Strickland v. Shinseki ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT L. STRICKLAND, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7095
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2680, Judge Mary J. Schoelen.
______________________
Decided: October 8, 2013
______________________
ROBERT L. STRICKLAND, JR., of Sumter, South Caroli-
na, pro se.
ALEXANDER V. SVERDLOV, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and JOSHUA P. MAYER, Attor-
2 STRICKLAND v. SHINSEKI
ney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before NEWMAN, CLEVENGER, and TARANTO, Circuit
Judges.
PER CURIAM.
In 2011, the Board of Veterans’ Appeals partly denied
and partly dismissed Robert L. Strickland’s motion as-
serting that the Board had earlier committed clear and
unmistakable error regarding certain of Mr. Strickland’s
claims for disability benefits. The Court of Appeals for
Veterans Claims found no error in the Board’s decision.
Strickland v. Shinseki, No. 11-2680, 2013 WL 388584(Vet. App. Jan. 31, 2013). Because of the limits on this
court’s own jurisdiction to review decisions of the Veter-
ans Court, we dismiss Mr. Strickland’s appeal.
BACKGROUND
Mr. Strickland served on active duty in the United
States Air Force from April 1980 to June 2000. In April
2000, he filed a claim for veterans’ disability benefits,
asserting that he was suffering from multiple ailments,
including sinusitis, allergic rhinitis, bilateral hearing loss,
bilateral leg tendonitis, mild forefoot difficulties, mild
eczema, vision impairment, low back pain, and a dental
condition, and that each of the conditions was connected
to his military service.
In November 2000, a Regional Office of the United
States Department of Veterans Affairs (VA) found a
service connection for Mr. Strickland’s mild eczema,
sinusitis, allergic rhinitis, and mild forefoot difficulties.
The Regional Office also found that his eczema and fore-
foot difficulties were compensable under the VA’s rating
system, and it classified each condition as 10 percent
disabling. The Regional Office determined, however, that
STRICKLAND v. SHINSEKI 3
although Mr. Strickland had suffered from sinusitis and
allergic rhinitis related to his military service, he did not
have compensable forms of those problems as of July
2000, the effective date of his application for benefits. In
particular, the Regional Office determined that these two
problems had been adequately addressed by sinus surgery
in 1999 along with regularly administered medications.
Finally, the Regional Office denied Mr. Strickland’s
claims of service connection for vision impairment, bilat-
eral hearing loss, low back pain, and tendonitis. Mr.
Strickland did not file a notice of disagreement with the
Regional Office determinations, which therefore became
final. See 38 U.S.C. § 7105, 38 C.F.R. §§ 3.104(a),
3.160(d), 20.302(a), 20.1103.
In July 2002, Mr. Strickland submitted a statement to
the Regional Office, reporting that his allergies (underly-
ing his sinusitis and rhinitis) had become more severe
since 2000 and that he now required additional medica-
tion. In his statement, Mr. Strickland also requested
reopening of his claims for bilateral hearing loss, ten-
donitis of the ankles, tendonitis of the legs, and a dental
disorder. In January 2003, based on this statement and
the subsequent VA medical examination, the Regional
Office granted Mr. Strickland a 10 percent disability
rating for his sinusitis and allergic rhinitis. But the
Regional Office determined that there was no new and
material evidence to justify reopening his disability
compensation claims for bilateral hearing loss, tendonitis
of the legs, tendonitis of the ankles, and a dental condi-
tion.
Mr. Strickland appealed the Regional Office’s 2003
decision to the Board of Veterans’ Appeals, arguing that
he was entitled to a disability rating for his sinusitis and
rhinitis higher than 10 percent and that his denied claims
should be reopened. On March 6, 2009, after an initial
hearing and remand, the Board issued its decision. The
Board considered additional evidence submitted after Mr.
