Comfort v. McDonald , 670 F. App'x 711 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICARDO V. COMFORT,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-2376
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-2064, Judge Bruce E. Kasold.
______________________
Decided: November 8, 2016
______________________
RICARDO V. COMFORT, Virginia Beach, VA, pro se.
SEAN SIEKKINEN, 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., SCOTT D.
AUSTIN; Y. KEN LEE, MEGHAN ALPHONSO, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
2 COMFORT v. MCDONALD
Before O’MALLEY, MAYER, and STOLL, Circuit Judges.
PER CURIAM.
Ricardo Comfort seeks review of the May 10, 2016 de-
cision of the Court of Appeals for Veterans Claims (the
“Veterans Court”) affirming the March 18, 2015 decision
of the Board of Veterans’ Appeals (the “Board”). Comfort
v. McDonald, No. 15-2064, 2016 WL 2640986 (Vet. App.
May 10, 2016). For the reasons below, we dismiss Mr.
Comfort’s appeal for lack of jurisdiction.
BACKGROUND
Mr. Comfort served on active duty in the Army from
October 1972 to October 1974. In February 2001, Mr.
Comfort filed a claim of entitlement to service connection
for post-traumatic stress disorder (“PTSD”) and depres-
sion, which the Department of Veterans Affairs (the “VA”)
denied in April 2002. Mr. Comfort appealed to the Board,
which in March 2004 affirmed with respect to the PTSD
claim, but remanded with respect to the depression claim.
Mr. Comfort did not appeal the Board’s decision on the
PTSD claim to the Veterans Court, and on July 26, 2004,
that decision became final.
On December 6, 2004, the VA sent Mr. Comfort letters
requesting information about his remanded depression
claim. Mr. Comfort replied with three copies of a “State-
ment in Support of Claim” form (the “Form”), providing
additional information regarding his claim for PTSD,
depression, and other physical injuries he claimed were
service connected: torn ligaments, a failed surgery on his
right ear drum, high blood pressure, acid reflux, arthritis
in his neck, hepatitis B, and hepatitis C. The Form did
not contain any request for judicial review of the Board’s
decision.
On January 4, 2005, construing the Form to be a re-
quest to reopen his claim for PTSD benefits, the VA
COMFORT v. MCDONALD 3
denied service connection, but determined that the evi-
dence proved that Mr. Comfort did suffer from PTSD. Mr.
Comfort appealed the VA’s decision to the Board, which
remanded to the VA for further consideration in light of
new evidence Mr. Comfort had provided on appeal. On
March 29, 2013, the VA granted PTSD service connection
with an effective date of January 4, 2005.
Mr. Comfort appealed to the Board, arguing that the
Form should have been construed as a notice of appeal,
rather than a request to reopen. Because the Form was a
notice of appeal, Mr. Comfort argued, the proper effective
date is the date of his original filing: February 2001.
Although he filed the Form outside the 120-day window to
appeal, Mr. Comfort claimed that equitable tolling ap-
plied; mental illness had prevented him from filing the
appeal in a timely manner. The Board disagreed, affirm-
ing the VA’s decision. Mr. Comfort appealed the Board’s
decision, and the Veterans Court affirmed. The Veterans
Court noted in particular that the documents Mr. Comfort
filed in response to the December 2004 VA letter did not
mention judicial review, instead referring only to an
internal VA review program. Regarding equitable tolling,
the Veterans Court determined that Mr. Comfort failed to
demonstrate that his condition prevented him from filing
a notice of appeal. Mr. Comfort now appeals to this
Court.
DISCUSSION
Our ability to review a decision of the Veterans Court
is limited. We may 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). We have exclusive jurisdiction “to
review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof
4 COMFORT v. MCDONALD
brought under [38 U.S.C. § 7292], and to interpret consti-
tutional and statutory provisions, to the extent presented
and necessary to a decision.” Id. § 7292(c). Except to the
extent an appeal presents a constitutional issue, we “may
not review (A) a challenge to a factual determination, or
(B) a challenge to a law or regulation as applied to the
facts of a particular case.” Id. § 7292(d)(2).
We agree with the government that we do not have
jurisdiction over this appeal under 38 U.S.C. § 7292(d)(2).
Interpretation of the contents of a claim for benefits is a
factual matter over which this Court does not have juris-
diction. Ellington v. Peake, 541 F.3d 1364, 1371–72 (Fed.
Cir. 2008). The Veterans Court interpreted the Form as a
request to reopen a claim for benefits. Mr. Comfort now
asks us to review that interpretation, which is beyond our
purview. See Moody v. Principi, 360 F.3d 1306, 1310
(Fed. Cir. 2004) (“The interpretation of these prior filings
is essentially a factual inquiry, and it is beyond our
jurisdiction to make that determination.”).
Even if we had jurisdiction to review the Veterans
Court’s interpretation of Mr. Comfort’s Form, we plainly
do not have jurisdiction over the Veterans Court’s evalua-
tion of his equitable tolling argument. See Leonard v.
Gober, 223 F.3d 1374, 1375–76 (Fed. Cir. 2000). Mr.
Comfort essentially argues that the Veterans Court
misapplied the doctrine, as it should have found the fact
that Mr. Comfort did not receive notice of denial sufficient
justification for equitable tolling. He also contends that
equitable tolling should apply because of his mental
health issues. These arguments, however, challenge the
Veterans Court’s application of law to facts, an applica-
tion this Court cannot review. Dixon v. Shinseki, 741
F.3d 1367, 1377 (Fed. Cir. 2014) (“This court is precluded
from reviewing factual determinations bearing on a
veteran’s equitable tolling claim.”); Leonard, 223 F.3d at1375–76.
COMFORT v. MCDONALD 5
Because Mr. Comfort exclusively appeals matters over
which this Court lacks jurisdiction, we must dismiss Mr.
Comfort’s appeal.
DISMISSED