Case: 21-1632 Document: 23 Page: 1 Filed: 01/20/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEONARD D. JOHNSON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1632
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6963, Senior Judge Mary J.
Schoelen.
______________________
Decided: January 20, 2022
______________________
LEONARD D. JOHNSON, Las Vegas, NV, pro se.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, ROBERT EDWARD
KIRSCHMAN, JR.; Y. KEN LEE, DEREK SCADDEN, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 21-1632 Document: 23 Page: 2 Filed: 01/20/2022
2 JOHNSON v. MCDONOUGH
______________________
Before LOURIE, CHEN, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
Leonard D. Johnson appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”). Johnson v. Wilkie, No. 19-6963,
2020
WL 5414588 (Sept. 10, 2020) (“Veterans Court Decision”).
The Veterans Court affirmed the decision of the Board of
Veterans’ Appeals (“the Board”), which held that the De-
partment of Veterans Affairs (“VA”) properly recouped spe-
cial separation benefits (“SSB”) by withholding disability
compensation payments, denied entitlement to revision of
rating decisions on the basis of clear and unmistakable er-
ror (“CUE”), and denied entitlement to an effective date
earlier than May 7, 2012, for the grant of service connection
for bilateral knee sprains. For the reasons provided below,
we affirm the Veterans Court’s decision with respect to re-
coupment of SSB and we dismiss Johnson’s appeal with re-
spect to the other issues.
BACKGROUND
Johnson served on active duty in the U.S. Army from
April 1985 until March 1993. According to Johnson’s Cer-
tificate of Release or Discharge from Active Duty
(DD Form 214), Johnson was honorably discharged as part
of an “Early Release Program–SSB.” See Appx. 38. Upon
his discharge, he received an SSB payment of $17,782.92.
Id.
On March 11, 1993, the VA regional office in Muskogee,
Oklahoma (“the Muskogee RO”) received Johnson’s sub-
mission of a Disabled Veterans Application for Vocational
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JOHNSON v. MCDONOUGH 3
Rehabilitation (VA Form 28-1900). Appx. 39. 1 In the sec-
tion of the form entitled “Nature of Disability,” Johnson
wrote “Bad Knees, Reoccurring Rash.”
Id. He also stated
on the form that he had not previously applied for VA ben-
efits.
Id.
On March 12, 1993, the Muskogee RO issued a rating
decision denying vocational rehabilitation benefits.
Appx. 41. In the narrative section of the decision, VA
stated that Johnson “is not shown to be entitled to voca-
tional rehabilitation as his disability does not meet the
minimal 20 percent evaluation.”
Id. It further stated that
Johnson “would be service connected only for skin rash,”
which “will be noncompensable in nature only.”
Id. As for
Johnson’s bad knees, VA determined that “[s]ervice connec-
tion cannot be established for knee pain in the absence of
x-ray evidence showing degenerative changes or service
medical records showing any instability.”
Id. Johnson did
not appeal from the March 1993 rating decision.
Fourteen years later, in June 2007, Johnson filed a
claim for service connection for problems with his knees,
headaches, reoccurring kidney stones, foot arthritis, and
prostate problems. See Veterans Court Decision,
2020 WL
5414588, at *2. VA issued a rating decision in June 2008
denying Johnson’s claims.
Id. Johnson did not appeal from
the June 2008 rating decision.
Id.
On May 7, 2012, the RO in Reno, Nevada (“the Reno
RO”) received Johnson’s submission of a Statement in Sup-
port of Claim (VA Form 21-4138). Appx. 43. In the docu-
ment, which Johnson called a “Veteran Claim to Reopen,”
Johnson alleged CUE in the March 1993 and June 2008
rating decisions on the basis of VA’s incorrect application
1 Although the certifications on the form suggest
that Johnson signed it on March 25, 1993, the VA’s date
stamp indicates that it was received on March 11, 1993.
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4 JOHNSON v. MCDONOUGH
of statutory and regulatory provisions.
Id. Among other
allegations, Johnson asserted that VA erred in denying ser-
vice connection for his persistent rash and knee pain, and
that he was entitled to presumptive service connection
based on
38 C.F.R. § 3.303(b). Appx. 43–44.
On October 8, 2013, the Reno RO issued a rating deci-
sion regarding Johnson’s May 7, 2012 submission.
Appx. 49. The Reno RO granted service connection for
Johnson’s right and left knee sprains, each with a 10% dis-
ability rating effective May 7, 2012. Appx. 50. The Reno
RO also notified Johnson that he had been paid SSB in the
amount of $17,782.92, and that VA was required to with-
hold his disability compensation until the SSB payment
was recouped. See Veterans Court Decision,
2020 WL
5414588, at *2.
