Evans v. Collins

Case: 25-1403 Document: 64 Page: 1 Filed: 11/09/2026 United States Court of Appeals for the Federal Circuit ______________________ MARY L. EVANS, Claimant-Appellant v. DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2025-1403 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 23-7133, Judge Joseph L. Falvey, Jr. ______________________ Decided: November 9, 2026 ______________________ SEAN P. GRIFFIN, West & Dunn, LLC, Waunakee, WI, argued for claimant-appellant. Also represented by TRAVIS JAMES WEST. MEREDYTH COHEN HAVASY, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for respondent-appellee. Also represented by MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY, KRISTIN ELAINE OLSON, BRETT SHUMATE; BRIAN D. GRIFFIN, DAVID HARMANTAS, Office of General Case: 25-1403 Document: 64 Page: 2 Filed: 11/09/2026 2 EVANS v. COLLINS Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________ Before MOORE, Chief Judge, PROST and TARANTO, Circuit Judges. PROST, Circuit Judge. Mary L. Evans appeals from the Court of Appeals for Veterans Claims’ (“Veterans Court”) denial of her motion for reconsideration of an October 25, 2024 Veterans Court decision. That October decision reversed the Board of Vet- erans’ Appeals’ (“Board”) denial of service connection for Ms. Evans’s husband’s Type II diabetes mellitus claim be- cause the Veterans Court determined the record supported his service in Vietnam. Ms. Evans asked the Veterans Court to reconsider its October decision to expand that de- cision’s scope to include remand for an earlier effective date for a separate multiple myeloma claim based on the same established service in Vietnam. The Veterans Court found that argument waived as it was absent from Ms. Evans’s original briefing. We dismiss for lack of jurisdiction. BACKGROUND Wilbert Evans served in the U.S. Marine Corps from March 1960 to March 1964. J.A. 78. Mr. Evans was sta- tioned in Japan, where, in his role as a postal clerk, he con- tends he was required to fly to Vietnam to deliver mail approximately twice a week. J.A. 79–81, 84. In 2004, Mr. Evans filed claims for service-connected disability benefits related to diagnoses for multiple mye- loma and diabetes, based in part on alleged herbicide expo- sure in Vietnam. Those claims were denied by the Department of Veterans Affairs (“VA”) regional office the same year for lack of service connection. Mr. Evans later sought to reopen these claims and brought additional claims for residuals of head trauma and bilateral hearing Case: 25-1403 Document: 64 Page: 3 Filed: 11/09/2026 EVANS v. COLLINS 3 loss, all of which were again denied by the VA regional of- fice, including most recently in September 2022. Ms. Ev- ans, Mr. Evans’s surviving spouse, appealed that September 2022 denial to the Board. On July 27, 2023, the Board found that: (1) Mr. Evans was entitled to service con- nection for multiple myeloma only due to exposure to con- taminated water at Camp Lejeune (in North Carolina); and (2) Mr. Evans was not entitled to service connection for Type II diabetes mellitus, residuals of head trauma, and bilateral hearing loss. J.A. 11–21. Ms. Evans appealed the Board’s decision. J.A. 22–43. In her opening brief to the Veterans Court, Ms. Evans stated that she was “appeal[ing] a July 27, 2023[] decision of the Board denying the claim of her deceased husband . . . for Type II diabetes mellitus.” J.A. 27. Ms. Evans argued that the Board erred in denying service connection for Mr. Evans’s Type II diabetes mellitus claim because the Board erroneously determined that no evidence corrobo- rated his service in Vietnam. See, e.g., J.A. 34–36. Ms. Ev- ans’s briefing before the Veterans Court did not state that she was also appealing the effective date resulting from the Board’s finding of service connection for multiple myeloma (a finding based on the Camp Lejeune exposure). On October 25, 2024, the Veterans Court ruled in favor of Ms. Evans and reversed the Board’s denial of service con- nection for the Type II diabetes mellitus claim. J.A. 3–7. In doing so, the Veterans Court characterized the issue be- fore it as an appeal of the Board’s “decision that denied ser- vice connection for type II diabetes mellitus.” J.A. 3. In a footnote, the Veterans Court noted that: (1) “[t]he Board granted service connection for multiple myeloma; this is a favorable finding that we do not disturb”; and (2) “[t]he Board also denied service connection for residuals of head trauma and for bilateral hearing loss,” but “Ms. Evans doesn’t raise any arguments about these issues, [so] we will dismiss this part of the appeal.” J.A. 3 n.1. Case: 25-1403 Document: 64 Page: 4 Filed: 11/09/2026 4 EVANS v. COLLINS Ms. Evans sought reconsideration, arguing that the Veterans Court’s “conclusion that the Board’s adjudication concerning the multiple myeloma condition should not be disturbed