King v. Shinseki , 430 F. App'x 890 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EARLEE KING,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7133
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 07-1214, Chief Judge William
P. Greene, Jr.
__________________________
Decided: July 21, 2011
__________________________
JOHN F. CAMERON, JR., of Montgomery, Alabama, ar-
gued for claimant-appellant.
JACOB A. SCHUNK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were TONY WEST, Assis-
KING v. DVA 2
tant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. On the
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, LINN and PROST, Circuit
Judges.
PROST, Circuit Judge.
Earlee King appeals from the United States Court of
Appeals for Veterans Claims’ (“Veterans Court”) decision
affirming the decision of the Board of Veterans’ Appeals
(“Board”) establishing May 15, 2000 as the effective date
for Mr. King’s benefits award. See King v. Shinseki, 23
Vet.App. 464, 471 (2010). Mr. King argues that the
Veterans Court erred by failing to require an earlier
effective date based on March 1995 and June 1997 com-
munications between Mr. King and medical examiners at
the Department of Veterans Affairs (“VA”). Because we
find that the Veterans Court committed no reversible
legal error in affirming the May 15, 2000 effective date,
and since all other appealed issues extend beyond our
jurisdiction, we affirm.
I. BACKGROUND
Mr. King served in the United States Army from Feb-
ruary 1980 to October 1983. Believing he had schizo-
phrenia, Mr. King applied in February 1992 for service-
connected benefits to a Veterans Affairs Regional Office
(“RO”). The RO denied this claim, however. After an
appeal, the Board also denied the claim (in August 1994).
Mr. King chose not to appeal the Board’s decision to the
Veterans Court. As such, the adjudication became final.
3 KING v. DVA
On May 15, 2000, Mr. King sought to formally reopen
his claim for service connection, providing as a basis
medical records generated during March 1995 and June
1997 visits to a VA hospital. The Board ultimately re-
opened the claim, finding that Mr. King had presented
new and material evidence since the initial 1994 Board
decision. In 2004, the RO granted Mr. King a service
connection for schizophrenia with a 100% disability
rating, effective May 15, 2000 (the date Mr. King formally
applied to reopen his claim).
Mr. King, however, believed that he was entitled to an
earlier effective date because of certain communications
he made to the VA medical examiners during his March
1995 and June 1997 hospital visits. In particular, Mr.
King believed his communications constituted “informal
claims” under the VA regulations. Therefore, he appealed
the RO’s decision to the Board. The Board denied Mr.
King’s request for an earlier effective date because the
record “d[id] not include any communication from the
veteran or his representative received prior to May 15,
2000, that may reasonably be construed as an indication
that he was seeking to reopen his claim for service con-
nection.” A Veterans Court panel affirmed, concluding
that none of the records or other evidence associated with
Mr. King’s March 1995 and June 1997 medical visits
showed that Mr. King possessed the necessary intent
required by the VA regulations to warrant an earlier
effective date. See King, 23 Vet.App. at 471.
Mr. King timely appealed the Veterans Court’s deci-
sion.
KING v. DVA 4
II. DISCUSSION
This court’s jurisdiction to review decisions by the
Veterans Court is limited. We have exclusive jurisdiction
“to review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof . . . and
to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). Absent a constitutional issue, we lack jurisdic-
tion to 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).
A. 38 C.F.R. § 3.155(A)
Mr. King asks us to decide whether he is entitled to
an effective date before May 15, 2000, which is the date
he filed his request to reopen the final adjudication. The
effective date for a benefits award stemming from a
veteran’s request to reopen a final adjudication is typi-
cally “the date that the request to reopen was filed.”
Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010)
(citing 38 U.S.C. § 5110(a)). The VA regulations, how-
ever, permit claimants to obtain an earlier effective date
in certain circumstances. For instance, under 38 C.F.R.
§ 3.155(a), “[a]ny communication or action, indicating an
intent to apply for one or more benefits” can qualify as an
“informal claim” so long as that claim “identif[ies] the
benefit sought” and is made by “a claimant, his or her
duly authorized representative, a Member of Congress, or
some person acting as next friend of a claimant who is not
sui juris.” Under this court’s precedent, a communication
qualifies as an informal claim pursuant to § 3.155(a) if
that communication (1) is written; (2) indicates an intent
to apply for benefits; and (3) identifies the benefits
sought. Rodriguez v. West, 189 F.3d 1351, 1354 (Fed.
5 KING v. DVA
Cir.1999). If these requirements are met, the date of the
informal claim can serve as the effective date for the
benefits award provided that the claimant timely submits
an application form to the VA in accordance with the
regulation. See 38 C.F.R. § 3.155(a).
