his service-connected psychiatric
 disorder, the Board concluded it was precluded from grant-
 ing those claims by the prohibition against pyramiding un-
 der 38 C.FR. § 4.14. R. 10–11.
     The Board declined to review the September 2017 rat-
 ing decision because Mr. Hinton had not properly initiated
 an appeal of this issue under the applicable regulations.
 While acknowledging that Mr. Hinton had expressed his
 dissatisfaction using VA Form 9, the Board observed that
 the regulations governing appeals had been amended in
 2015 to require all appeals to originate on a standard form




 the September 2017 decision, instead only addressing de-
 nials for Mr. Hinton’s remaining claims (e.g., memory loss
 and sleep disturbances). R. 3.
     4 VA Form 9 is used to sustain an appeal of the issues

 discussed in a SOC or SSOC and request a hearing before
 the Board. This form is used after an appeal for those is-
 sues has been initiated by filing a NOD. See, e.g., U.S. De-
 partment of Veterans Affairs, Manage a Legacy VA Appeal,
 https://www.va.gov/decision-reviews/legacy-appeals/ (last
 updated Jun. 22, 2020).
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 HINTON   v. WILKIE                                          5



 provided by the VA. 5 The Board concluded that the
 amended regulations required Mr. Hinton to appeal his
 30% disability rating using the prescribed VA Form 21-
 0958, and no other form would be acceptable. See R. 4
 (“[T]o the extent that [Mr. Hinton] submitted a VA Form 9
 that disagrees with the rating assigned for that disability,
 it cannot be accepted as a proper appeal of that issue.”); see
 also 38 C.F.R. § 20.201(a)(1) (2015) (“[The] VA will not ac-
 cept as a [NOD] an expression of dissatisfaction . . . that is
 submitted in any other format, including a different VA
 form.”). The Board advised Mr. Hinton that he could still
 timely appeal the September 2017 rating decision by “sub-
 mitting a completed VA Form 21-0958 prior to October 12,
 2018.” R. 4. Mr. Hinton moved for reconsideration of the
 Board’s decision, which the Chairman of the Board denied
 on August 1, 2018. The Chairman reiterated that Mr. Hin-
 ton must submit a completed VA Form 21-0958 prior to Oc-
 tober 2018 to properly appeal the September 2017 rating
 decision.
     Before the Veterans Court, Mr. Hinton argued that the
 Board erred by declining to grant him a higher disability
 rating for his other specified trauma- and stressor-related
 disorder. Mr. Hinton did not challenge the denial of sepa-
 rate service connections for his sleep disorder and memory
 loss claims—instead, he argued that the claimed conditions
 were symptoms of his service-connected psychiatric disor-
 der, and his symptomology supported a disability rating



     5 Prior to 2015, the VA permitted claimants to initiate
 appeals “by filing in any format a statement that can be
 ‘reasonably construed’ as seeking appellate review.”
 Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660
 (Sept. 25, 2014). However, effective March 24, 2015, the
 regulations governing appeals were amended to require all
 appeals to originate on standard forms prescribed by the
 VA.

see also 38 C.F.R. § 20.201(a)(1) (2015).
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6                                            HINTON   v. WILKIE



 greater than 30%. Because Mr. Hinton “acknowledge[d] . .
 . that he did not file an appropriate NOD” to the September
 2017 decision and “[did] not argue or point to any evidence
 reflecting that he properly appealed” that decision, the Vet-
 erans Court declined to review the correctness of the 30%
 rating, which was never properly before the Board. S.A. 5–
 6. The Veterans Court affirmed the Board’s decision and
 dismissed his appeal of the Chairman’s denial for reconsid-
 eration.
     Mr. Hinton timely appeals, seeking to invoke our juris-
 diction under 38 U.S.C. § 7292.
                         DISCUSSION
     Our jurisdiction to review decisions by the Veterans
 Court is limited by statute. Scott v. Wilkie, 

,
 1377–78 (Fed. Cir. 2019). We may review “the validity of a
 decision of the Court on a rule of law or of any statute or
 regulation . . . or any interpretation thereof (other than a
 determination as to a factual matter) that was relied on by
 the Court in making the decision.” 38 U.S.C. § 7292(a). We
 may not, however, review factual challenges or the appli-
 cation of law to the facts of a particular case absent a con-
 stitutional issue.