because it was favorable” was erroneous given that the “determination that [Mr.] Evans served in Vi- etnam, if applied to the claim for multiple myeloma, would result in an earlier effective date.” J.A. 73. On November 19, 2024, the Veterans Court denied Ms. Evans’s motion for reconsideration, explaining that she “never asked [the court] to set aside and remand the Board’s grant of service connection for myeloma.” J.A. 1–2. Rather, “[a]ll her arguments and her request for relief focus on diabetes.” J.A. 1 (noting that “Ms. Evans only mentions myeloma in her opening brief in the statement of the facts” and that “she doesn’t mention it at all in her reply brief”). Ultimately, the Veterans Court concluded that Ms. Evans’s arguments about the myeloma claim were waived. J.A. 2. 1 Ms. Evans timely appealed that decision. J.A. 10. DISCUSSION This court’s jurisdiction to review a decision of the Vet- erans Court is limited. We review “the validity of a decision of the [Veterans] 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 [Veterans] Court in making the decision.” 38 U.S.C. § 7292(a). Absent a constitutional challenge, this court may not “review (A) a challenge to a factual determination, 1 Although the Veterans Court and the parties refer to the issue as one of “waiver,” we believe “forfeiture” is more accurate. See In re Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 2020). In this case, it is a dis- tinction without a difference, so for the sake of consistency and simplicity we too discuss the issue in terms of “waiver.” Case: 25-1403 Document: 64 Page: 5 Filed: 11/09/2026 EVANS v. COLLINS 5 or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2). Ms. Evans contends that we have jurisdiction for two reasons: (1) “the Veterans Court concluded that it is pro- hibited by [statute] from disturbing a finding that the vet- eran’s condition is service-connected because that conclusion is favorable,” Appellant’s Br. 1; and (2) “the Vet- erans Court waiver determination was predicated upon a misinterpretation of law, rather than a factual finding,” Reply Br. 3. We disagree on both counts. First, Ms. Evans’s contention that the Veterans Court denied reconsideration based on a misinterpretation of the favorable-finding doctrine—stemming from 38 U.S.C. § 7261(a)(4) 2—is belied by the record. The Veterans Court based its denial of reconsideration on a finding of waiver, not on a determination that it lacked jurisdiction due to the favorable-finding doctrine. J.A. 1 (“Putting aside that the Board’s grant of benefit is still favorable, the problem is that Ms. Evans never asked us to set aside and remand the Board’s grant of service connection for myeloma.”). Indeed, the Veterans Court expressly held it was denying Ms. Ev- ans’s motion for reconsideration because “her arguments about myeloma [were] waived.” J.A. 2. 3 Even if the Veter- ans Court’s statement regarding the favorability of the 2 38 U.S.C. § 7261(a)(4) is the statutory provision that prevents the Veterans Court from reversing a Board fact finding unless it is “adverse to the claimant.” In addi- tion to this section, Ms. Evans also cites 38 U.S.C. § 7266(a), which relates to notice of appeal requirements for “adversely affected” persons. Appellant’s Br. 1, 12–13. 3 The Veterans Court further noted that, even if it reconsidered its decision, “the only real change would be to include myeloma more clearly in the list of claims that [it is] not addressing because Ms. Evans did not raise any ar- guments about them.” J.A. 2 n.1. Case: 25-1403 Document: 64 Page: 6 Filed: 11/09/2026 6 EVANS v. COLLINS Board’s myeloma finding could be read as setting forth an interpretation of 38 U.S.C. § 7261(a)(4), we cannot review that purported interpretation as it had no bearing on the court’s decision. 38 U.S.C. § 7292(a) (providing review of statutory interpretation by the Veterans Court only where that interpretation “was relied on by the [Veterans] Court in making the decision”); id. § 7292(c) (providing this court with jurisdiction to review challenges to interpretations of statutes only “to the extent presented and necessary to a decision”). Second, Ms. Evans’s contention that the Veterans Court’s waiver determination provides a basis for jurisdic- tion is similarly unconvincing. Reply Br. 3. Ms. Evans does not challenge the black-letter law that failure to raise an argument in an opening brief—or, in this case, in any brief—can constitute waiver of the argument. Compare Appellee’s Br. 8 (contending that Ms. Evans does not dis- pute this is the appropriate standard), with Reply Br. (not contesting this point); see also Carbino v. West, 168 F.3d 32, 34–35 (Fed. Cir. 1999) (recognizing the Veterans Court has the authority to consider untimely arguments waived). Ms. Evans’s own characterizations of the issue on ap- peal all but confirm that the present dispute involves, at most, the routine application of waiver law to the facts of this case. For instance, Ms. Evans at one point contends that the issue is “whether the Veterans Court correctly in- terpreted the scope of the issues raised in Ms. Evans’s ini- tial brief,” Reply Br. 2–3, and, at another point, “whether the Veterans Court erred in its application of the waiver doctrine,” Reply Br. 1. 