Full Opinion

Case: 25-1524 Document: 54 Page: 1 Filed: 11/12/2026 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ RICHARD L. DRAKE, Claimant-Appellant v. DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2025-1524 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 23-770, Judge Joseph L. Toth. ______________________ Decided: November 12, 2026 ______________________ ADAM STEINMETZ, Desmarais LLP, Washington, DC, argued for claimant-appellant. Also represented by THOMAS DERBISH, JAMIE DOHOPOLSKI, REBECCA LINDHORST, JUSTIN P.D. WILCOX; AARON MOSHIASHWILI, Rockville, MD. MATTHEW JUDE CARHART, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent-appellee. Also represented by ELIZABETH MARIE HOSFORD, PATRICIA Case: 25-1524 Document: 54 Page: 2 Filed: 11/12/2026 2 DRAKE v. COLLINS M. MCCARTHY, BRETT SHUMATE; TYRONE COLLIER, BRIAN D. GRIFFIN, Office of General Counsel, United States De- partment of Veterans Affairs, Washington, DC. ______________________ Before PROST, TARANTO, and CHEN, Circuit Judges. PROST, Circuit Judge. Richard L. Drake appeals from a December 6, 2024 de- cision of the Court of Appeals for Veterans Claims (“Veter- ans Court”) affirming a Board of Veterans’ Appeals (“Board”) order that denied service connection for Mr. Drake’s bladder disability. Before the Veterans Court, Mr. Drake challenged the propriety of an examination or- dered by the Board, as well as the qualifications of the nurse practitioner who provided a medical opinion regard- ing service connection and that opinion’s reliability. The Veterans Court rejected Mr. Drake’s arguments and af- firmed the Board. We dismiss for lack of jurisdiction. BACKGROUND Mr. Drake served in the U.S. Army from 1965 to 1967. During his service in 1966, Mr. Drake underwent a fis- surectomy surgery that required the insertion of a catheter three separate times. J.A. 8–9. On the third catheteriza- tion, Mr. Drake reported that he experienced significant pain and injury. J.A. 8–9. However, Mr. Drake’s treatment records showed he was “healing nicely” and he was soon back to duty. J.A. 9. Mr. Drake separated from the Army the following year. J.A. 9. His separation exam report showed no relevant abnormalities, and he denied a history of “frequent or painful urination” and “kidney stone or blood in urine.” J.A. 1398. Mr. Drake subsequently under- went surgeries in 1972, 1993, and 2003 to alleviate adverse urinary symptoms he was experiencing. J.A. 9. In 2011, Mr. Drake filed a claim for service connection related to “bladder scar tissue with bladder strictures and voiding dysfunction secondary to catheter (1966).” Case: 25-1524 Document: 54 Page: 3 Filed: 11/12/2026 DRAKE v. COLLINS 3 J.A. 1474. The claim was initially denied but later reo- pened by the Board. J.A. 9. In September 2022, the Board remanded Mr. Drake’s claim to obtain an examination be- cause “there [wa]s evidence that the bladder disability may be related to service.” J.A. 162. As relevant to this appeal, the Board ordered the Department of Veterans Affairs (“VA”) to do the following: Schedule the Veteran for a VA genitourinary examination with a qualified examiner to as- sist in determining the nature and likely eti- ology of a current bladder disability. All appropriate tests, studies, and consultations should be accomplished, and all clinical find- ings should be reported in detail. . . . Provide an opinion as to whether any current bladder disability is related to the July 1966 fissurectomy surgery the Veteran underwent during service, which required that he be catheterized on several occasions because he was not voiding following the surgery. Please explain upon what facts, medical principles, and/or medical literature the opinion is based. J.A. 162, 172. Mr. Drake received an examination in Octo- ber 2022, which included a meeting with a nurse practi- tioner and urinalysis testing. J.A. 133–37 (exam report); J.A. 131 (urinalysis report). The nurse practitioner also prepared an opinion regarding service connection. J.A. 138–42 (opinion). The nurse practitioner concluded that Mr. Drake’s “bladder condition is likely secondary to scarring related to recurrent prostatitis and [urinary tract infections],” and that the medical records were insufficient to suggest that his condition resulted from the 1966 cathe- terization. J.A. 140. After reviewing all of the evidence, the Board concluded that “there is no competent evidence of a nexus between the bladder disability and service to Case: 25-1524 Document: 54 Page: 4 Filed: 11/12/2026 4 DRAKE v. COLLINS weigh against the [nurse practitioner’s] opinion.” J.A. 1494. Mr. Drake appealed the Board’s finding of no service connection to the Veterans