Johnson v. Shinseki ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7060
JOHN C. JOHNSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
John C. Johnson, of Las Vegas, Nevada, pro se.
Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With her on
the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Donald E. Kinner, Assistant Director. Of counsel on the brief were Michael J.
Timinski, Deputy Assistant General Counsel, and Christa A. Childers, Attorney, Office of
the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Mary J. Schoelen
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7060
JOHN C. JOHNSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in
06-2212, Judge Mary J. Schoelen.
____________________________
DECIDED: July 10, 2009
____________________________
Before NEWMAN, LOURIE, and RADER, Circuit Judges.
PER CURIAM.
DECISION
John C. Johnson appeals from the final decision of the Court of Appeals for
Veterans Claims (the “Veterans Court”) affirming the denial of an earlier effective date
for his claim for service connection for diabetes mellitus by the Board of Veterans’
Appeals (the “Board”). Johnson v. Shinseki, No. 06-2212 (Vet. App. Jan. 28, 2009).
Because Johnson is appealing factual determinations not within our jurisdiction, we
dismiss.
BACKGROUND
Johnson served on active duty in the U.S. Marine Corps from July 1962 to
October 1966 and was exposed to Agent Orange during his service. The Department of
Veterans Affairs (the “VA”) received his initial claim for service connection for diabetes
mellitus, which was dated May 8, 2002, on May 31, 2002. In January 2003, a VA
regional office awarded Johnson service connection for diabetes mellitus and assigned
a disability rating of 20 percent, effective May 8, 2001.
On appeal, the Board denied an earlier effective date, finding that Nehmer v.
United States Veterans’ Administration, 712 F. Supp. 1404 (N.D. Cal. 1989), did not
entitle Johnson to an earlier effective date. Nehmer invalidated a VA regulation that
denied service connection for all diseases but chloracne following exposure to Agent
Orange. Under a new regulation implementing the Nehmer decision, 38 C.F.R. § 3.816,
diabetes mellitus was added as a disease presumptively caused by in-service exposure
to Agent Orange with an effective date of May 8, 2001. The Board noted that Johnson’s
claim was not received until May 31, 2002, and thus fell under 38 C.F.R. § 3.816(c)(4),
which requires the effective date to be determined under 38 C.F.R. §§ 3.114 and 3.400.
Under 38 C.F.R. § 3.114(a)(3), the Board concluded that an effective date prior to May
8, 2001, was not warranted.
Johnson appealed to the Veterans Court, arguing again that Nehmer required the
VA to award him an effective date prior to May 8, 2001, for service connection for
diabetes mellitus. On January 28, 2009, the Veterans Court upheld the Board. Like the
Board, the Veterans Court stated that although Johnson was a Nehmer class member,
he was not entitled to an earlier effective date under 38 C.F.R. § 3.816(c)(1) or (c)(2)
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because he did not have a claim for service connection for diabetes mellitus pending
before May 8, 2001. The Veterans Court then reviewed the application of 38 C.F.R.
§ 3.114, as prescribed under 38 C.F.R. 3.816(c)(4), and determined that the effective
date of May 8, 2001 was correct. The Veterans Court found Johnson’s other
arguments, including violations of the First, Fifth, and Ninth Amendments to the U.S.
Constitution and improper exclusion of documents from the record, to be meritless.
Johnson timely appealed the Veterans Court’s decision to this court. We have
jurisdiction pursuant to 38 U.S.C. § 7292.
DISCUSSION
The scope of our review in an appeal from a decision of the Veterans Court is
limited to the “validity of a decision of the [Veterans Court] on a rule of law or of any
statute or regulation . . . or any interpretation thereof (other than a determination as to a
factual matter) that was relied on by the [Veterans Court] in making the decision.” 38
U.S.C. § 7292(a). We must decide “all relevant questions of law” and must set aside
any regulation or interpretation thereof “other than a determination as to a factual
matter” that we find “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a
statutory right; or (D) without observance of procedure required by law.” 38 U.S.C.
§ 7292(d)(1). Except for an appeal that presents a constitutional issue, we 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).
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In the instant action, Johnson raises a number of allegations of wrongdoing in his
briefing but fails to provide any argument that can serve as a basis for our jurisdiction.
He argues that the effective date assigned to his claim for service connection for
diabetes mellitus was incorrect under Nehmer. But rather than alleging legal error,
Johnson primarily focuses on the Veterans Court’s exclusion of medical and historical
evidence relating to herbicide poisoning that he contends establish his right to an earlier
effective date, a factual challenge that does not fall within our jurisdiction. 38 U.S.C.
§ 7292(d)(2). To the extent that he argues that Nehmer was misapplied to the facts of
his case, we do not have jurisdiction to review that issue either. Id.; see also Wells v.
Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (citing same in finding a challenge to an
evidentiary ruling by the Veterans Court to be outside of our jurisdiction). Furthermore,
the Veterans Court did not purport to decide any constitutional issues, and Johnson’s
allegations of violations of his First, Fifth, and Ninth Amendment rights on appeal are
generalized grievances of unfair treatment, many of which are unrelated to his claim for
an earlier effective date. Because his assertions do not raise genuine constitutional
issues, they also do not present an opportunity for our review of the facts or application
of law or regulation to fact. 38 U.S.C. § 7292(d)(2); see also Helfer v. West, 174 F.3d
1332, 1335 (Fed. Cir. 1999) (“[The] characterization of that question as constitutional in
nature does not confer upon us jurisdiction that we otherwise lack.”).
Thus, Johnson’s appeal does not challenge the validity of any statute or
regulation, nor does his appeal raise any genuine constitutional issue that could form
the basis for our jurisdiction. Accordingly, we dismiss.
COSTS
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No costs.
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