Stark v. McDonald , 669 F. App'x 556 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS L. STARK,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7074
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3549, Judge Coral Wong
Pietsch.
______________________
Decided: October 4, 2016
______________________
SEAN A. RAVIN, Coral Gables, FL, for claimant-
appellant.
COURTNEY D. ENLOW, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER; AMANDA BLACKMON, Y. KEN LEE,
2 STARK v. MCDONALD
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before O’MALLEY, BRYSON, and STOLL, Circuit Judges.
PER CURIAM.
Thomas Stark appeals the February 4, 2015 decision
of the Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the August 21, 2013 decision of the
Board of Veterans’ Appeals (“Board”). Stark v. McDonald,
No. 13-3549, 2015 WL 461601 (Vet. App. Feb. 4, 2015).
For the reasons below, we dismiss Mr. Stark’s appeal for
lack of jurisdiction.
BACKGROUND
Mr. Stark served in the United States Army from
March 1966 to April 1986. In July 1979, Mr. Stark was
involved in an automobile accident and sought treatment
for injuries to his lower back and left appendages. At that
time, Mr. Stark did not allege cervical spine pain, nor was
he diagnosed with any cervical spine condition.
In June 1986, Mr. Stark applied for entitlement to
disability benefits for various pains and injuries, includ-
ing back pain. Again, Mr. Stark did not report a cervical
spine injury. In February 1987, Mr. Stark was granted
entitlement to service connection for chronic low back
strain. At a September 1988 VA compensation and pen-
sion (“C&P”) examination, an examiner noted that Mr.
Stark reported mild pain in the back of his neck that had
started in 1979. At a January 1999 VA C&P examination,
an examiner noted that Mr. Stark reported cervical spine
pain that started “a few years ago,” and based on this
report, the examiner diagnosed Mr. Stark with cervical
spine disease with possible mild cord compression.
In July 2002, Mr. Stark submitted an informal claim
for benefits for a cervical spine disability, which he
STARK v. MCDONALD 3
claimed as secondary to his service-connected chronic low
back strain. In October 2002, the Regional Office denied
entitlement to service connection for Mr. Stark’s new
claim. Mr. Stark appealed, and in September 2007, the
Board affirmed the Regional Office’s decision. Mr. Stark
filed a medical opinion in August 2008 that connected the
in-service automobile accident to his cervical spine pain.
The parties then filed a joint motion for remand, which
was granted.
In support of his claim on remand, Mr. Stark submit-
ted two additional medical opinions. Despite these opin-
ions, in July 2011, a C&P examiner concluded that Mr.
Stark’s injuries were not connected to his service. The
Board again denied Mr. Stark’s entitlement to service
connection for a cervical spine disability in August 2013,
finding Mr. Stark’s reports of long-term neck problems
not credible because of conflicting prior statements and
his failure to report neck pain after the 1979 automobile
accident. Relying on the 2011 C&P examiner’s report, the
Board found that (1) the cervical spine symptoms did not
begin until 1998, (2) Mr. Stark failed to include cervical
spine disability claims in his 1986 application, (3) the VA
examinations prior to February 1998 did not uncover any
neck pain, and (4) Mr. Stark specifically denied neck pain
during private treatment in 1997.
Mr. Stark appealed the decision of the Board to the
Veterans Court. On February 4, 2015, the Veterans
Court found that the Board erred in its credibility finding
by not explaining why Mr. Stark’s failure to include neck
pain in his 1986 application for benefits diminished his
credibility. Stark, 2015 WL 461601, at *3–4. The Veter-
ans Court found the Board’s error to be non-prejudicial as
a whole, pursuant to 38 U.S.C. § 7261(b), and therefore
affirmed the Board’s decision. Id. at *4–5. Mr. Stark
appeals this decision.
4 STARK v. MCDONALD
DISCUSSION
Our ability to review a decision of the Veterans Court
is limited. We may review “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 have exclusive jurisdiction “to
review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof
brought under [38 U.S.C. § 7292], and to interpret consti-
tutional and statutory provisions, to the extent presented
and necessary to a decision.” Id. § 7292(c). Except to the
extent that an appeal presents a constitutional issue, we
“may not 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 agree with the Government that we do not have
jurisdiction over this appeal under § 7292(d)(2). An
interpretation of a statute or regulation occurs when its
meaning is elaborated upon by the court. Graves v.
Principi, 294 F.3d 1350, 1354–55 (Fed. Cir. 2002) (citing
Forshey v. Principi, 284 F.3d 1335, 1349 (Fed. Cir. 2002)
(en banc) (superseded on other grounds by statute, Pub. L.
No. 107–330, § 402(a), 116 Stat. 2820, 2832 (2002))).
Despite Mr. Stark’s assertions to the contrary, the Veter-
ans Court did not interpret § 7261(b)(2) in rendering its
decision here by elaborating on the meaning of the stat-
ute. The Veterans Court simply applied § 7261(b)(2) to
conduct its prejudicial error analysis, and concluded that
the Board had not committed prejudicial error. J.A. 13–
14. We further note that the parties did not argue for
differing interpretations of § 7261(b)(2) in their briefing
below.
Mr. Stark appeals the Veterans Court’s application of
law to the facts of this case, which is a matter over which
STARK v. MCDONALD 5
we lack jurisdiction. We accordingly dismiss Mr. Stark’s
appeal.
DISMISSED
COSTS
Each party shall bear its own costs.