4 STRICKLAND v. SHINSEKI
Strickland’s July 2002 statement, including two VA
medical examinations, a computed-tomography examina-
tion, and multiple reports from Mr. Strickland, but it
found that Mr. Strickland was not entitled to a disability
rating of more than 10 percent for his sinusitis and aller-
gic rhinitis under 38 C.F.R. § 4.97. The Board also found
that Mr. Strickland had not identified any new and mate-
rial evidence that would justify reopening his claims for
benefits based on vision problems, bilateral hearing loss,
tendonitis of the legs, tendonitis of the ankles, and a
dental disorder. 1 For those claims, the Board found that
Mr. Strickland had not carried his burden of presenting
new and material evidence relating to each alleged disa-
bility, i.e., evidence not previously submitted to the VA
that “relates to an unestablished fact necessary to sub-
stantiate the claim.” 38 U.S.C. § 5108; 38 C.F.R. § 3.156.
The Board did, however, grant Mr. Strickland’s re-
quest to reopen his claim for a chronic low back disorder
and found a service connection for that disorder. In June
2004, a medical provider found that Mr. Strickland suf-
fered from bulging disks and degenerative joint disease of
the cervical spine and lumbar spine. In the provider’s
opinion, it was “certainly a possibility” that Mr. Strick-
land’s current back condition was related to his back
injury during service. The Board also considered an
August 2008 clinical opinion, which established that Mr.
Strickland was treated for a chronic back disorder while
1 The Board referred two of Mr. Strickland’s
claims—for benefits based on dry-eye syndrome and
damage to his eardrums—back to the Regional Office for
further inquiry. In addition, reading several of Mr.
Strickland’s statements as seeming to raise a claim for VA
dental benefits based on in-service treatment of his teeth,
the Board referred that potential claim to the Regional
Office.
STRICKLAND v. SHINSEKI 5
in service and that the disorder had continued and was
still being treated. The Board concluded that there was
sufficient new and material evidence of a lower-back
disorder that was related to an in-service injury.
The Board also granted Mr. Strickland’s request to
reopen his claim for tendonitis of the ankles. A November
2002 orthopedic evaluation had diagnosed Mr. Strickland
with chronic bilateral ankle strains, a condition that had
been present during Mr. Strickland’s service. Based on
that evaluation and an earlier one, the Board found that
there was new and material evidence regarding Mr.
Strickland’s claim for benefits based on an ankle disorder.
The Board remanded the claim to the Regional Office.
Mr. Strickland did not appeal to the Veterans Court
either the denial of the rating increase or the rejection of
reopening as to a number of his claims.
In May 2011, Mr. Strickland filed with the Board a
motion for “reconsideration and revision” of the March
2009 Board decision on the basis of clear and unmistaka-
ble error (CUE). See 38 U.S.C. § 7111(a); 38 C.F.R. §§
20.1403(a), (c). On June 29, 2011, the Board partly de-
nied and partly dismissed Mr. Strickland’s CUE challeng-
es.
The denial concerned the Board’s denial of a rating
higher than 10 percent for Mr. Strickland’s sinusitis and
allergic rhinitis. The Board explained that neither the
“level of detail recorded in service records” nor an alleged
failure by the VA to obtain additional records, which were
the bases for Mr. Strickland’s claim, could be CUE.
Further, the evidence suggested that Mr. Strickland’s
medical history was thoroughly reviewed by the VA and
that the 10 percent disability rating was properly based
on the severity of his disability at the relevant time. The
Board also explained that a finding of CUE could not rest
on mere disagreement with how the facts of his condi-
6 STRICKLAND v. SHINSEKI
tion—number and severity of sinus infections—were
weighed or evaluated. See 38 C.F.R. § 20.1403(d).
The dismissal concerned certain other claims. The
Board found that Mr. Strickland “failed to adequately set
forth the alleged CUE . . . in the Board decision” with
regard to his claims for bilateral hearing loss, tendonitis
of the legs, and a dental disorder. On the basis of that
pleading deficiency, it dismissed without prejudice his
motion for revision as to those claims. See 38 C.F.R.
§ 20.1404(b).
Mr. Strickland appealed the 2011 Board denial of the
CUE motion to the Court of Appeals for Veterans Claims,
which affirmed the decision on January 31, 2013. Strick-
land, No. 11-2680, 2013 WL 388584. The Veterans Court
found no reversible error in either of the Board’s two
rulings on Mr. Strickland’s allegation of CUE in the
March 2009 Board decision.