Johnson filed a Notice of Disagreement and appealed
the October 2013 rating decision to the Board. On Au-
gust 6, 2019, the Board issued a decision on Johnson’s ap-
peal. Appx. 16–35. In relevant part, the Board denied
Johnson’s appeal regarding recoupment of the SSB pay-
ment on the basis that the withholding of his benefits was
proper under
10 U.S.C. §§ 1174, 1212 and
38 C.F.R.
§ 3.700. See Appx. 16, 19. The Board also denied entitle-
ment to revision of the March 1993 and June 2008 rating
decisions on the basis of CUE, and the Board denied enti-
tlement to an effective date earlier than May 7, 2012, for
the grant of service connection for Johnson’s knee sprains.
Appx. 16.
Johnson appealed the Board’s decision to the Veterans
Court. After considering each of Johnson’s arguments, the
court affirmed the Board’s decision.
First, regarding the recoupment of SSB, the court con-
cluded that, “even when liberally construing the pro se ap-
pellant’s briefs,” Johnson “has failed to meet his burden to
show how the statute governing recoupment of SSB was
misapplied to his case.” Veterans Court Decision, 2020 WL
Case: 21-1632 Document: 23 Page: 5 Filed: 01/20/2022
JOHNSON v. MCDONOUGH 5
5414588, at *3. The court found that, although Johnson
asserted that his active duty service precludes VA from
withholding his disability compensation, beyond that “bare
assertion” Johnson failed to provide “any reasoning for how
the statute was misapplied.”
Id.
Next, the Veterans Court turned to Johnson’s allega-
tions of CUE in the 1993 rating decision. Although the
court found that the Board erred by not finding that John-
son had evinced an intent to apply for service-connected
benefits in his March 1993 application, the court concluded
that “remand for the Board to rectify its inadequate rea-
sons or bases regarding the knee and skin claims is inap-
propriate in this instance.” Id. at *4. The court reasoned
that “any claim for knee conditions pending and unadjudi-
cated after the March 1993 RO decision was finally decided
by the June 2008 RO decision denying a claim for the same
knee conditions.” Id. at *5. Moreover, the court concluded
that “even if knee and skin conditions were raised in [John-
son’s] 1993 vocational rehabilitation application, [Johnson]
has not met his burden to show that any error on the
Board’s part was prejudicial.” Id. The court determined
that Johnson failed to demonstrate that “had the RO adju-
dicated the [knee and skin] claims [in the 1993 rating deci-
sion], the outcome would have been manifestly different.”
Id. (citing Russell v. Principi,
3 Vet. App. 310, 313–14
(1992)). The court thus concluded based on the Board’s fac-
tual findings that “even if the [knee and skin] claims had
been pending, it is not undebatable that service connection
for skin and knee conditions would have been awarded as
of the March 1993 decision.”
Id. (citations omitted).
The Veterans Court then turned to Johnson’s allega-
tions of CUE in the June 2008 rating decision. The court
noted that Johnson was essentially re-raising the same al-
legations of CUE that he had previously raised at the
Board, namely, that VA failed to conduct examinations,
misapplied regulations relating to a presumption of service
connection, and failed to consider an in-service hematology
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6 JOHNSON v. MCDONOUGH
report. Id. at *6. Regarding the allegation that VA failed
to conduct examinations, the court found that the Board
had correctly concluded that “a breach of the duty to assist
cannot constitute CUE.” Id. (citing Cook v. Principi,
318
F.3d 1334, 1345–47 (Fed. Cir. 2002)). For the other allega-
tions of error, the Court agreed with the Board’s explana-
tion that Johnson “d[id] not indicate how the RO failed to
apply the identified laws,” and that Johnson’s allegations
were “at best, a disagreement with how the RO weighed
the evidence,” which cannot constitute CUE.
Id.
The Veterans Court finally turned to Johnson’s claim
that he was entitled to an earlier effective date than May
7, 2012, for the grant of service connection for his knee
sprains. The court began by quoting
38 U.S.C. § 5110(a),
which provides the general rule for determining effective
dates. Id. at *7. After noting that the Board’s determina-
tion of an effective date is a finding of fact, id. (citing Han-
son v. Brown,
9 Vet. App. 29, 32 (1996)), the court cited the
Board’s finding that any and all claims for Johnson’s knee
sprains became final when Johnson failed to appeal the
June 2008 rating decision.
Id. As the court held, “the
Board correctly concluded that under such circumstances
the effective date of the award of service connection cannot
be earlier than the subsequent request to reopen.”
