Sudranski v. Shulkin , 683 F. App'x 961 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD L. SUDRANSKI,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1091
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-1312, Judge William Green-
berg.
______________________
Decided: April 10, 2017
______________________
RICHARD L. SUDRANSKI, Roanoke, VA, pro se.
DAVID PEHLKE, 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., L. MISHA
PREHEIM; Y. KEN LEE, BRYAN THOMPSON, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
2 SUDRANSKI v. SHULKIN
______________________
Before WALLACH, CLEVENGER, and SCHALL,
Circuit Judges.
PER CURIAM.
The instant appeal concerns whether a clear and un-
mistakable error undermines a service-connected disabil-
ity rating granted to Appellant Richard L. Sudranski by
the U.S. Department of Veterans Affairs (“the VA”) in
1986. The VA’s Board of Veterans Appeals (“the Board”)
determined that its prior decision granting the rating did
not contain a clear and unmistakable error, see Appellee’s
Separate App. 19; see id. at 17–27, and the U.S. Court of
Appeals for Veterans Claims (“Veterans Court”) affirmed,
see Sudranski v. McDonald, No. 15-1312, 2016 WL
4467919, at *1 (Vet. App. Aug. 24, 2016). Because we lack
subject matter jurisdiction over the issues that Mr. Su-
dranski raises, we dismiss.
BACKGROUND
Mr. Sudranski has sought various disability benefits
from the VA for nearly forty years, a pursuit that has
produced voluminous records and numerous decisions
from our court and other adjudicative bodies. We recite
only those facts necessary to resolve the issues before us.
Mr. Sudranski served on active duty in the U.S. Navy
from 1969 to 1971, and he served as a reservist prior to
that time. Beginning in 1977, Mr. Sudranski sought
service-connected disability benefits for various psychiat-
ric disorders. 1 The Board issued a decision in 1986 that
1 A “service-connected disability” generally means a
disability incurred or aggravated while on active duty.
See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166 (Fed.
Cir. 2004).
SUDRANSKI v. SHULKIN 3
granted Mr. Sudranski a disability rating of fifty percent
for agitated depression with paranoid ideation. Appellee’s
Separate App. 37; see id. at 28–38. The Board referred
the case to the VA for further review of Mr. Sudranski’s
claim for a total disability rating based on individual
unemployability (“TDIU”). 2 Id. at 38.
After additional proceedings before the VA, the Board
in 1990 increased Mr. Sudranski’s disability rating to
100% with an effective date of January 1986, id. at 62,
but denied his claim for a TDIU effective before January
1986, id. at 62; see id. at 48–63. Mr. Sudranski did not
prevail in subsequent appeals of the Board’s 1990 deci-
sion.
After Mr. Sudranski unsuccessfully appealed the
Board’s 1990 decision, he filed three motions to revise the
Board’s 1986 decision to obtain a higher disability rating
with an earlier effective date, each time alleging that the
disputed decision contained clear and unmistakable
errors. 3 The Board dismissed Mr. Sudranski’s first mo-
2 The VA generally undertakes a TDIU rating when
a veteran demonstrates an inability to maintain substan-
tially gainful employment as a result of a service-
connected disability. See, e.g., Sturdivant v. Shinseki, 480
F. App’x 992, 995 (Fed. Cir. 2012).
3 A decision by the VA or the Board that has be-
come final generally may not be revised absent a clear
and unmistakable error. See 38 U.S.C. §§ 5109A(a), 7111
(2012). A “clear and unmistakable error” arises when a
veteran satisfies two conditions “based on the record and
the law that existed at the time of the prior adjudication.”
Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008)
(citation omitted). The veteran must show that (1) “the
correct facts, as they were known at the time, were not
before the adjudicator or the statutory or regulatory
provisions extant at the time were incorrectly applied,”
4 SUDRANSKI v. SHULKIN
tion. On his second motion, we agreed with the Veterans
Court and the Board that Mr. Sudranski failed to demon-
strate that the decision contained such an error. See
Sudranski v. Shinseki, 423 F. App’x 983, 984 (Fed. Cir.
2011).
In 2011, Mr. Sudranski filed his third motion to revise
the Board’s 1986 decision, Appellee’s Separate App. 81,
and that request forms the basis of the instant appeal.
Mr. Sudranski alleged that the record had not contained
all of the relevant facts and that the Board otherwise had
failed to consider all of the relevant record facts. See, e.g.,
id. at 118–19. He also alleged that the Board improperly
referred his TDIU matter to the VA. See id. at 107.
The Board denied Mr. Sudranski’s third motion. The
Board held that Mr. Sudranski had not identified any
specific missing evidence or articulated an argument as to
how the Board had misapplied the law in effect at the
time it issued the 1986 decision. See id. at 23–24. The
Board also rejected Mr. Sudranski’s argument that it had
erred in referring the TDIU issue to the VA. See id. at 24.
Mr. Sudranski appealed to the Veterans Court, which
affirmed the Board. Although the Veterans Court “would
have weighed the evidence differently in 1986” because
“[t]he record is replete with evidence reflecting that [Mr.
Sudranski] should have been entitled to a disability
rating greater than 50%,” Sudranski, 2016 WL 4467919,
at *5, it determined that the Board properly concluded
that its 1986 decision did not contain a clear and unmis-
takable error, id. at *5–6. The Veterans Court also con-
cluded that the Board had properly referred the TDIU
issue to the VA. Id. at *6. The instant appeal followed.
and (2) the failure to consider the correct facts or apply
the relevant law correctly was “undebatable” and “mani-
festly changed the outcome.” Id. (citation omitted).
