Lee v. Shinseki ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CLIFFORD L. LEE, II,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7165
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-1119, Judge Robert N.
Davis.
____________________________
Decided: March 8, 2012
____________________________
CLIFFORD L. LEE, II, of Fayetteville, North Carolina,
pro se.
STEVEN M. MAGER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
LEE v. DVA 2
F. HOCKEY, JR., Assistant Director. Of counsel on the brief
was BRIAN D. GRIFFIN, General Attorney, United States
Department of Veterans Affairs, of Washington, DC. Of
counsel was MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel.
__________________________
Before LOURIE, LINN, and PROST, Circuit Judges.
PER CURIAM.
Clifford L. Lee, II, appeals from the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming in part and setting aside in
part the decision of the Board of Veterans’ Appeals
(“Board”) that Lee was not entitled to service connection
for his type II diabetes mellitus and remanding for fur-
ther development regarding Lee’s claim for service con-
nection for residuals of a right shoulder injury. Lee v.
Shinseki, No. 09-0119 (Vet. App. May 19, 2011). Because
we lack jurisdiction to review Lee’s appeal, we dismiss.
BACKGROUND
Lee served on active duty in the United States Army
from June 1983 to June 1986. Shortly after his discharge,
he filed a claim for service-connected disability for an
injury to his right shoulder. The 1986 VA medical exami-
nation report indicated that his right shoulder injury was
Lee’s “only complaint” at that time. The VA Regional
Office (“RO”) and the Board denied his claim. His later
attempt to reopen the claim was likewise denied, stating
that there was still no evidence of a current right shoulder
disability. He did not appeal that decision.
In 2004, Lee filed an original claim for service-
connected disability for diabetes mellitus type II, hyper-
tension, sleep apnea, residuals of a back injury, and
3 LEE v. DVA
residuals of a left knee injury. He was denied service-
connected disability for diabetes. The RO granted service
connection for hypertension, sleep apnea, residuals of a
back injury, and residuals of a left knee injury, assigning
an effective date of February 9, 2004 for each award. He
then filed a claim for an effective date prior to February
2004 for the grant of service-connected disability compen-
sation for his hypertension, the back disorder, and the left
knee condition, which was denied. He also submitted a
petition to reopen his claim for service-connected disabil-
ity for a right shoulder injury based on new and material
evidence, which was denied. He appealed all these
claims.
On May 29, 2008, the Board denied Lee’s claim for
service-connected disability for diabetes because there
was no nexus between that condition and his military
service; the Board reopened his claim for service connec-
tion for residuals of a right shoulder injury, but then
denied the claim due to a lack of nexus. The Board de-
termined that Lee was not entitled to an earlier effective
date for the grant of service-connected hypertension, back
injury, or a knee injury because there was no evidence
that he intended to apply for these benefits prior to Feb-
ruary 2004. Lee appealed this decision, but not the
determination regarding hypertension.
The Veterans Court affirmed the Board’s determina-
tion that Lee was not entitled to an earlier effective date
for residuals of a back injury and the knee injury, and
that he was not entitled to service connection for type II
diabetes. The Veterans Court set aside the Board’s deci-
sion regarding Lee’s claim for service connection for
residuals of a right shoulder injury, remanding for further
development. This appeal followed.
LEE v. DVA 4
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any inter-
pretation thereof [by the Veterans Court] . . . , and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” Id.§ 7292(c). We may not, however, absent a constitutional
challenge, “review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2). We there-
fore generally lack jurisdiction to review challenges to the
Board's factual determinations. See, e.g., Johnson v.
Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991).
Lee argues that the Veterans Court erred by consider-
ing the 2004 date as his date of entitlement for his claim
for service-connected right shoulder injury. In addition,
he argues that the court did not address all of the evi-
dence relating to his claim for service-connected diabetes
and improperly weighed the evidence submitted in sup-
port of his claims. He asks that this court determine that
the date of eligibility for entitlements on his claim for
service-connected right shoulder injury is June 1986 and
that his diabetes is service-connected.
The government responds that we lack jurisdiction to
review the Veterans Court decision in this case because
Lee simply reargues factual issues (or applications of law
to fact) regarding his diabetes claim and that the effective
date of the right shoulder injury claim was not decided
and is not properly before us. The government notes that
Lee did not identify any legal errors in the Veterans Court
decision.
5 LEE v. DVA
We agree with the government that we lack jurisdic-
tion. The Veterans Court did not determine the effective
date of his claim for right shoulder injury, as it was not at
issue on appeal. Instead, this claim was remanded to the
Board for further proceedings. As a consequence, there is
no final decision to review. See Winn v. Brown, 110 F.3d
56, 56 (Fed. Cir. 1997) (“This Court typically does not
have jurisdiction over Court of Veterans Appeals remands
because they are not final judgments.”); Cabot Corp. v.
United States, 788 F.2d 1539, 1542–43 (Fed. Cir. 1986).
There is no substantial risk that any error regarding the
effective date of Lee’s right shoulder disability will not
survive the pending remand to the Board. See Myore v.
Principi, 323 F.3d 1347, 1352 (Fed. Cir. 2003). This is
particularly true because the claim is still pending and
the Veterans Court did not determine any effective date
relating to his right shoulder injury claim.
With regard to Lee’s diabetes claim, his arguments
merely challenge the weight afforded the evidence. We
lack jurisdiction to review the weight given to evidence by
the Board and Veterans Court. E.g., Maxson v. Gober,
230 F.3d 1330, 1332 (Fed. Cir. 2000) (“The weighing of
this evidence is not within our appellate jurisdiction.”).
Because the decision of the Veterans Court is not final
and Lee’s fact-based challenges on appeal do not fall
within the scope of 38 U.S.C. § 7292, we dismiss Lee’s
appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.