Golemon v. McDonald , 641 F. App'x 961 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONALD E. GOLEMON,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7114
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-177, Judge Lawrence B. Hagel.
______________________
Decided: January 8, 2016
______________________
DONALD E. GOLEMON, Mobile, AL, pro se.
ADAM E. LYONS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., BRIAN A.
MIZOGUCHI; Y. KEN LEE, JONATHAN KRISCH, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
2 GOLEMON v. MCDONALD
Before REYNA, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
This case arises from a decision by the Department of
Veterans Affairs (VA) denying disability benefits to Don-
ald E. Golemon (Mr. Golemon) for three conditions:
(1) adenocarcinoma of the colon; (2) peripheral neuropa-
thy of the right and left upper extremity; and (3) multiple
myeloma. The Board of Veterans’ Appeals (Board) af-
firmed and the United States Court of Appeals for Veter-
ans Claims (Veterans Court) remanded-in-part and
affirmed-in-part. Specifically, the Veterans Court re-
manded Mr. Golemon’s claims for benefits relating to
colon cancer and peripheral neuropathy and affirmed the
denial of benefits for myeloma. Because Mr. Golemon’s
arguments are either without merit or will be addressed
in the partial remand to the Board, we affirm.
BACKGROUND
Mr. Golemon served on active duty in the United
States Army from January 1970 to July 1971. During his
service, Mr. Golemon sustained combat injuries for which
he was subsequently awarded the Purple Heart.
In June 2003, Mr. Golemon filed a claim seeking disa-
bility benefits for, among other things, peripheral neurop-
athy. He later filed an additional claim requesting
benefits for colon cancer. Then, in May 2008, he sought
benefits for multiple myeloma due to exposure to herbi-
cides. The VA denied benefits for these injuries. In a
June 4, 2013 decision, the Board affirmed (Board Deci-
sion). Thereafter, on August 17, 2013, Mr. Golemon
sought reconsideration of the Board’s decision. On Sep-
tember 26, 2013, the Board Deputy Vice Chairman issued
a letter denying Mr. Golemon’s request for reconsidera-
tion (Denial of Reconsideration).
GOLEMON v. MCDONALD 3
Mr. Golemon appealed to the Veterans Court, identi-
fying the September 26th Denial of Rehearing as the
Board decision from which he was appealing, rather than
the June 4th Board Decision. Because the Veterans Court
docketed the appeal as arising from the June 4th Board
Decision, Mr. Golemon sent a letter, dated January 13,
2015, requesting that the Veterans Court recognize the
September 26th Denial of Reconsideration decision as the
final Board decision from which he was appealing. The
Veterans Court does not appear to have addressed this
letter and, on May 4, 2015, issued a single-judge memo-
randum decision vacating and remanding the portion of
the Board’s decision relating to adenocarcinoma of the
colon and peripheral neuropathy of the upper extremities.
Specifically, the Veterans Court concluded that the Board
did not appropriately consider Mr. Golemon’s contention
that his neck injury was caused, at least in part, by the
injuries he sustained while in combat. The Veterans
Court affirmed the remainder of the Board’s decision,
including the Board’s determination that there was
insufficient evidence to support a diagnosis of multiple
myeloma.
In response to the single-judge decision, Mr. Golemon
filed several motions before the Veterans Court, raising
several arguments: (1) a motion for panel review of the
Veterans Court’s single-judge decision; (2) a motion to
correct the date of his combat entry used by the Veterans
Court; and (3) a motion to establish a veterans’ bill of
rights, benefiting all veterans. The Board granted panel
review, but declined to alter the May 4, 2015 decision.
The Veterans Court denied the remaining two motions.
Mr. Golemon then filed a motion seeking review by the
full Veterans Court. The Veterans Court denied this
motion because review was not “necessary to secure or
maintain uniformity of the Court’s decisions” and the
decision did not implicate “a question of exceptional
importance.” Golemon v. McDonald, No. 14-0177, 2015
4 GOLEMON v. MCDONALD
WL 4929692, at *1 (Vet. App. Aug. 19, 2015). According-
ly, the Veterans court entered judgment on August 19,
2015, and Mr. Golemon timely appealed to this court.
