Anderson v. Shinseki , 561 F. App'x 932 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRIAN ANDERSON,
Claimant-Appellant
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee
______________________
2013-7143
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-0274, Judge Alan G. Lance, Sr.
______________________
Decided: April 10, 2014
______________________
BRIAN ANDERSON, of Sterling, Colorado, pro se.
MARTIN M. TOMLINSON, 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,
Assistant Attorney General, BRYANT SNEE, Acting Direc-
tor, and STEVEN J. GILLINGHAM, Assistant Director. Of
counsel on the brief were Y. KEN LEE, Deputy Assistant
General Counsel, and JOSHUA MAYER, Attorney, United
2 ANDERSON v. SHINSEKI
States Department of Veterans Affairs, of Washington,
DC.
______________________
PER CURIAM.
Brian Anderson appeals from the decision of the Unit-
ed States Court of Appeals for Veterans Claims (“Veter-
ans Court”) affirming the decision of the Board of
Veterans’ Appeals (“Board”) finding that the character of
Anderson’s other-than-honorable (“OTH”) discharge
barred entitlement to benefits from the Department of
Veterans Affairs (“VA”). See Anderson v. Shinseki, No.
12-0274, 2013 WL 2390941 (Vet. App. June 3, 2013).
Because Anderson’s arguments challenge only factual
findings and an application of law to fact, we dismiss for
lack of jurisdiction.
BACKGROUND
Anderson served on active duty in the United States
Marine Corps from October 1977 to October 1979. After
67 days of absence without leave, Anderson was classified
as a deserter and discharged under OTH conditions. Id.
at *1. Anderson received mental status evaluations in
both March and August 1979, but neither evaluation
revealed any indication of psychological disability. Id. In
2002, and again in 2004, the Army Board for Correction of
Military Records found no basis on which to revise Ander-
son’s character of discharge.
In 2002, Anderson filed a claim with a VA Regional
Office (“RO”) seeking to establish service connection for a
mental disability. The RO determined that the character
of Anderson’s discharge presented a bar to his benefit
eligibility. Id. Anderson appealed to the Board, which
issued a final decision in 2006 finding that Anderson’s
character of discharge constituted a bar to VA benefits.
Id. In 2008, following an appeal, the Veterans Court
granted a joint motion for remand vacating the Board’s
ANDERSON v. SHINSEKI 3
decision, in which the parties agreed that the VA had not
satisfied its duty to assist Anderson because it had not
requested records from the VA Medical Center where he
claimed to have received treatment after being discharged
from service. Id.
In 2011, the RO informed Anderson that it had re-
ceived a negative reply for its request for service records
and that all efforts to obtain his records had been ex-
hausted. Id. at *2. Anderson again appealed, and the
Board found that the RO had substantially complied with
the remand instructions in its efforts to locate Anderson’s
records. Based on the available records, the Board fur-
ther found that there was no evidence indicating that
Anderson was “insane” either during his time of service or
shortly after his discharge from service. App. to Appellee
Br. 27–28. The Board also found that Anderson’s absence
without leave for 67 days during his period of service,
along with two offenses for disrespectful conduct toward a
superior officer, constituted persistent and willful mis-
conduct justifying discharge under OTH conditions pur-
suant to 38 C.F.R. § 3.12(d)(4), and further that his
conduct did not fall within the exception for a minor
offense. Id. at 28. Accordingly, the Board ultimately
found that Anderson’s discharge was OTH, which was a
bar to his eligibility for VA benefits. Id. at 17, 19–20.
Anderson again appealed to the Veterans Court,
which affirmed the Board’s decision. Anderson, 2013 WL
2390941, at *3. The court concluded that there was no
clear error in the Board’s finding that: (i) the VA satisfied
its duty to assist because the RO substantially complied
with the terms of the 2008 joint motion for remand by
requesting Anderson’s alleged records and Anderson
otherwise failed to show that he was harmed by the
purported failure to obtain them; and (ii) the evidence
established that the offenses for which Anderson was
discharged under OTH conditions were willful and persis-
tent and did not fall within the exception for a discharge
4 ANDERSON v. SHINSEKI
for a minor offense that would allow him to pursue enti-
tlement to VA benefits. Id. at *2–3.
Anderson then appealed to this court seeking to in-
voke our jurisdiction under 38 U.S.C. § 7292.
DISCUSSION
The scope of our review in an appeal from a Veterans
Court decision is limited. We may review a Veterans
Court decision with respect to the validity of a decision on
a rule of law or the validity or interpretation of any stat-
ute or regulation that was relied upon by the Veterans
Court in making the decision. 38 U.S.C. § 7292(a). Ex-
cept with respect to constitutional issues, 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).
The Veterans Court decision did not involve any ques-
tions regarding the validity or interpretation of a statute
or regulation. Rather, the Veterans Court merely applied
the law governing both the VA’s duty to assist a claimant
and its character of discharge determination to the facts
of Anderson’s case. Anderson, 2013 WL 2390941, at *2–3.
Anderson asserts here that: (i) he should not be pre-
cluded from eligibility for VA benefits because he was
“insane” at the time that he committed the offenses that
led to his discharge under OTH conditions; (ii) the RO
failed to comply with the 2008 joint motion for remand by
not obtaining the records that he alleges exist and sup-
port his disability contention; and (iii) the Veterans Court
erred in its determination that the Board’s findings to the
contrary were not clearly erroneous. However, those
arguments challenge only the Veterans Court’s applica-
tion of 38 U.S.C. §§ 5103A(a)(1) and 5303(b) to the facts of
Anderson’s case, which are matters outside of our juris-
diction. See Dyment v. Principi, 287 F.3d 1377, 1381 (Fed.
Cir. 2002) (holding that claimant’s appeal of the Veterans
ANDERSON v. SHINSEKI 5
Court’s finding that there was no compliance with a
remand order was a factual challenge beyond our jurisdic-
tion); see also Glover v. West, 185 F.3d 1328, 1333 (Fed.
Cir. 1999) (finding no jurisdiction to review the Veterans
Court’s determination that there was no breach of duty to
assist).
We have considered the additional arguments pre-
sented in Anderson’s informal appeal briefs but do not
find them persuasive. Anderson raises neither a substan-
tial constitutional issue nor other legal question. For the
foregoing reasons, the appeal is dismissed for lack of
jurisdiction.
DISMISSED
COSTS
No costs.