Whitledge v. Shinseki ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TOM WHITLEDGE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7085
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-1032, Judge Bruce E.
Kasold.
______________________
Decided: October 12, 2010
______________________
TOM WHITLEDGE of Beloit, Wisconsin, pro se.
RUSSELL A. SCHLTIS, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director. Of counsel on the
WHITLEDGE v. DVA 2
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before LINN, CLEVENGER, and PROST, Circuit Judges.
PER CURIAM.
Tom Whitledge appeals a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the denial of his application for De-
partment of Veterans Affairs (“VA”) disability benefits by
the Board of Veterans’ Appeals (“Board”). Whitledge v.
Shinseki, No. 09-1032, 2010 WL 1140975 (Vet. App. Mar.
25, 2010). Because this court lacks jurisdiction over
Whitledge’s appeal, the court dismisses the appeal.
BACKGROUND
In July 2005, Whitledge submitted an application to a
regional office of the VA requesting VA disability benefits
for a mental illness. To establish that he is a veteran
eligible to receive VA benefits, Whitledge initially as-
serted that he had served in the Air Force for less than a
year in the mid-1970s, during which he claimed to have
flown prisoners of war from Vietnam to the United States.
He later claimed that he had instead served in the Army
and that he had been awarded the Congressional Medal of
Honor for his actions in Vietnam.
When the regional office contacted him regarding his
application, Whitledge stated that he did not have any
evidence confirming his military service. The regional
office attempted to verify Whitledge’s claims, but neither
the Air Force, the Army, nor the National Personnel
Records Center could confirm that Whitledge had served
in any branch of the armed forces, and his name could not
3 WHITLEDGE v. DVA
be found in the list of recipients of the Congressional
Medal of Honor. The regional office notified Whitledge
that it was unable to find any record of his service and
offered him another opportunity to submit evidence
demonstrating that he had served in the military. In
response, Whitledge provided the regional office the name
of a person he believed could verify his service. The
record indicates that the regional office contacted this
person at least twice but never received a response.
In October 2007, the regional office rejected
Whitledge’s application, finding that he failed to establish
that he is a veteran. Whitledge appealed the decision of
the regional office to the Board. The Board affirmed the
regional office’s decision, concluding that the regional
office had satisfied its obligation to assist Whitledge in
obtaining the necessary records and that Whitledge had
provided insufficient evidence of military service.
Whitledge’s subsequent appeal of the Board’s decision to
the Veterans Court was also unsuccessful, the Veterans
Court finding that the Board did not clearly err when it
determined that Whitledge had not proven that he is a
veteran and therefore was not eligible to receive VA
disability benefits. Whitledge timely sought review of the
Veterans Court’s decision in this court.
DISCUSSION
Although Whitledge asserts on appeal that the deci-
sion of the Veterans Court involved the interpretation of a
statute or regulation and addressed constitutional issues,
he has not identified a statute or regulation he believes
the Veterans Court misinterpreted or a constitutional
issue he contends the Veterans Court improperly decided
and none are apparent in its decision. The sole issue
decided by the Veterans Court—whether the Board com-
mitted clear error by finding that Whitledge lacked the
WHITLEDGE v. DVA 4
requisite military service to be eligible for VA disability
benefits—is a question of fact. See Talon v. Brown, 999
F.2d 514, 516-17 (Fed. Cir. 1993) (noting that the nature
and extent of military service is a question of fact). Ex-
cept to the extent an appeal presents a constitutional
issue, this court “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.” 38
U.S.C. § 7292(d)(2). Because the appeal presented is
outside this court’s authority to review, the court has no
choice but to dismiss the appeal for lack of jurisdiction.
DISMISSED
COSTS
Each party shall bear its own costs.