DISCUSSION
Our jurisdiction over appeals from the Veterans Court
is limited. Under 38 U.S.C. § 7292(a), we may review the
“validity of a decision of the [Veterans] Court on a rule of
law or any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual mat-
ter) that was relied on by the [Veterans] Court in making
the decision.” We review the Veterans Court’s interpreta-
tion of a statute de novo. Sursely v. Peake, 551 F.3d 1351,
1354 (Fed. Cir. 2009). We must also decide “all relevant
questions of law” and will “set aside any regulation or any
interpretation thereof (other than a determination as to a
factual matter)”—relied upon in the decision of the Veter-
ans Court—that we find “(A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (B) contrary to constitutional right, power, privilege,
or immunity; (C) in excess of statutory jurisdiction, au-
thority, or limitations, or in violation of a statutory right;
or (D) without observance of procedure required by law.”
38 U.S.C. § 7292(d)(1). We are not permitted, however, to
review “a challenge to a factual determination” or a
“challenge to a law or regulation as applied to the facts of
a particular case,” unless the appeal presents a constitu-
tional issue. §§ 7292(d)(2)(A)–(B). See Conway v. Princi-
pi, 353 F.3d 1369, 1372 (Fed. Cir. 2004).
Notably, Mr. Golemon does not assert that the Veter-
ans Court incorrectly affirmed the Board’s conclusion that
Mr. Golemon could not be diagnosed with multiple mye-
loma. Even if Mr. Golemon had raised such an argument,
we would lack jurisdiction to address such a factual
determination. Instead, Mr. Golemon objects to the
Veterans Court’s use of the June 4th Board Decision as
the decision for review, rather than the September 26th
GOLEMON v. MCDONALD 5
Denial of Reconsideration decision. Mr. Golemon also
requests that we correct the date of his combat injury
from June 2, 1971, to May 21, 1971.
I
The Veterans Court’s jurisdiction and scope of review
is governed by statute. See 38 U.S.C. § 7252. Thus,
whether the Veterans Court properly determined which of
the Board’s decisions was subject to its review relates to
the contours of the Veterans Court’s statutorily prescribed
jurisdiction. As a question of statutory interpretation,
this issue falls within our jurisdiction.
Congress provided that “[t]he Court of Appeals for
Veterans Claims shall have exclusive jurisdiction to
review decisions of the Board of Veterans’ Appeals.” 38
U.S.C. § 7252(a). Section 7103 addresses motions for
reconsideration and explains that “[t]he decision of the
Board . . . is final unless the Chairman [of the Board of
Veterans’ Appeals] orders reconsideration of the deci-
sion . . . .” 1 38 U.S.C. § 7103(a). The VA’s regulations
further explain that “[t]he Chairman will review the
sufficiency of the allegations set forth in the motion [for
reconsideration] and determine whether to deny or allow
the motion. 38 C.F.R. § 20.1001(c). Accordingly, under
the governing statutes and regulations, a decision deny-
1 The decision denying Mr. Golemon’s motion for
reconsideration was signed by David C. Sprinkler, Deputy
Vice Chairman of the Board. Mr. Golemon does not
challenge the authority of the deputy vice chairman to
issue such a decision. We nevertheless recognize that
such authority is consistent with the VA’s regulations.
See 38 C.F.R. § 20.102(a) (providing that the authority
exercised by the Chairman to decide requests for recon-
sideration “may also be exercised by the Vice Chairman of
the Board and by Deputy Vice Chairmen of the Board”).
6 GOLEMON v. MCDONALD
ing a motion for reconsideration is an action by the
Chairman, rather than by the Board.
The Government points to our decision in Mayer v.
Brown as establishing that actions by the Chairman, like
motions to reconsider, are not subject to Veterans Court
review, unless the motion to reconsider includes some
showing of new evidence or circumstances. 37 F.3d 618,
620 (Fed. Cir. 1994) (“An action by the Chairman is not a
decision of the board”), overruled in part on other grounds
by Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en
banc). Relevant here, Mayer made clear two things: (1)
the Veterans Court hears appeals from Board decisions;
and (2) an action by the Chairman denying reconsidera-
tion of a Board decision is not itself a Board decision. See
37 F.3d at 619–20. Thus, the Veterans Court, consistent
with the statute and Mayer, did not err by designating the
June 4th Board Decision as the decision on appeal rather
than the September 26th Denial of Reconsideration
decision by the Deputy Vice Chairman.
