Groves v. Dept. Of Veterans Affairs , 463 F. App'x 929 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GENE S. GROVES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7197
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 06-1252, Judge William P. Greene, Jr.
__________________________
Decided: February 13, 2012
___________________________
GENE S. GROVES, Shafter, Texas, pro se.
KIMBERLY, I. KENNEDY, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and PATRICIA M. MCCARTHY, Assistant Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
GROVES v. DVA 2
Assistant General Counsel, and MEGHAN D. HERNANDEZ,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before LINN, DYK, and O’MALLEY, Circuit Judges.
PER CURIAM.
Claimant Gene S. Groves (“Groves”) appeals a final
decision of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”), Groves v. Shinseki (“Final
Decision”), No. 06-1252, 2009 WL 4065045 (Vet. App. Nov.
25, 2009). The Veterans Court affirmed a Board of Veter-
ans’ Appeals (“Board”) decision finding no clear and
unmistakable error (“CUE”) in a September 1972 De-
partment of Veterans Affairs (“VA”) regional office (“RO”)
decision. We affirm.
BACKGROUND
Groves served in the United States Army from Janu-
ary 1970 to August 1971. In March 1971, Groves suffered
superficial fragment wounds in his right thigh and left
arm. In September 1971, based on initial medical exami-
nations, the RO determined that Groves had a shell
fragment right-thigh wound with no nerve involvement,
and thus awarded him service connection and a 10%
disability rating for a painful scar on his right thigh
under 38 C.F.R. § 4.118, diagnostic code (“DC”) 7804
(1971). Subsequent to this determination, Groves com-
plained of pain in his right thigh. An x-ray report showed
that there was a metallic fragment lying in the tissue of
Groves’s thigh, and a VA physician noted that the frag-
ment may have nicked Grove’s saphenous nerve.
In September 1972, Groves sought an increased dis-
ability rating from the RO for his right-thigh condition.
3 GROVES v. DVA
At that point, the RO recharacterized Groves’s injury as a
“shell fragment wound, right thigh, muscle g[rou]p XIV,”
Final Decision, 2009 WL 4065045, at *1 (alteration in
original), and awarded him a 10% disability rating under
38 C.F.R. § 4.73, DC 5314. The RO also awarded Groves a
separate 10% rating for an injury to the right saphenous
nerve under 38 C.F.R. § 4.124a, DC 8627, for a combined
rating of 20%.
In October 2003, Groves sought to revise the Septem-
ber 1972 RO decision based on CUE, alleging that the RO
impermissibly severed its previous finding of service
connection for a painful scar under DC 7804, and that it
did so without properly notifying him of this severance. 1
A severance occurs when it is “conclude[d] that a particu-
lar disability previously determined to have been incurred
in the line of duty was incurred otherwise.” Read v.
Shinseki, 651 F.3d 1296, 1300 (Fed. Cir. 2011). However,
Read held that service connection “is not severed simply
because the situs of a disability—or the Diagnostic Code
associated with it—is corrected to more accurately deter-
mine the benefit to which a veteran may be entitled.” Id.
at 1302.
In July 2004, the RO found no CUE because it was
within its discretion to recharacterize Groves’s injury
based on the additional medical evidence it had received,
and its decision had not resulted in a severance. The RO
1 38 C.F.R. § 3.105(d) provides in part: “When sev-
erance of service connection is considered warranted, a
rating proposing severance will be prepared setting forth
all material facts and reasons. The claimant will be
notified at his or her latest address of record of the con-
templated action and furnished detailed reasons therefor
and will be given 60 days for the presentation of addi-
tional evidence to show that service connection should be
maintained.”
GROVES v. DVA 4
concluded that the ratings action simply changed the
determination of the situs of Groves’s pain from the scar
on his right thigh to the underlying muscle and nerves.
Groves appealed this decision to the Board, which also
found no CUE. In re Groves, No. 03-03 067A (B.V.A. Dec.
