United States Court of Appeals for the Federal Circuit ______________________

DAVID L. PICKETT, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2022-1057 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 20-196, Chief Judge Margaret C. Bartley. ______________________

Decided: April 6, 2023 ______________________

KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

ASHLEY AKERS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________ Case: 22-1057 Document: 38 Page: 2 Filed: 04/06/2023

2 PICKETT v. MCDONOUGH

Before STOLL, SCHALL, and CUNNINGHAM, Circuit Judges. STOLL, Circuit Judge. David L. Pickett appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court), which concluded that the Department of Veterans Affairs’ (VA) regional office (RO) complied with the require- ments of 38 C.F.R. § 3.156(b). As a result, Mr. Pickett’s failure to timely appeal certain RO decisions finalized a then-pending claim. The finalized claim could not thereaf- ter provide a basis for an earlier entitlement to total disa- bility rating based on individual unemployability (TDIU). Because the Veterans Court correctly interpreted § 3.156(b), we affirm the Veterans Court’s decision. BACKGROUND Mr. Pickett served in the United States Army from September 1969 to September 1971, including service in Vietnam. In April 2004, he filed a claim with the VA for service-connected compensation for a general anxiety dis- order, which he attributed to exposure to Agent Orange or other herbicides. J.A. 17–26. The VA eventually granted Mr. Pickett service-connected compensation for post-trau- matic stress disorder (PTSD) and coronary artery disease (CAD) effective April 2004. J.A. 51, 68. The VA first granted Mr. Pickett service connection for CAD in 2010, upon special review of his case as mandated by Nehmer v. United States Department of Veterans Af- fairs, 494 F.3d 846 (9th Cir. 2007). There, the Ninth Cir- cuit upheld an interpretation of a consent decree which requires the VA to readjudicate claims for newly recog- nized, presumptively service-connected conditions associ- ated with herbicide exposure. Id. at 851, 853–54 & n.4. The RO thus granted Mr. Pickett service-connection for CAD effective April 2004, the date his claim first refer- enced herbicide exposure. J.A. 68, 70. Case: 22-1057 Document: 38 Page: 3 Filed: 04/06/2023

PICKETT v. MCDONOUGH 3

Mr. Pickett appealed, seeking a higher rating for his service-connected CAD. J.A. 73–74. Within the timeframe to appeal, Mr. Pickett filed VA Form 21-8940, which is an application for TDIU. J.A. 89–90. Mr. Pickett’s 2011 VA Form 21-8940 lists CAD and PTSD as preventing him from “securing or following any substantially gainful occupa- tion” starting June 30, 2007, the date he last worked. J.A. 89 (boxes 6, 12–14). Relevant here are two subsequent RO decisions dated January 2013 and April 2014. The January 2013 RO decision lists the 2011 VA Form 21-8940 as evidence considered. J.A. 91 (fifth bullet point). In an attached sheet, the RO decision notes that “[e