Court, arguing in relevant part that the Board erred “when it ordered an unnecessary med- ical examination for the purpose of developing negative ev- idence,” J.A. 1522, and when “it relied on the [nurse practitioner’s] medical report which lacked medical reason- ing,” J.A. 1526. The Veterans Court rejected Mr. Drake’s arguments. First, it determined that the Board did not or- der the examination for an improper purpose, but rather because, “at the time the Board ordered the 2022 exam, there was insufficient evidence as to nexus and, thus, in- sufficient evidence to decide the claim.” J.A. 6. Second, it determined that, while Mr. Drake “disagrees with [the nurse practitioner’s] findings,” she “clearly provided a ra- tionale for her opinion based on the entire medical history that informed the Board of the issues at hand.” J.A. 7. Mr. Drake sought reconsideration, arguing that the Veterans Court misunderstood his positions and that he re- ally was leveling the following challenges: (1) “because the examiner did not make a decision based on the medical his- tory, but rather made a decision based on the facts as in- correctly presented by the Board, the exam was inadequate”; (2) “the examination was not supported by medical reasoning”; (3) the Board failed to “explain why it was ordering a VA examination”; and (4) the Board erred in its instructions to the examiner. J.A. 1604–05 (cleaned up). The Veterans Court granted partial reconsideration and issued a new decision that “expand[ed] upon and clar- ifie[d]” its holding “as to the Board’s decision to obtain a 2022 VA exam,” but it otherwise rejected Mr. Drake’s ar- guments. J.A. 8. Mr. Drake timely appealed to this court. DISCUSSION On appeal, Mr. Drake primarily contends that “the Veterans Court, the Board, and the VA failed to distinguish Case: 25-1524 Document: 54 Page: 5 Filed: 11/12/2026 DRAKE v. COLLINS 5 between ‘providing a medical examination’ and ‘obtaining a medical opinion’ [in 38 U.S.C. § 5103A(d)(1)] as two dif- ferent options in the VA’s statutory duty to assist.” Appel- lant’s Br. 31. However, Mr. Drake did not raise this statutory misinterpretation argument to the Veterans Court, and we thus find it forfeited. Further, even if we addressed this new argument, we lack jurisdiction to re- solve the dispute, as any implicit statutory interpretation by the Veterans Court had no impact on the outcome of this case. I To assess whether an argument is forfeited, we con- sider whether the Veterans Court “[was] fairly put on no- tice as to the substance of the issue.” Emenaker v. Peake, 551 F.3d 1332, 1337 (Fed. Cir. 2008) (quoting Nelson v. Ad- ams USA, Inc., 529 U.S. 460, 469 (2000)). Mr. Drake con- tends that his statutory misinterpretation argument was preserved below based on a single footnote in his briefing to the Veterans Court. Appellant’s Br. 55 (citing J.A. 1524 n.12). The footnote reads: It is not clear why the Judge ordered an ex- amination rather than a supplemental opin- ion. No meaningful examination is described in the examiner’s records and Mr. Drake re- ports that none was performed. Had the Judge merely requested a supplemental opin- ion, it would have presumably gone to a urol- ogist – an expert – rather than a nurse practitioner, who returned a legally-insuffi- cient medical opinion. J.A. 1524 n.12. First, “arguments raised in footnotes are not preserved.” SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (collecting cases). Sec- ond, at no point does this footnote or the surrounding dis- cussion fairly put the Veterans Court on notice of Case: 25-1524 Document: 54 Page: 6 Filed: 11/12/2026 6 DRAKE v. COLLINS Mr. Drake’s present argument that the Board misinter- preted 38 U.S.C. § 5103A(d)(1) by “fail[ing] to distinguish between ‘providing a medical examination’ and ‘obtaining a medical opinion.’” Appellant’s Br. 31. Appearing to recognize this issue, Mr. Drake offers the alternative position that, even if his statutory misinterpre- tation argument was not raised below, we should still con- sider it because that issue “prejudices not only Mr. Drake but also veterans more generally” and “implicates the VA’s approach to finding and appointing medical examiners.” Appellant’s Br. 58–59. Mr. Drake’s reasoning is unpersua- sive. Indeed, if it were true that this is “a widespread issue that affects many veterans” as Mr. Drake claims, Reply Br. 11, then this court can expect to see the issue again soon in the correct procedural posture and with the benefit of the Board’s and Veterans Court’s informed assessment of the issue. This, however, is not such a case. II Even if we considered Mr. Drake’s forfeited argument, we would lack jurisdiction to