  September 2017 Rating Decision
     On appeal, Mr. Hinton argues that the Veterans Court
 erroneously declined to consider whether he is entitled to a
 disability rating higher than the 30% rating granted in the
 September 2017 RO decision. Mr. Hinton does not deny
 that he failed to submit a NOD to that decision on VA Form
 21-0958 within the one-year time limit. Instead, we
 broadly construe Mr. Hinton’s pleadings to present two ar-
 guments for why he properly appealed the 30% rating.
 First, we read Mr. Hinton’s appeal as asserting that his
 properly filed NOD to the August 2013 decision, which ap-
 pealed the denial of service connection for his PTSD claim,
 should be construed to have also initiated appellate review
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 HINTON   v. WILKIE                                          7



 of the 30% rating granted in the September 2017 decision.
 Alternatively, Mr. Hinton appears to argue that his No-
 vember 2017 VA Form 9 should be construed as a proper
 NOD to the 30% rating because it is a written communica-
 tion expressing dissatisfaction with the September 2017
 decision. We find neither argument persuasive.
      First, we conclude that Mr. Hinton’s NOD appealing
 the denial of service connection for his PTSD claim cannot
 also initiate appellate review of the 30% rating assigned to
 his service-connected psychiatric disorder. A veteran’s
 overall claim for benefits comprises multiple separate ele-
 ments, and the agency’s “first decision regarding a claim
 for benefits might not resolve, or even address, all neces-
 sary elements of the application for benefits.” See Gran-
 tham v. Brown, 

, 1158 (Fed. Cir. 1997). In
 Grantham, we held that a NOD appealing “the logically up-
 stream element of service-connectedness” from an initial
 RO decision “[cannot] concern the logically down-stream el-
 ement of compensation level,” which was addressed, for the
 first time, in a subsequent RO decision.

 Here, with respect to Mr. Hinton’s PTSD claim, the August
 2013 NOD appealed only the denial of service connection
 for that claim. On the NOD form, under “Area of Disagree-
 ment,” Mr. Hinton checked only the box labeled “Service
 Connection.” R. 655–56. That form also included a box for
 appealing “Evaluation of Disability” and a space for indi-
 cating the “Percentage (%) Evaluation Sought,” which Mr.
 Hinton did not fill out.

initiated by
 the August 2013 NOD concerned only the issue of service-
 connectedness for a claimed psychiatric disorder and not
 the “logically down-stream” issue of rating level, which the
 RO ruled on, for the first time, in the September 2017 de-
 cision. We therefore conclude that the August 2013 NOD
 did not initiate appellate review of the 30% rating granted
 in the September 2017 decision.
    We also conclude that the November 2017 VA Form 9
 did not constitute a proper NOD for initiating and
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8                                             HINTON    v. WILKIE



 preserving an appeal. Since March 24, 2015, the VA’s reg-
 ulations have required all appeals to originate on a stand-
 ard form provided with the rating decision—in this case,
 VA Form 21-0958. 38 C.F.R. § 20.201(a)(1) (2015). 6 The
 VA “will not accept as a [NOD] an expression of dissatisfac-
 tion or disagreement with an adjudicative determination
 by the agency . . . and a desire to contest the result that is
 submitted in any other format, including on a different VA
 form.”

the extent Mr. Hinton challenges the validity of the
 standard form requirement, we note that the amended reg-
 ulations were upheld, over rulemaking challenge, in Veter-
 ans Justice Group, LLC v. Sec’y of Veterans Affairs, 

(Fed. Cir. 2016). There, we held that the VA nei-
 ther exceeded its authority nor acted arbitrarily by requir-
 ing NODs to be completed on standard forms—a
 requirement we found to be rationally related to the effi-
 cient adjudication of veterans’ appeals.