4 However, under 38 U.S.C. 4 Although Ms. Evans also characterizes this appeal as involving “a legal interpretation” that falls within our jurisdiction, Reply Br. 2, that portrayal is unsupported and unpersuasive given her briefing’s focus on the Veterans Court’s application of established waiver law to these facts. Case: 25-1403 Document: 64 Page: 7 Filed: 11/09/2026 EVANS v. COLLINS 7 § 7292(d)(2), “we may not review a challenge to a factual determination or a challenge to a law or regulation as ap- plied to the facts of a particular case.” Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999). Notwithstanding the foregoing, Ms. Evans contends that “the Federal Circuit has previously affirmed that the appropriate application of waiver and forfeiture doctrine constitutes a question of law falling within this Court’s purview.” Reply Br. 3. In support of this assertion, Ms. Ev- ans originally cited “Magyar v. Principi, 349 F.3d 1329, 1332-33 (Fed. Cir. 2003)”—a case that does not exist. On September 7, 2026, counsel for Ms. Evans submitted a “cor- rected” reply brief, which replaced the Magyar case with a citation to “Sears v. Principi, 349 F.3d 1329, 1332-33 (Fed. Cir. 2003).” ECF No. 60 at 6; id. at 14 (notice of cor- rection). However, Sears never mentions the doctrines of waiver or forfeiture. On September 8, 2026, counsel for Ms. Evans was ordered to “be prepared to discuss the cita- tion to Magyar v. Principi (and counsel’s subsequent at- tempts to ‘correct’ the citation) at oral argument.” ECF No. 62 at 2. During oral argument, counsel for Ms. Evans was unable to answer how the nonexistent Magyar case ap- peared in the reply brief, why the irrelevant Sears case was substituted for it, or otherwise provide any case that sup- ported the proposition for which Magyar and Sears were cited. Oral Arg. at 10:28–13:40, No. 25-1403, https://www. cafc.uscourts.gov/oral-arguments/25-1403_09112026.mp3. Lawyers should be mindful that use of artificial intelli- gence or other tools that results in hallucinated citations appearing in briefs to this court could impact their contin- ued practice before the court. In reality, we have repeatedly held that review of waiver determinations by the Veterans Court lies outside the bounds of our narrow statutory jurisdiction. E.g., An- dre v. Principi, 301 F.3d 1354, 1362–64 (Fed. Cir. 2002) (“[W]e lack jurisdiction to consider [appellant’s] challenge to the [Veterans Court’s] abandonment ruling.”); Shaw v. Case: 25-1403 Document: 64 Page: 8 Filed: 11/09/2026 8 EVANS v. COLLINS Collins, No. 24-1070, 2025 WL 1692039, at *2 (Fed. Cir. June 17, 2025) (nonprecedential) (“[W]e lack jurisdiction to review [a forfeiture finding] because a finding of forfeiture is based on factual findings and the application of law to fact.”); Sharkozy v. Shinseki, 524 F. App’x 694, 697 (Fed. Cir. 2013) (nonprecedential) (“Finding a waiver in an appellant’s failure to raise an argument in its opening brief is not an issue that falls within this court’s jurisdiction [to review].”). We see no basis to depart from this well-estab- lished understanding of our jurisdiction; Ms. Evans cer- tainly provides us with none. 5 That is not to say that Ms. Evans is without recourse. As the government acknowledged, she can seek “reconsid- eration of the board decision under 38 C.F.R. § 20.1002 based on an obvious error of fact” or “request readjudica- tion [from the VA regional office] based on changed facts (that it has been legally determined that Mr. Evans served in Vietnam).” Appellee’s Br. 17; see also Oral Arg. at 18:31–19:04 (counsel for the government stating that “[Ms. Evans] could go back to the Board or [VA regional office], and, in all likelihood, the [earlier] effective date would be granted”). Counsel for Ms. Evans acknowledged these avenues for relief but argued that pursuing them may come with “delays and issues.” Oral Arg. at 9:21–52. Such concerns, whether valid or not, cannot vest this court with jurisdiction it otherwise lacks. CONCLUSION Because we lack jurisdiction, we must dismiss. 5 During oral argument, counsel for Ms. Evans con- ceded that “the Federal Circuit has ruled that the applica- tion of the doctrine of waiver to fact is not something within the court’s jurisdiction” and that “the issue of whether or not something was waived is certainly . . . something that is outside of this court’s review.” Oral Arg. at 19:37–20:06. Case: 25-1403 Document: 64 Page: 9 Filed: 11/09/2026 EVANS v. COLLINS 9 DISMISSED COSTS No costs.