Id. (cit-
ing
38 C.F.R. §§ 3.400(r), 3.400(q)(2); Sears v. Principi,
16
Vet. App. 244, 247 (2002), aff’d,
349 F.3d 1326 (Fed. Cir.
2003)). The court thus concluded that the Board did not
err in its determination that “the correct effective date for
the award of service connection was the date of the May
2012 request to reopen the previously denied knee claim.”
Id. at *7.
Johnson appealed from the Veterans Court’s affir-
mance of the Board’s decision.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki,
618 F.3d 1333, 1336
Case: 21-1632 Document: 23 Page: 7 Filed: 01/20/2022
JOHNSON v. MCDONOUGH 7
(Fed. Cir. 2010). We have jurisdiction to review and decide
challenges to the validity of statutes or regulations, or to
interpretations of statutory and regulatory provisions to
the extent such provisions are necessary to a decision.
38 U.S.C. § 7292(c). We lack jurisdiction to review chal-
lenges to factual determinations or challenges to the appli-
cation of a law or regulation to the facts of a particular case.
38 U.S.C. § 7292(d). And, while we liberally construe pro
se pleadings in favor of a pro se veteran, the veteran is still
required to establish jurisdiction. See Reynolds v. Army &
Air Force Exch. Serv.,
846 F.2d 746, 748 (Fed. Cir. 1988).
Interpreting Johnson’s briefs liberally, he appears to
raise a statutory interpretation question with respect to
VA’s recoupment of SSB payments. As a general rule, VA
is required by statute and regulation to withhold disability
compensation until an SSB payment is recouped. See
10
U.S.C. § 1174(h)(2);
38 C.F.R. § 3.700(a)(5). But Johnson
focuses on an exception in the statute for situations when
“the disability which is the basis for that disability compen-
sation was incurred or aggravated during a later period of
active duty.”
10 U.S.C. § 1174(h)(2).
Johnson appears to contend that the exception in
§ 1174(h)(2) could be broad enough to include any situation
in which a veteran receives SSB and then is later deter-
mined to have service connection for a disability. But to
the extent that is Johnson’s argument, his proposed inter-
pretation of the statute is unequivocally incorrect. The
statutory language is clear that the exception applies only
when the disability itself was incurred during a “later pe-
riod of active duty.” Id. The exception does not apply when
a veteran’s disability was incurred during the earlier pe-
riod of active duty (i.e., before receipt of SSB), even if the
disability was not diagnosed until later.
The Veterans Court’s interpretation of the statute was
correct, as was its application of the statute to Johnson’s
case. Johnson served one period of active duty that ended
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8 JOHNSON v. MCDONOUGH
in March 1993, at which point he was honorably discharged
and received an SSB payment of $17,782.92. Johnson did
not serve a “later period of active duty,” and thus he does
not fall within any exception to the general rule that VA
must withhold disability compensation to recoup his SSB
payment.
Johnson’s remaining arguments pertain to alleged
CUE in the rating decisions and the effective date for the
grant of service connection for his knee sprains. But none
of his arguments raises a reviewable issue. Most of his ar-
guments challenge alleged evidentiary contradictions and
weighing of facts, which are clearly unreviewable.
38 U.S.C. § 7292(d). To be sure, some of Johnson’s argu-
ments appear to be legal in nature; for example, Johnson
challenges the Veterans Court’s decision that the June
2008 rating decision adjudicated all pending claims and
thus rendered a remand unnecessary to rectify harmless
errors in the March 1993 rating decision. But even that
legal argument challenges the Veterans Court’s applica-
tion of law (i.e., the law of harmless error) to the facts of
this specific case, and it thus does not fall within our juris-
diction to review.
Id.
Finally, it bears noting that Johnson asserts in his brief
that the Veterans Court decided constitutional issues over
which we would have jurisdiction under
38 U.S.C. § 7292.
However, Johnson fails to cite, or even mention, any con-
stitutional provision that might be implicated by the Vet-
erans Court’s decision. Therefore, his bare assertion that
constitutional issues are at stake does not create jurisdic-
tion in this case. See Helfer v. West,
174 F.3d 1332, 1335
(Fed. Cir. 1999) (“[Appellant’s] characterization of [a] ques-
tion as constitutional in nature does not confer upon us ju-
risdiction that we otherwise lack.”).
CONCLUSION
We have considered Johnson’s remaining arguments
but we find them unpersuasive. Accordingly, we affirm the
Case: 21-1632 Document: 23 Page: 9 Filed: 01/20/2022
JOHNSON v. MCDONOUGH 9
decision of the Veterans Court with respect to the recoup-
ment of SSB and we dismiss Johnson’s appeal with respect
to his allegations of CUE and entitlement to an earlier ef-
fective date.
AFFIRMED-IN-PART, DISMISSED-IN-PART
COSTS
No costs.