Regarding the rating level, the Veterans Court rea-
soned that the “March 2009 Board decision properly
considered the history of the appellant’s sinusitis when it
adjudicated his June 2002 rating increase claim for sinus-
itis.” Id. at *2. The Veterans Court explained that the
Board properly focused on the severity of Mr. Strickland’s
disability during the relevant period (July 2002 until
March 2009), whereas Mr. Strickland’s CUE motion had
focused on the episodes of sinusitis that he experienced
many years earlier, during his military service. Id. To
the extent that Mr. Strickland discussed the severity of
his disability during the relevant period (2002-2009), the
Veterans Court agreed with the Board that his disagree-
ment was with how the Board weighed the evidence. Id.
at *3. The Veterans Court also disagreed with Mr. Strick-
land’s allegations that one of his VA ear, nose, and throat
examinations was inadequate because it “was not based
on a thorough review of his medical history. . . .” Id. The
STRICKLAND v. SHINSEKI 7
Veterans Court explained that the Board had properly
found the medical examination to have included an ade-
quate discussion of Mr. Strickland’s medical history, and
the Veterans Court further agreed with the Board that,
because the report was not the only evidence in the record
used to deny Mr. Strickland’s claim, he “ha[d] not estab-
lished that the outcome of the March 2009 Board decision
would have been manifestly different . . . .” Id.
The Veterans Court also affirmed the Board’s dismis-
sal without prejudice of Mr. Strickland’s CUE challenge
regarding his claims for disability benefits for bilateral
hearing loss, tendonitis of the legs, and a dental disorder.
Strickland v. Shinseki, No. 11-2680, 2013 WL 388584, at
*4. The Veterans Court agreed with the Board that,
despite providing a detailed explanation of why he be-
lieved he was entitled to disability compensation benefits
for these ailments, Mr. Strickland had failed to plead with
specificity clear and unmistakable errors in the March
2009 Board decision. Id. The Veterans Court noted,
however, that Mr. Strickland could re-file his CUE asser-
tions with the Board in a manner that complied with 38
C.F.R. § 20.1404(b). Id. The Veterans Court dismissed
additional arguments made by Mr. Strickland pertaining
to other disabilities for lack of jurisdiction because they
were not the subject of the Board’s 2011 decision. Id. at
*5. Mr. Strickland appeals.
DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute. See 38 U.S.C.
§ 7292. We have jurisdiction to decide appeals that
challenge the validity of a decision of the Veterans Court
with respect to a rule of law or the validity of any consti-
tutional provision, statute, or regulation, including any
interpretation of such a source of law. Id. § 7292(d)(1).
We do not have jurisdiction to review a challenge to a
factual determination made by the Veterans Court or a
8 STRICKLAND v. SHINSEKI
challenge to a law or regulation as applied to the facts of a
particular case unless the challenge presents a constitu-
tional issue. Id. § 7292(d)(2).
Some of Mr. Strickland’s arguments relate to issues
that were before the Veterans Court on appeal—
specifically, the proper rating for Mr. Strickland’s sinusi-
tis and allergic rhinitis, and the Board’s denial of Mr.
Strickland’s request to reopen his claims for hearing loss,
tendonitis of the legs, and a dental disorder. Brief for
Appellant at 5-6, 12-14. For example, Mr. Strickland
alleges that a flight surgeon documented more than six
non-incapacitating episodes of sinusitis/allergic rhinitis
within one year in 1998 and that this should have been
sufficient for the VA to assign him a higher disability
rating. Id. at 3. He goes on to document the findings of
medical examinations and recommendations made by
providers in support of his request for a higher disability
rating for his sinusitis and allergic rhinitis, and main-
tains his challenge to the adequacy of the medical evi-
dence. Id. at 3-4, Questions 4-5. Mr. Strickland also asks
this court to consider “musculo-skeletal conditions . . .
with injury of both feet and ankles” as a result of an
injury sustained in 1989 as well as details of his dental
history, evidence which he alleges prove certain disabili-
ties and entitle him to compensation. Id. at 5-6, 12-14.