1, 2005). On appeal, the Veterans Court held that “the
RO did not sever Mr. Groves’s award of service connec-
tion; rather, the RO corrected its prior decision to more
accurately reflect the state of Mr. Groves’s injury. . . .
Thus, because Mr. Groves’s rating was not reduced, nor
his award of service connection severed, the action taken
by the September 1972 RO constituted only a nonsubstan-
tive administrative act and not a severance action . . . .”
Final Decision, 2009 WL 4065045, at *3.
Groves timely appealed. We have jurisdiction pursu-
ant to 38 U.S.C. § 7292(a).
DISCUSSION
Under 38 U.S.C. § 7292(a), this court has jurisdiction
to review a decision of the Veterans Court only “with
respect to the validity of a decision of the Court on a rule
of law or of any statute or regulation . . . or any interpre-
tation thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
decision.” Absent 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).
Groves makes two primary arguments on appeal.
First, Groves alleges that there was CUE in his rating
under the 1972 RO decision, particularly in removing his
rating under DC 7804 for pain associated with the scar on
his right thigh. In reviewing the 1972 RO decision, the
Board concluded that “[w]hile arguably the 10 percent
rating [under DC 7804] for a tender scar should have also
5 GROVES v. DVA
remained in effect,” it was not the type of “undebatable
error” on “which reasonable minds could not differ” neces-
sary to find CUE. Groves, No. 03-03 067A, slip op. at 12.
This sort of factual determination or application of law to
fact is beyond our ability to review. See 38 U.S.C.
§ 7292(d)(2).
Second, Groves contends that the RO violated his
rights to notice by failing to provide him adequate notice
of a severance of service connection as required under 38
C.F.R. § 3.105(d). It is not at all clear that denying the
rating under DC 7804 (even if improper) would constitute
a severance since service connection for his right thigh
injury remained under the two other diagnostic codes. In
any event, if, as the Veterans Court and Board concluded,
there was no CUE in the elimination of the rating under
DC 7804 and recharacterizing Groves’s injury under other
rating provisions, there was also no severance and no
requirement of notice. See Read, 651 F.3d at 1300. The
Veterans Court explained that, under that view, in 1972
the RO had merely “corrected its prior decision to more
accurately reflect the state of Mr. Groves’s injury” and
that “the action taken by the September 1972 RO consti-
tuted only a nonsubstantive administrative act and not a
severance action.” Final Decision, 2009 WL 4065045, at
*3. Thus, because no severance had occurred, the right to
notice under 38 C.F.R. § 3.105(d) was not triggered.
Moreover, the Veterans Court also concluded that
Groves failed to demonstrate how the outcome of the 1972
RO decision would have been manifestly different had he
been provided the notice that he alleges was required. On
appeal, Groves argues only that, if he did fail to demon-
strate how the outcome would have been manifestly
different, his claim should have been dismissed without
GROVES v. DVA 6
prejudice to refiling under 38 C.F.R. § 20.1404(b). 2 Sec-
tion 20.1404(b) on its face, however, applies only to mo-
tions for revision of Board decisions based on CUE, not
CUE in an RO decision, and thus it does not apply here.
The Veterans Court’s determination that Groves failed to
demonstrate how the outcome of the 1972 RO decision
would have been manifestly different is a factual issue
that we do not have jurisdiction to review on appeal, and
provides an independent basis for our rejection of the
notice argument.
All of Groves’s other arguments are without merit or
present challenges to factual determinations, which we do
not have jurisdiction to review.
COSTS
No costs.
2 38 C.F.R. § 20.1404(b) provides: “The motion must
set forth clearly and specifically the alleged clear and
unmistakable error, or errors, of fact or law in the Board
decision, the legal or factual basis for such allegations,
and why the result would have been manifestly different
but for the alleged error. Non-specific allegations of fail-
ure to follow regulations or failure to give due process, or
any other general, non-specific allegations of error, are
insufficient to satisfy the requirement of the previous
sentence. Motions which fail to comply with the require-
ments set forth in this paragraph shall be dismissed
without prejudice to refiling under this subpart.”