On appeal, Mr. King argues that he asserted an in-
formal claim for benefits under 38 C.F.R. § 3.155(a)
during both his March 1995 and June 1997 medical visits
to the VA hospital and is thus entitled to a March 1995 or
June 1997 effective date. While neither Mr. King nor any
of the other entities listed in § 3.155(a) who may file on
behalf of Mr. King submitted a written communication to
the VA hospital staff during these visits, Mr. King argues
that he satisfied § 3.155(a) because he communicated his
intent to file a claim to the VA medical examiners who
then recorded the contents of these communications in
their written reports.
In particular, the report from the March 1995 visit
states that Mr. King “is N[on-]S[ervice-]C[onnected] but is
trying.” The June 1997 report states that the “[v]eteran
wants to file a claim for service connected disability.” If
these notes show that Mr. King intended to file a claim
for benefits during his VA hospital visits, as opposed to
merely informing the medical examiners of his intent to
file a claim in the future, it might be argued that he could
enjoy March 1995 or June 1997 as his effective date
instead of May 15, 2000.
As the Veterans Court explained, the Board did not
directly address the March 1995 and June 1997 visits in
its opinion. King, 23 Vet.App. at 472. The Board simply
stated that the record “d[id] not include any communica-
tion from the veteran or his representative received prior
to May 15, 2000, that may reasonably be construed as an
KING v. DVA 6
indication that he was seeking to reopen his claim for
service connection.” The Veterans Court did discuss the
medical visits, however, characterizing Mr. King’s com-
munications to the VA examiners as mere “wish[es] or
desire[s] to obtain service connection.” Id. at 471. The
court concluded that Mr. King’s statements that he “was
‘trying’ to obtain service connection and ‘wanted to file’ for
service connection’ . . . failed to manifest the requisite
intent to reopen a previously denied schizophrenia ser-
vice-connection claim.” Id. at 469. As such, the court held
that the Board’s decision setting May 15, 2000 as the
effective date was not arbitrary and capricious. Id.
As evident in the Veterans Court’s analysis, determin-
ing whether Mr. King’s communications with VA examin-
ers support a finding of intent under § 3.155(a) requires
considering the facts in the record and discerning what
Mr. King was thinking when he visited the VA hospital.
We lack jurisdiction to make findings regarding these
fact-based issues and, therefore, cannot upset the Veter-
ans Court’s intent ruling. See 38 U.S.C. § 7292(d)(2). As
a result, we cannot award Mr. King an effective date prior
to May 15, 2000 based on his argument that he had the
intent necessary to file an informal claim under § 3.155(a)
in March 1995 or June 1997.
In addition to the intent argument, Mr. King asserts
that the Veterans Court erred because it interpreted
§ 3.155(a) to only permit the veteran himself (or one of the
other entities listed in the provision who can file on behalf
of the veteran) to satisfy the writing requirement. See
Rodriguez v. West, 189 F.3d at 1355 (holding that a com-
munication can only qualify as an informal claim under
§ 3.155(a) if in writing). Under such an interpretation, a
writing created by a person not listed in § 3.155(a), such
as a VA doctor, arguably would not qualify as an informal
7 KING v. DVA
claim under the regulation even if it accurately summa-
rized the veteran’s communications. 1 The Veterans
Court’s interpretation is problematic for Mr. King because
the VA medical examiners are the individuals who cre-
ated the writings that Mr. King now asserts as his infor-
mal claim.
While we have jurisdiction to resolve this matter be-
cause it involves a purely legal interpretation of a regula-
tion, see 38 U.S.C. § 7292(c), we decline to exercise that
jurisdiction. “[A]s an appellate court (where our jurisdic-
tion permits), ‘[w]e sit to review judgments, not opinions.’”
Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed. Cir. 2004).
Therefore, “if our decision cannot affect the judgment of
the court below, because there was no legal error in the
judgment itself, there is no basis for reversal.” Id.Here, a holding that the Veterans Court misconstrued
§ 3.155(a) in the manner proposed by Mr. King would not
impact the court’s finding that Mr. King lacked an intent
to file an informal claim before May 15, 2000. Indeed, the
intent element and the writing element each require their
own, independent analyses. Put differently, even if we
agreed with Mr. King and concluded that a writing pro-
duced by a medical examiner could qualify as an informal
claim under § 3.155(a), Mr. King’s effective date of May
15, 2000 would not change because of the Veterans
Court’s intent finding. As mentioned, the Veterans
Court’s intent finding must stand because we lack juris-
diction to review it. Because a ruling on who can write an
informal claim under § 3.155(a) would not impact the
1 It is unclear whether the Veterans Court inter-
preted § 3.155(a) in the manner Mr. King alleges, but we
will assume it did for purposes of this appeal.
KING v. DVA 8
ultimate judgment in this case (i.e., that May 15, 2000 is
the effective date), we decline to address this issue.