resolve the issue raised. To “address a legal question presented to us on appeal,” the Veterans Court “must have made a determination on the legal issue presented to us by the appellant, either making a ‘decision’ on a ‘rule of law’ or ‘rel[ying] on’ a challenged statute or regulation or its interpretation.” Smith v. Col- lins, 130 F.4th 1337, 1343 (Fed. Cir. 2025) (alteration in original) (quoting 38 U.S.C. § 7292(a)). Such a determina- tion “might be express or, instead, might be implicit in the sense that the Veterans Court’s result might be altered by adopting the legal position pressed by appellant to this court.” Id. Here, Mr. Drake contends that the Veterans Court “im- plicitly misinterpreted the statutory duty to assist by fail- ing to recognize the two distinct options set forth in § 5103A(d)(1)—‘providing a medical examination’ or ‘ob- Case: 25-1524 Document: 54 Page: 7 Filed: 11/12/2026 DRAKE v. COLLINS 7 taining a medical opinion.’” Reply Br. 13. Mr. Drake ar- gues that “the Veterans Court’s misinterpretation resulted in a failure to recognize that the statute requires the VA to choose the option that is most likely to actually assist the veteran in any given case.” Id. at 14. However, even if we accept that as true, that interpretation has no relevance here because Mr. Drake received both an examination and an opinion. J.A. 133–37 (exam report); J.A. 131 (urinalysis report); J.A. 138–42 (opinion); Oral Arg. at 23:46–24:18 (counsel for Mr. Drake acknowledging that Mr. Drake re- ceived both an examination and opinion). 1 Thus, even if the Veterans Court did implicitly misinterpret 38 U.S.C. § 5103A(d)(1) by “fail[ing] to recognize that the statute re- quires the VA to choose the option most likely to assist the veteran,” Reply Br. 14, that interpretation would not alter the court’s decision. Therefore, we lack jurisdiction to re- solve the dispute. See Smith, 130 F.4th at 1343–44. Finally, to the extent that Mr. Drake has renewed on appeal his challenges made before the Veterans Court re- garding the sufficiency of the examination and opinion or the qualifications of the nurse practitioner, 2 we also lack 1 No. 25-1524, https://www.cafc.uscourts.gov/oral- arguments/25-1524_10082026.mp3. 2 During oral argument, counsel for Mr. Drake con- tended that his client was harmed not from receiving both an examination and an opinion, but rather because “no con- sideration was given to whether or not [the nurse practi- tioner] was the right person to help him, whether or not this was the right type of exam, whether or not this was the right type of opinion to actually help him substantiate his claim” and because in this case it “needed to go to a urologist.” Oral Arg. at 23:46–24:18; see also, e.g., Appel- lant’s Br. 50 (arguing that “the VA should have . . . ap- pointed an appropriate medical specialist in the field of urology”); id. at 41–48 (leveling challenges against the suf- ficiency of the examination and opinion). Case: 25-1524 Document: 54 Page: 8 Filed: 11/12/2026 8 DRAKE v. COLLINS jurisdiction over such issues. See, e.g., Prinkey v. Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013) (“[T]he sufficiency of a medical opinion is a matter beyond our jurisdictional reach, because the underlying question is one of fact.”); Washington v. Shinseki, 452 F. App’x 983, 985 (Fed. Cir. 2011) (nonprecedential) (“The adequacy of a medical exam- ination is a question of fact, as is compliance with the duty to assist.”); Parks v. Shinseki, 716 F.3d 581, 585–86 (Fed. Cir. 2013) (holding that appellant waived his chal- lenge to the competency of a nurse practitioner where, as here, appellant failed to raise the issue “until his appeal at the Veterans Court”). Indeed, Mr. Drake concedes that we lack jurisdiction to review such issues. See, e.g., Reply Br. 15 (“Mr. Drake does not dispute that this Court would not have jurisdiction to consider arguments about whether the VA fulfilled its duty to assist, whether the nurse prac- titioner in this case was qualified, whether any examina- tion or opinion was adequate, or whether the Board improperly weighed evidence.”); Oral Arg. at 3:51–59 (counsel for Mr. Drake acknowledging that “this court ab- solutely does not have the jurisdiction to entertain whether or not the examination was adequate or whether or not the examiner was qualified”). In short, all paths lead to the same conclusion—we lack jurisdiction to resolve the disputes raised by Mr. Drake. CONCLUSION Because we would lack jurisdiction to resolve Mr. Drake’s primary argument even if it was preserved, and because Mr. Drake’s other arguments also lie outside our jurisdiction, we must dismiss. DISMISSED COSTS No costs.