SUDRANSKI v. SHULKIN 5
DISCUSSION
I. Subject Matter Jurisdiction
We possess limited subject matter jurisdiction over
appeals from the Veterans Court. We may “review and
decide any challenge to the validity of any statute or
regulation or any interpretation thereof . . . and . . . inter-
pret constitutional and statutory provisions, to the extent
presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). Absent a legitimate constitutional issue, we
lack subject matter jurisdiction over an appeal that raises
“(A) a challenge to a factual determination, or (B) a chal-
lenge to a law or regulation as applied to the facts of a
particular case.” Id. § 7292(d)(2). And in the absence of a
legitimate constitutional question, an appeal must pre-
sent a “non-frivolous legal question.” Beasley v. Shinseki,
709 F.3d 1154, 1158 (Fed. Cir. 2013).
II. The Court Lacks Subject Matter Jurisdiction Over Mr.
Sudranski’s Appeal
Mr. Sudranski’s appeal does not involve the interpre-
tation of a statute or regulation, and it does not concern a
legitimate constitutional question. 4 Instead, Mr. Sudran-
ski raises a series of arguments related to the Board’s
1986 decision that concern the application of law to par-
4 Mr. Sudranski alleges without support that the
Veterans Court and the Board violated certain of his
constitutional rights. See, e.g., Appellant’s Br. 10, 13, 19,
22. However, neither the Board nor the Veterans Court
decided a constitutional question, see Sudranski, 2016 WL
4467919, at *5–6; Appellee’s Separate App. 17–27, and
characterizing unsupported arguments as constitutional
does not make them so, see Helfer v. West, 174 F.3d 1332,
1335 (Fed. Cir. 1999).
6 SUDRANSKI v. SHULKIN
ticular facts, see generally Appellant’s Br., 5 and we lack
subject matter jurisdiction over those questions, see 38
U.S.C. § 7292(d)(2).
For example, Mr. Sudranski contends that the Board’s
1986 decision failed to rate his psychiatric symptoms
when evaluating his service-connected disability, assigned
him an incorrect diagnostic code, and erroneously weighed
evidence related to his symptoms. See Appellant’s Br. 11–
17. However, an allegation that certain evidence would
produce a different disability rating raises a “pure ques-
tion of fact” that we may not review. Ortiz v. Shinseki,
427 F. App’x 889, 891 (Fed. Cir. 2011). Similarly, chal-
lenges to the nature and classification of a diagnosis
necessarily rest upon factual issues that we may not
address. See Rivers v. Mansfield, 259 F. App’x 318, 320
(Fed. Cir. 2007) (“The decision to classify a veteran’s
condition under any particular diagnostic code, however,
is a question of fact beyond the reach of our jurisdiction.”).
And “[w]e lack jurisdiction to reweigh the evidence con-
sidered by the Board.” Thompson v. McDonald, 580 F.
App’x 901, 906 (Fed. Cir. 2014).
Mr. Sudranski’s remaining arguments similarly fail to
present a non-frivolous legal question. Mr. Sudranski
alleges that the Board issued a decision in 1982 describ-
ing his psychiatric disability that the Board failed to
follow in its 1986 decision, thereby offending the principle
of res judicata. See Appellant’s Br. 4–11. The relevant
Board decision in 1982 addressed Mr. Sudranski’s service
connection, not the nature and classification of his disabil-
ity, the latter of which forms the basis of the dispute here.
See Appellee’s Separate App. 39–43; see also id. at 118–19
5 Mr. Sudranski submitted a supplement to his in-
formal brief that contains all of his arguments. For ease
of reference, we treat and otherwise cite to his supple-
ment as his brief.
SUDRANSKI v. SHULKIN 7
(where Mr. Sudranski contests, inter alia, the classifica-
tion of his psychiatric disorder). Because res judicata
applies only when a prior decision decided “the very same
claim,” Whole Woman’s Health v. Hellerstedt, 136 S. Ct.
2292, 2305 (2016) (internal quotation marks and citation
omitted), Mr. Sudranski’s res judicata arguments are
inapposite.
Mr. Sudranski next avers that the Board legally erred
in its 1986 decision when it referred his TDIU claim to
the VA. See Appellant’s Br. 17–24; see also id. at 24–28
(raising related arguments). We previously considered
that argument and rejected it. See Sudranski, 423 F.
App’x at 988 (finding “no error” in the Board’s decision to
refer the TDIU issue to the VA). We see no reason to
reach a different conclusion now.
Finally, Mr. Sudranski raises other arguments not
discussed above. See generally Appellant’s Br. We con-
sidered them against the entire record and found them
unpersuasive.
CONCLUSION
It is unfortunate that Mr. Sudranski has not obtained
the disability benefits that he may deserve. Sudranski,
2016 WL 4467919, at *5 (explaining that it would have
weighed the evidence differently had it decided Mr. Su-
dranski’s claims in 1986). However, unless and until
Congress changes our subject matter jurisdiction over
appeals from the Veterans Court, we may not consider
whether a veteran deserves relief when an appeal pre-
sents arguments like those Mr. Sudranski raises here. 38
U.S.C. § 7292(d)(2). Accordingly, Mr. Sudranski’s appeal
from the U.S. Court of Appeals for Veterans Claims is
DISMISSED
COSTS
No Costs.