B. 38 C.F.R. § 3.157Next, Mr. King challenges the Veterans Court’s inter-
pretation of 38 C.F.R. § 3.157, another VA regulation
permitting an earlier effective date based on the filing of
an informal claim. This provision permits a medical
report itself to qualify as an informal claim in certain
circumstances. See 38 C.F.R. § 3.157. On appeal, Mr.
King does not argue that the medical reports produced
during the March 1995 and June 1997 VA hospital visits
meet the requirements of § 3.157. Instead, Mr. King
argues that the Veterans Court erroneously construed
§ 3.157 such that it is the only regulation under which a
veteran can rely on a medical record to support an infor-
mal claim. We have jurisdiction to resolve this issue
because it involves a purely legal interpretation of a
regulation. See 38 U.S.C. § 7292(c).
Nothing in the Veterans Court opinion suggests that
the court construed § 3.157 as Mr. King alleges. Instead,
the court’s own analysis under § 3.155 indicates that it
did not view § 3.157 as the only regulation permitting
medical reports to support informal claims. Indeed, when
analyzing intent under § 3.155, the court considered at
length the medical reports from the March 1995 and June
1997 VA hospital visits. Therefore, we reject Mr. King’s
§ 3.157 argument.
C. Board’s Consideration of March 1995 and June 1997
Hospital Visits
Finally, Mr. King argues that the Board did not con-
sider his March 1995 and June 1997 visits to the VA
9 KING v. DVA
hospital when setting May 15, 2000 as the effective date.
Therefore, according to Mr. King, the Veterans Court had
no findings on this issue to review. As a result, Mr. King
asserts that the Veterans Court’s conclusions regarding
the VA hospital visits (e.g., that Mr. King lacked intent
under § 3.155) constituted initial, and thus improper,
factual findings. In support of its argument, Mr. King
relies on Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir.
2000), which states that the “statutory provisions [apply-
ing to veterans] are consistent with the general rule that
appellate tribunals are not appropriate fora for initial fact
finding.” For the reasons stated below, we reject Mr.
King’s argument.
As acknowledged by the Veterans Court, the Board
did not specifically mention Mr. King’s March 1995 and
June 1997 visits to the VA hospital in its opinion. King,
23 Vet.App. at 472. The Board generally stated, however,
that the record “d[id] not include any communication from
the veteran or his representative received prior to May
15, 2000, that may reasonably be construed as an indica-
tion that he was seeking to reopen his claim for service
connection.” It is undisputed that the record before the
Board contained the medical reports created during Mr.
King’s hospital visits. The Board is presumed to have
considered all evidence contained in the record. See
Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
2007) (Board’s failure to mention evidence in opinion does
not overcome presumption that Board considered the
evidence). Because the record before the Board contained
the March 1995 and June 1997 medical reports, we must
presume that the Board considered these reports and that
its ultimate judgment setting the effective date at May
15, 2000 included a finding that these reports did not
provide a basis for an earlier effective date.
KING v. DVA 10
The Veterans Court found no error in the Board’s de-
cision to set the effective date at May 15, 2000. King, 23
Vet.App. at 472. The Veterans Court did, however, elabo-
rate on the medical records issue, explaining that these
records do not undermine the Board’s conclusions. Id. at
470-71. Determining whether these elaborations rise to
the level of initial fact findings requires a comparison
between the Board’s findings and the Veterans Court’s
findings. We lack jurisdiction to conduct this fact-based
analysis. See 38 U.S.C. § 7292(d)(2).
Mr. King attempts to couch his argument that the
Veterans Court made initial factual findings argument as
purely legal. In particular, Mr. King argues that had the
“Veterans Court applied the correct legal standard for
judicial review, it would have concluded that the Board’s
finding of fact on the issue of whether Mr. King filed a
claim to reopen prior to May 2000 [was] arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law.” We could only reach this conclusion,
however, after comparing the Board and Veterans Court
findings in the manner discussed in the previous para-
graph. Because Mr. King’s proposed legal argument
ultimately reduces to a fact-based analysis, we lack
jurisdiction to address this matter under 38 U.S.C.
§ 7292. See Cook v. Principi, 353 F.3d 937, 937-38 (Fed.
Cir. 2003) (finding no jurisdiction because review of issue
“ultimately reduce[d] to an application of the law to facts”
where veteran “present[ed] his argument as a legal prem-
ise couched in terms of statutory interpretation”).
III. CONCLUSION
Because we find that the Veterans Court committed
no reversible legal error in affirming the May 15, 2000
effective date, and since all other appealed issues are
11 KING v. DVA
beyond our jurisdiction, we affirm.
COSTS
Each party shall bear its own costs.
AFFIRMED