Lee v. Gibson , 566 F. App'x 930 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM LEE, JR.,
Claimant-Appellant,
v.
SLOAN D. GIBSON, Acting Secretary of Veterans
Affairs,
Respondent-Appellee.
______________________
2014-7036
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2973, Judge Kenneth B. Kra-
mer.
______________________
Decided: June 5, 2014
______________________
WILLIAM LEE, JR., of Anoka, Minnesota, pro se.
RYAN M. MAJERUS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC. With him on the brief were
STUART F. DELERY, Assistant Attorney General, ROBERT
E. KIRSCHMAN, JR., Director, and MARTIN F. HOCKEY, JR.,
Assistant Director. Of counsel on the brief were DAVID J.
BARRANS, Deputy Assistant General Counsel, and
2 LEE v. GIBSON
MEGHAN D. ALPHONSO, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC.
______________________
Before NEWMAN, REYNA, and HUGHES, Circuit Judges.
PER Curiam.
William Lee, Jr. appeals from the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”). The Veterans Court affirmed the
Board of Veterans’ Appeals’ (“Board”) decision (1) denying
Mr. Lee entitlement to an earlier effective date for disabil-
ity benefits due to his post-traumatic stress disorder
(“PTSD”) and (2) finding no clear and unmistakable error
in a November 1980 Veteran’s Affairs (“VA”) decision.
BACKGROUND
Mr. Lee served in the U.S. Marine Corps from June
1966 to April 1969, including service in Vietnam. In
1980, Mr. Lee sought disability benefits from the VA for
“delayed stress neurosis.” The VA regional office denied
Mr. Lee’s claim, stating “such a disability is not shown by
the evidence of record.” Mr. Lee did not appeal the re-
gional office’s decision and it became final.
In October 2004, Mr. Lee sought to reopen his disabil-
ity claim. The regional office granted his claim and
eventually awarded Mr. Lee a 50% disability rating for
PTSD, with an effective date of May 6, 2004. In Novem-
ber 2005, Mr. Lee sought to revise the 1980 regional office
decision, arguing that the regional office made a clear and
unmistakable error when it denied his claim. The region-
al office found no such error and declined to revise the
1980 decision.
In a July 2011 decision, the Board agreed that May 6,
2004 was the correct effective date for Mr. Lee’s PTSD
claim and that there was no clear and unmistakable error
LEE v. GIBSON 3
in the regional office’s 1980 decision. Mr. Lee appealed to
the Veterans Court.
Regarding his effective date, Mr. Lee argued that cer-
tain private medical records as well as letters he sent to
the VA prior to 2004 supported granting an earlier effec-
tive date. Mr. Lee asserted that his letters should have
been treated as informal requests for disability benefits.
The Veterans Court noted that the VA may accept infor-
mal requests for disability benefits under 38 U.S.C.
§3.155(a). Such a request must be in writing and demon-
strate “an intent to apply for benefits” and “an identifica-
tion of the benefits sought.” Brokowski v. Shinseki, 23
Vet.App. 79, 83 (2009). Applying that standard here, the
court agreed with the Board that Mr. Lee’s medical rec-
ords and letters failed to demonstrate an intent to apply
for benefits. Thus, the court affirmed the Board’s deci-
sion regarding Mr. Lee’s effective date.
Mr. Lee next argued that the regional office clearly
and unmistakably erred in its 1980 decision because
evidence in existence at the time demonstrated his enti-
tlement to disability benefits. For support, Mr. Lee
pointed to medical records prior to 1980, a newspaper
article published in that same year that described his
condition, and records from the Veteran’s Center in St.
Paul, MN. The Veterans Court noted that its review of a
Board decision regarding a clear and unmistakable error
is limited to whether the decision is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law . . . and whether it is supported by an adequate
statement of reasons or bases.” See 38 U.S.C.
§ 7261(a)(3)(A); 38 U.S.C. § 7104(d)(1). The court first
noted that the evidence proffered by Mr. Lee was not part
of the record in 1980. The record did include evidence
that a VA doctor found Mr. Lee to “not have a psychiatric
diagnosis nor [to] warrant one” in June 1980. The court
concluded that Mr. Lee raised a disagreement about how
to weigh the evidence of record, rather than a clear and
4 LEE v. GIBSON
unmistakable error. As such, the court affirmed the
Board’s decision. Mr. Lee appealed and argues we have
jurisdiction under 38 U.S.C. § 7292.
DISCUSSION
This court’s review of a Veterans Court decision is
limited to “relevant questions of law.” 38 U.S.C.
§ 7292(d)(1). With the exception of constitutional issues,
we may not review factual determinations or the applica-
tion of law to fact. See 38 U.S.C. § 7292(d)(2). We review
Veterans Court legal decisions de novo.
A VA final decision is “subject to revision on the
grounds of clear and unmistakable error.” 38 U.S.C.
§ 5109A. To establish a clear and unmistakable error, a
veteran must show:
(1) Either 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,
(2) The error must be “undebatable” and the sort
“which, had it not been made, would have
manifestly changed the outcome at the time it
was made,” and
(3) A determination that there was CUE must be
based on the record and the law that existed at
the time of the prior adjudication in question.
Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008).
On appeal, Mr. Lee suggests that he is entitled to an
earlier effective date for his PTSD claim. Mr. Lee does
not argue that the Veterans Court misinterpreted a law
or regulation in denying him an earlier effective date.
Nor do we discern a legal error in the lower court’s opin-
ion. Because there is no legal error asserted, and because
we do not have jurisdiction over the application of the law
LEE v. GIBSON 5
to the facts of this case, we lack jurisdiction over Mr. Lee’s
arguments regarding an earlier effective date.
Mr. Lee also argues that the VA regional office made
a clear and unmistakable error in denying his claim for
benefits in 1980. Mr. Lee argues that the VA overlooked:
medical records from 1977 indicating Mr. Lee’s PTSD-like
symptoms; a newspaper article, published in 1980, that
described Mr. Lee’s struggle with PTSD; records from
meetings held at the St. Paul Veteran’s Center; work
related problems; and various private medical records.
Mr. Lee argues that, by overlooking these pieces of evi-
dence, the VA committed a clear and unmistakable error.
The Board found that this evidence was not part of
the record at the time of the regional office’s decision and,
thus, could not form the basis for a clear and unmistaka-
ble error. See Willsey, 535 F.3d at 1371. The Veterans
Court agreed and also noted that the record included
evidence that a June 1980 VA doctor found Mr. Lee not to
have psychiatric problems at that time. Because some
record evidence supported the Board’s decision and be-
cause Mr. Lee only pointed to non-record evidence, the
Veterans Court found that Mr. Lee had not raised an
“udebateble” error. Id. The Veterans Court’s conclusion
is based upon an application of the law to the facts of this
case. As such, it is beyond our jurisdiction and we dismiss
Mr. Lee’s appeal.
DISMISSED