The Veterans Court found no error with how the Board
evaluated and weighed the evidence relating to the proper
disability rating for Mr. Strickland’s sinusitis and allergic
rhinitis. Strickland, No. 11-2680, 2013 WL 388584, at *2-
3. The Veterans Court also determined that the Board’s
dismissal of Mr. Strickland’s CUE claims relating to his
request to reopen his claims for hearing loss, tendonitis of
the legs, and a dental disorder were not improper given
that Mr. Strickland’s argument was that the weight of the
evidence entitled him to disability compensation benefits,
and was not directed to any specific errors made by the
STRICKLAND v. SHINSEKI 9
Board that would have materially affected the outcome of
his case. See id. at 4.
These contentions are outside our jurisdiction. Under
38 U.S.C. § 7292(d)(2), we may not review factual findings
or the application of the law to the facts where, as here,
no constitutional claims are present. Mr. Strickland does
not raise any constitutional issue or identify a statute or
regulation that the Veterans Court misinterpreted. 2 He
does extensively cite to the regulations setting forth the
diagnoses and disability ratings to which he believes he is
entitled, but he makes no allegations that the VA or
Board misinterpreted those regulations. See Brief for
Appellant at 3, 14-17. Nor does Mr. Strickland identify
any error in the Veterans Court’s statements of the law
more generally, such as the law concerning the adequacy
of the Board’s analysis. Rather, he argues that the Board
and VA did not properly evaluate and weigh the relevant
medical evidence, and relied on inadequate evidence, and
thereby failed to properly diagnose and rate his disabili-
ties. Even if this claim of error applied not just to the
Board and the VA but to the Veterans Court, it would be
outside our jurisdiction, because it concerns only the
weighing of evidence and not an error in a rule of law.
2 In response to question 5 in his brief, Mr. Strick-
land argues that “[b]enefit of the doubt consideration was
not given as to why my military and veterans’ medical
records did not contain sufficient details . . . .” This court
has held, however, that a claim of “CUE does not create a
‘balance of the evidence’ situation to which the ‘benefit of
the doubt’ rule could apply.” Disabled American Veterans
v. Gober, 234 F.3d 682, 697 (Fed. Cir. 2000); see Yates v.
West, 213 F.3d 1372, 1375 (Fed. Cir. 2000) (“[T]he ‘benefit
of the doubt’ rule of 38 U.S.C. § 5107(b) does not apply to
a motion for revision on the ground of clear and unmis-
takable error.”).
10 STRICKLAND v. SHINSEKI
See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir.
2010).
Mr. Strickland alleges several other instances where
the Board and VA failed to consider medical evidence
related to conditions that were the subject of the earlier
2009 Board decision (but not the 2011 Board decision), or
were not before the Board in 2009. See Brief for Appel-
lant at 2 (chorioretinal scar and dry eye syndrome); id. at
3 (service-connected uvula reduction surgery”); id. at 4-5
(degenerative disc disease); id. at 7-8 (multiple fore foot
difficulties and shin splints); id. at 9 (hearing loss and
tinnitus); id. at 10-11 (multiple skin disorders). These
arguments were not before the Veterans Court, however,
and were not the subject of its decision on appeal here.
We therefore do not consider these arguments.
Finally, Mr. Strickland appears to raise several new
claims, including claims for “adverse reactions to the
Gamma Globulin vaccine (Hepatitis-B Vaccine),” “Com-
plex Regional Pain Syndrome or Regional Pain Syn-
drome,” probable exposure to depleted uranium while in
service, physical dysfunction involving sexual perfor-
mance, and moderate post-traumatic stress disorder. See
Brief for Appellant at 2, 5-6, 8-9. Mr. Strickland also asks
that this court reopen his claim for “repeated throat and
tonsil infections.” Id. at 2. This court does not have
jurisdiction to adjudicate claims in the first instance or to
determine whether Mr. Strickland has offered sufficient
new and material evidence to reopen a prior claim.
Accordingly, we have no jurisdiction over this appeal,
which must be dismissed.
No Costs.
DISMISSED