Heinemann v. Dept. Of Veterans Affairs ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARK HEINEMANN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7043
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 11-0932.
___________________________
Decided: April 10, 2012
___________________________
MARK HEINEMANN, of West Hollywood, California, pro
se.
AMANDA L. TANTUM, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and SCOTT D.
AUSTIN, Assistant Director. Of counsel on the brief were
HEINEMANN v. DVA 2
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
and AMANDA R. BLACKMON, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
__________________________
Before MOORE, CLEVENGER, and REYNA, Circuit Judges.
PER CURIAM.
Mr. Heinemann appeals a decision by the Court of
Appeals for Veterans Claims (Veterans Court) affirming
the Board of Veterans’ Appeals (Board’s) decision denying
his claim for service connection for a heart disorder,
seizures, a chronic lower back disorder, and ulcerative
colitis. Because the Veterans Court did not misinterpret
38 U.S.C. § 1154(b), we affirm.
BACKGROUND
Mr. Heinemann served on active duty in the U.S.
Army between 1968 and 1970. While his service over-
lapped with the Vietnam War, Mr. Heinemann was
stationed in Korea, as a sentinel on the perimeter of a
guard post in the Demilitarized Zone. App. 14. During
this time he received combat pay. Id.Before the Board, Mr. Heinemann argued that he
should be given the benefit of 38 U.S.C. § 1154(b), which
applies to “any veteran who engaged in combat with the
enemy in active service with a military . . . organization of
the United States during a period of war.” The Board,
however, found that Mr. Heinemann did not engage in
combat with the enemy during his service. App. 13. In
reaching this conclusion, the Board found that Mr.
Heinemann’s evidence was rebutted by his medical and
service records, which failed to indicate that Mr. Heine-
mann actually engaged in combat with the enemy during
his service. App. 15-16. For example, Mr. Heinemann
3 HEINEMANN v. DVA
claimed he was involved in a jeep accident resulting from
an enemy landmine, but the Board was unable to locate
any evidence of this accident in either Mr. Heinemann’s
service personnel records or service treatment records.
The Board also made credibility determinations based on
the fact that Mr. Heinemann’s recollection conflicted with
his service records. App. 16-25. As a result, the Board
ultimately denied Mr. Heinemann’s request for service
connection.
Mr. Heinemann appealed, and the Veterans Court af-
firmed the Board’s decision. Mr. Heinemann now appeals
to our court. We have jurisdiction pursuant to 38 U.S.C.
§ 7292.
DISCUSSION
The scope of our review of a Veterans Court decision
is limited by statute. We only have jurisdiction to “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.” 38
U.S.C. § 7292(c); see also 38 U.S.C. § 7292(a). We review
the Veterans Court’s legal determinations de novo.
Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).
Unless the appeal presents a constitutional issue, how-
ever, we do not have jurisdiction to review “a challenge to
a factual determination, or a challenge to a law . . . as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2).
Mr. Heinemann argues that the Veterans Court mis-
interpreted 38 U.S.C. § 1154(b). He claims that “the law
states every veteran who served during the Vietnam era,
no matter where they served” gets a presumption of
service connection. The plain language of § 1154(b),
however, requires that “the veteran must have engaged in
combat with the enemy.” Stone v. Nicholson, 480 F.3d
HEINEMANN v. DVA 4
1111, 1113 (Fed. Cir. 2007); see also 38 U.S.C. § 1154(b)
(“any veteran who engaged in combat with the enemy”).
“[A] veteran’s participation in combat is a prerequisite for
the application of § 1154(b). Thus, if a veteran is not
found to have engaged in combat with the enemy . . .
§ 1154(b) has no application.” Stone, 480 F.3d at 1113. It
is not enough that Mr. Heinemann served during the
Vietnam era; he also had to engage in combat with the
enemy to get the benefit of § 1154(b).
The Board found that Mr. Heinemann failed to estab-
lish that he engaged in combat during his service. The
Board thus concluded, and the Veterans Court affirmed,
that § 1154(b) did not apply. We cannot review the fac-
tual finding that Mr. Heinemann did not engage in com-
bat, and the court’s interpretation of the statute was not
otherwise erroneous. As a result, we affirm the Veterans
Court’s decision on the merits of the claim.
Mr. Heinemann also raises the possibility that he was
denied due process during the prosecution of his claim, as
evidenced by the fact that “[t]he Court of Veterans Ap-
peals violated the law several times” by allowing “the VA
Lawyers to get an extension months after the legal limits,
but refused to allow me an extension” despite his medical
needs. Claimant-Appellant Informal Br. at 1. It is within
our jurisdiction to review a factual determination if it
presents a constitutional issue. 38 U.S.C. § 7292(d)(2).
There is nothing in the record, however, indicating that
Mr. Heinemann requested and was denied an extension,
or that the government was granted an extension beyond
the legal limits. Likewise, Mr. Heinemann fails to explain
how any grant or denial of an extension prejudiced him so
as to deny him his due process rights. As such, we con-
clude Mr. Heinemann failed to establish a due process
violation. We have considered Mr. Heinemann’s addi-
5 HEINEMANN v. DVA
tional arguments on appeal and find them to be without
merit.
AFFIRMED
COSTS
No costs.