NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RASHID EL MALIK,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1637
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3770, Chief Judge Robert N. Da-
vis, Judge Coral Wong Pietsch, Judge Margaret C. Bartley.
______________________
Decided: October 9, 2019
______________________
RASHID EL MALIK, Palos Verde's Estate, CA, pro se.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK SCADDEN, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 EL MALIK v. WILKIE
______________________
Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
Veteran Rashid El Malik appeals the decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”) affirming the determination of the Board of
Veterans’ Affairs (“Board”) that El Malik is not entitled to
an earlier effective date or a higher disability rating for his
service-connected disability. El Malik v. Wilkie, No. 16-
3770,
2018 WL 4941013 (Vet. App. Oct 12, 2018). For the
reasons below, we lack jurisdiction over El Malik’s appeal
and, therefore, dismiss.
I. BACKGROUND
El Malik served on active duty in the U.S. Army from
January 1968 to June 1969. The Department of Veterans
Affairs (VA) has since determined that El Malik is partially
or fully disabled due to several service-connected condi-
tions, including, as relevant on appeal, left wrist arthritis.
El Malik,
2018 WL 4941013, at *1. Specifically, the VA
granted El Malik a 10 percent disability rating for his left
wrist arthritis for the period between April 20, 2005 and
July 17, 2014, and a 40 percent rating thereafter. App’x28–
32. 1
El Malik appealed the VA’s decision to the Board, ar-
guing that he was entitled to: (1) an earlier effective date
for his left wrist arthritis; and (2) a higher disability rating
both before and after July 17, 2014. App’x16. Regarding
the earlier effective date, El Malik argued that, in Septem-
ber 2003, he submitted a Statement in Support of Claim
along with a medical evaluation (together, “the 2003
1 App’x refers to the appendix filed with the govern-
ment’s brief.
EL MALIK v. WILKIE 3
Statement”) that evidenced a diagnosis of posttraumatic
derangement of his left wrist and hand. App’x20. El Malik
thus asserted that he was entitled to an effective date of
September 23, 2003 for his left wrist arthritis. Regarding
a higher disability rating, El Malik argued that he was en-
titled to a 60 percent rating for the entire period based on
the loss of use of his left hand. App’x21.
On October 28, 2016, the Board upheld the VA’s deter-
mination. First, the Board determined that El Malik was
not entitled to an earlier effective date for his left wrist con-
dition because “[n]either a formal nor informal claim for
entitlement to service connection for left wrist arthritis, or
any other left wrist disability, was received prior to April
20, 2005.” App’x17. The Board explained that the 2003
Statement did not constitute a claim for a left wrist disa-
bility because medical evidence of a condition alone does
not establish a veteran’s intent to seek service connection
for a disability. App’x20. Nor did El Malik submit a claim
along with the 2003 Statement that entitled him to an ear-
lier effective date. And, while El Malik did submit a claim
in July 2004 for a wrist and shoulder disability without
specifying whether it was his right or left wrist, in April
2005, El Malik submitted additional documents referring
to a pending claim only for a right wrist and shoulder dis-
ability. App’x20.
The Board then determined that El Malik was not en-
titled to a higher disability rating. The Board explained
that, pursuant to
38 C.F.R. § 4.71(a), Diagnostic Code 5215
(governing limitation of motion of the wrist), a 10 percent
evaluation was the maximum schedular evaluation availa-
ble for limitation of the wrist before July 17, 2014 because
El Malik did not suffer from ankylosis of the left wrist at
that time. App’x22. After July 17, 2014, El Malik suffered
from unfavorable ankylosis, and was thus awarded a 40
percent rating. But, because El Malik did not lose use of
his left hand, the Board found that he was not entitled to a
rating higher than 40 percent. App’x23. Accordingly, the
4 EL MALIK v. WILKIE
Board upheld the VA’s determination that El Malik was
not entitled to an effective date earlier than April 20, 2005
for his left wrist arthritis, nor was he entitled to a greater
disability rating during either period. App’x25.
El Malik appealed the Board’s decision to the Veterans
Court, reiterating his arguments before the Board and
seeking a referral for consideration of an extraschedular
rating based on the collective effect of multiple service-con-
nected disabilities. On October 12, 2018, the Veterans
Court affirmed the Board’s decision in a single-judge deci-
sion. El Malik,
2018 WL 4941013, at *1.
First, as to the effective date of his left wrist arthritis,
the Veterans Court explained that, to constitute a claim for
benefits, the claim must be in writing, express an intent to
apply for benefits, and identify the benefits sought. Id. at
*2. Because the 2003 Statement lacked any intent by El
Malik to apply for benefits and because El Malik only ref-
erenced his right wrist in subsequent communications, the
Veterans Court affirmed the Board’s determination that an
earlier effective date was not warranted. Id.