Mr. Golemon nevertheless asserts that 38 C.F.R.
§ 18b.73(b) instructs that his appeal to the Veterans
Court should have proceeded from the Denial of Reconsid-
eration. Section 18b.73(b) provides that after a hearing
and decision by an administrative law judge or after a
claimant files exceptions to that decision, “the reviewing
authority shall review the recommended or initial deci-
sion and shall issue a decision thereon, which shall be-
come the final decision of VA, and shall constitute ‘final
agency action’ within the meaning of 5 U.S.C. 704.” This
regulation relates only to hearings conducted in the
context of discrimination claims. See 38 C.F.R. § 18b.1
(“The rules of procedure in this part . . . govern the prac-
tice for hearings, decisions, and administrative review
conducted by the Department of Veterans Affairs pursu-
ant to Title VI of the Civil Rights Act of 1964 . . . .”).
Thus, section 18b.73(b) has no bearing on Mr. Golemon’s
appeal from a denial of disability benefits.
GOLEMON v. MCDONALD 7
Mr. Golemon also argues that the Veterans Court’s
course of action violates his rights secured by the Fifth
and Ninth Amendments to the United States Constitu-
tion. We understand Mr. Golemon to be arguing that by
designating the Board Decision as the decision on appeal,
the Veterans Court violated Mr. Golemon’s due process
rights. It appears that Mr. Golemon may be seeking
review of his request that the transcript from his hearing
before the Board be corrected to reflect the Board’s repre-
sentation that his claims for peripheral neuropathy of the
right upper extremity and the left upper extremity would
be “linked” and addressed “together as one ruling.”
Supplemental Appendix 57–58. He also may be asserting
that the Board represented to him that these neuropathy
claims would be linked with a purported claim relating to
a lower back injury. Mr. Golemon’s neuropathy claims
regarding his neck injury, however, were remanded back
to the Board by the Veterans Court for further proceed-
ings. See Golemon v. McDonald, No. 14-0177, 2015 WL
1966717, at *4–5 (Vet. App. May 4, 2015) (explaining that
38 U.S.C. § 1154(b) requires that the Board consider Mr.
Golemon’s evidence that he suffered combat-related neck
trauma that could have led to his peripheral neuropathy).
Namely, the Veterans Court directed the Board to “order
a new VA medical opinion and, following receipt of that
opinion, provide an adequate statement of reasons or
bases for its decision.” Id. at *5. In addition, the Veter-
ans Court expressly recognized that Mr. Golemon would
be “free to submit additional evidence and argument” on
remand. Id. (citing Kutscherousky v. West, 12 Vet. App.
369, 372–73 (1999) (per curiam order)). Thus, Mr. Go-
lemon will have the opportunity to raise his concerns
about these alleged statements by the Board on remand.
If his concerns are not adequately addressed during the
course of those proceedings, Mr. Golemon may then raise
the issue if he appeals the Board’s ultimate decision on
his claim for benefits for his peripheral neuropathy. We
8 GOLEMON v. MCDONALD
therefore conclude that due process does not require
remand or reversal.
For these reasons, we find no error in the Veterans
Court’s designation of the Board Decision as the decision
on appeal.
II
When Mr. Golemon was originally awarded his Pur-
ple Heart, the award stated that he suffered a combat
injury in Vietnam on May 21, 1971. However, his Purple
Heart was later amended to correct the spelling of his
name and his social security number. The re-issued
Purple Heart certificate identifies June 2, 1971, as the
date on which Mr. Golemon received his combat injury.
Mr. Golemon now requests that we correct this discrepan-
cy in the court records and conclude that the date of his
combat injury was the earlier date, May 21, 1971.
We lack jurisdiction to address the date on which he
was injured in combat. Determination of the date on
which Mr. Golemon was injured is a question of fact, not
within the jurisdiction of this court to review. 38 U.S.C.
§ 7292(d)(2). Even if we could exercise jurisdiction over
this question, it would have no effect on the Veterans
Court’s decision because no part of that decision turned on
the precise date of Mr. Golemon’s combat injury.
AFFIRMED
No Costs.