      As with appeals, the amended regulations also require
 new claims to be initiated on standard forms. See

(explaining that the prior “informal claim” frame-
 work was replaced by the “intent to file a claim” frame-
 work, which requires a claimant to perfect a new claim by
 filing a “standard application form” within one year), 1350–
 52 (upholding the validity of the “intent to file a claim”
 framework); see also 38 C.F.R. § 3.155(b). Recently, we
 have denied benefits under the “intent to file a claim”
 framework for failure to timely file a formal claim using the
 standard application form. See Merritt v. Wilkie, No. 2019-
 1095, 

, at *5 (Fed. Cir. July 17, 2020) (dis-
 missing appeal as moot because claimant “did not preserve
 her claim for accrued benefits by filing a formal claim
 within [the relevant time limit]”). Likewise, here, the
 amended regulations require us to conclude that an appeal


     6   Now codified at 38 C.F.R. § 20.202(d).
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 HINTON   v. WILKIE                                          9



 has not been properly initiated absent timely filing of the
 prescribed standard form.
     The amended regulations were in force during the one-
 year period for initiating appeal of the September 2017 rat-
 ing decision. That rating decision enclosed a copy of VA
 Form 21-0958 and expressly instructed Mr. Hinton that he
 “must complete and return to [the VA] the enclosed VA
 Form 21-0958 . . . in order to initiate [his] appeal” within
 one year. R. 90. In addition, Mr. Hinton was advised by
 both the Board and the Chairman of the Board, prior to the
 expiration of that one-year deadline, that he must submit
 VA Form 21-0958 to properly initiate an appeal of the 30%
 disability rating. Yet Mr. Hinton did not do so. Given the
 absence of a timely filed VA Form 21-0958, we affirm the
 Veterans Court’s decision not to review the September
 2017 rating decision because that decision was never
 properly appealed to the Board.
          II. November 2015 Medical Examination
      Mr. Hinton also challenges the sufficiency of the No-
 vember 2015 medical examination diagnosing him with
 other specified trauma- and stressor-related disorder. Spe-
 cifically, Mr. Hinton argues that the November 2015 exam-
 ination is inadequate because it “does not contain sufficient
 detail” and conflicts with an October 2014 mental health
 progress report diagnosing him with PTSD. See Appel-
 lant’s Reply Br. 7; Appellant’s Br. 4. The sufficiency of a
 medical opinion is a question of fact beyond our jurisdic-
 tion. See Prinkey v. Shinseki, 

, 1383 (Fed.
 Cir. 2013). Because we lack jurisdiction over this part of
 Mr. Hinton’s appeal, we are compelled to dismiss it.
     To the extent Mr. Hinton argues that the Board inap-
 propriately credited or weighed evidence from the various
 medical examinations of record, those are likewise factual
 issues over which this court lacks jurisdiction. King v.
 Shinseki, 

, 1346 (Fed. Cir. 2012) (“The eval-
 uation and weighing of evidence and the drawing of
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 10                                          HINTON   v. WILKIE



 appropriate inferences from it are factual determinations
 committed to the discretion of the fact-finder.”) (internal
 quotations and citation omitted). Accordingly, we dismiss
 Mr. Hinton’s appeal regarding those issues.
                         CONCLUSION
     We have considered Mr. Hinton’s remaining argu-
 ments but find them to be unpersuasive or beyond our ju-
 risdiction to review. For the reasons above, we affirm in
 part the Veterans Court’s decision and dismiss in part the
 appeal.
      AFFIRMED-IN-PART AND DISMISSED-IN-PART
                            COSTS
       No costs.