Second, the court upheld the Board’s determination
that El Malik was not entitled to a higher disability rating.
The court confirmed the Board’s analysis that, under Diag-
nostic Code 5215, El Malik was already receiving the max-
imum ratings for his wrist disability—10 percent before
July 17, 2014, without evidence of ankylosis, and 40 per-
cent thereafter, without evidence of loss of use of the hand.
Id. at *3. While El Malik contested the Board’s failure to
discuss his Kienbock’s disease 2 diagnosis or his February
2 Kienbock’s disease is a condition in which one of
the small bones in the wrist—the lunate bone—loses blood
supply, leading to avascular necrosis, or death of the bone
tissue. Kienböcks Disease, American Society for the Sur-
gery of the Hand, https://www.assh.org/handcare/hand-
EL MALIK v. WILKIE 5
2009 treatment record pertaining to the amputation of the
middle finger of his left hand, the Veterans Court found
that this evidence did not warrant a higher rating. The
court explained that (1) the same examiner who diagnosed
the Kienbock’s disease also noted that El Malik did not lose
use of his left hand, and (2) the amputation of El Malik’s
middle finger was not an issue before the court. Id.
Finally, regarding the collective impact of El Malik’s
service-connected disabilities and whether it warranted a
heightened rating, the court explained that the present
regulation,
38 C.F.R. § 3.321(b)(1), “eliminate[d] entitle-
ment to an extraschedular disability rating on a collective
basis.” Id. at *4. The Veterans Court thus concluded that
the Board’s failure to assess such entitlement was harm-
less.
On October 26, 2018, El Malik moved for panel review
of the single-judge decision. The court granted El Malik’s
motion and, on January 22, 2019, adopted the single-judge
decision as the decision of the court. This appeal followed.
On appeal, El Malik argues that: (1) the Board and the
Veterans Court failed to apply the correct law,
38 C.F.R.
§ 3.156, under which the 2003 Statement should have been
treated as an informal, reopened claim for his wrist disa-
bility; and (2) in determining the proper disability rating,
the Board and the Veterans Court failed to discuss or give
proper weight to the entirety of his medical record, includ-
ing his Kienbock’s disease diagnosis.
II. DISCUSSION
Our jurisdiction to review Veterans Court decisions is
limited by statute. Pursuant to
38 U.S.C. § 7292(a), we
may review “the validity of a decision of the [Veterans]
arm-conditions/kienbocks-disease (last visited Oct. 7,
2019).
6 EL MALIK v. WILKIE
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.” Except with respect to con-
stitutional issues, we “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or regu-
lation as applied to the facts of a particular case.”
§ 7292(d)(2).
El Malik argues that we have jurisdiction over his ap-
peal because he challenges the Veterans Court’s interpre-
tation of the law—namely, whether
38 C.F.R. § 3.156
should have been applied. Section 3.156(a) provides, in rel-
evant part, that “[a] claimant may reopen a finally adjudi-
cated legacy claim by submitting new and material
evidence.” According to El Malik, the 2003 Statement con-
stituted new and material evidence that warranted the re-
opening of his claim, especially under the sympathetic
reading accorded to veterans.
But it is undisputed that El Malik did not submit a
claim for disability based on his left wrist before the 2003
Statement. The first mention of his left wrist disability,
rather, was in the 2003 Statement. Accordingly, the ques-
tion for the Board, and later reviewed by the Veterans
Court, was whether the 2003 Statement constituted a
claim for benefits. Regardless of the answer, § 3.156 was
never at issue because, before the 2003 Statement, there
was no preexisting claim to reopen. Whether the 2003
Statement constituted a claim for benefits, moreover, is a
factual determination outside our jurisdiction. See,
e.g., Comer v. Peake,
552 F.3d 1362, 1372 (Fed. Cir. 2009)
(“Whether a veteran has raised a particular claim is a fac-
tual determination, outside the purview of our appellate
authority.”); Moody v. Principi,
360 F.3d 1306, 1310 (Fed.
Cir. 2004) (“The interpretation of these prior filings is es-
sentially a factual inquiry, and it is beyond our jurisdiction
to make that determination.”).
EL MALIK v. WILKIE 7
El Malik’s remaining arguments fare no better. The
determination of the proper disability rating and the
weighing of evidence in support of that determination are
both factual determinations. See, e.g., Bastien v. Shinseki,
599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and
weighing of evidence and the drawing of appropriate infer-
ences from it are factual determinations committed to the
discretion of the fact-finder. We lack jurisdiction to review
these determinations.”). As such, they are beyond our ju-
risdiction.
III. CONCLUSION
We have considered El Malik’s remaining arguments
and conclude that they do not identify issues over which we
have jurisdiction. Because El Malik’s appeal presents only
challenges to factual determinations or the application of
law to facts, we dismiss for lack of jurisdiction.
DISMISSED
COSTS
No costs.
