Bejarano v. McDonald , 607 F. App'x 994 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY BEJARANO,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7034
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2463, Judge Alan G. Lance Sr.
______________________
Decided: June 11, 2015
______________________
ANTHONY BEJARANO, San Jose, CA, pro se.
JANA MOSES, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D.
AUSTIN; MARTIN JAMES SENDEK, DAVID J. BARRANS, Office
2 BEJARANO v. MCDONALD
of General Counsel, United States Department of Veter-
ans Affairs, Washington, DC.
______________________
Before LOURIE, DYK, and MOORE, Circuit Judges.
PER CURIAM.
Anthony R. Bejarano appeals a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming a decision by the Board of Veterans’
Appeals (“Board”). The Board concluded that Mr. Bejara-
no had not submitted new and material evidence to
reopen his claim for benefits for service-connected post-
traumatic stress disorder. We dismiss for lack of jurisdic-
tion.
BACKGROUND
Mr. Bejarano is a Vietnam-era veteran who served in
the Army beginning on March 4, 1968. During his service,
he had four periods of absences without leave (“AWOL”),
totaling 944 days. Faced with a court martial for a con-
tinuous AWOL of 29 months, Mr. Bejarano requested
discharge for the good of the service, allegedly stating
that he “hate[d] the Army” and would do almost “anything
. . . to get out.” On July 26, 1973, the request was ap-
proved, and he was discharged “under other than honora-
ble conditions.”
If a veteran receives a discharge under other than
honorable conditions, issued for an AWOL for a continu-
ous period of at least 180 days (the situation here), the
discharge bars a claim for veterans’ benefits unless there
are “compelling circumstances” to warrant the prolonged
absence. 38 C.F.R. § 3.12(c)(6). A “discharge [under other-
than-honorable conditions] is a bar to the payment of
benefits unless it is found that the person was insane at
BEJARANO v. MCDONALD 3
the time of committing the offense causing such discharge
. . . .” 38 C.F.R. § 3.12(b); see also 38 C.F.R. § 3.354(a).
In 1976, the veteran submitted a claim for disability
benefits for a cyst condition with the Department of
Veterans Affairs (“VA”) Regional Office (“RO”), which was
denied as barred by Mr. Bejarano’s other-than-honorable
discharge. Mr. Bejarano thereafter unsuccessfully sought
a discharge upgrade from the Army Discharge Review
Board. In November 1984, the VA denied Mr. Bejarano
JOBS program benefits because of his other-than-
honorable discharge. Mr. Bejarano did not appeal this
decision, and it became final.
In 2001, Mr. Bejarano filed a claim seeking benefits
for various injuries, and the VA denied it, apparently
relying on its November 1984 decision, which determined
the status of his discharge and his eligibility for benefits.
The VA informed Mr. Bejarano that he needed to submit
new and material evidence to reopen his November 1984
claim. Ultimately, while the Board acknowledged Mr.
Bejarano did submit new evidence, it refused to reopen
the claim on the ground that the November 1984 decision
was final, that the veteran’s discharge thus barred the
claim, and that the new evidence submitted did not
qualify as material evidence of insanity at the time of
committing the offense.
On appeal at the Veterans Court, Mr. Bejarano al-
leged errors in the Board’s conclusion that new and mate-
rial evidence had not been submitted on the issue of
insanity. The Veterans Court affirmed. 1
1 Mr. Bejarano also contended that the Board and
the VA’s hearing officers did not satisfy their duties to
notify and explain the applicable regulations. The Veter-
ans Court rejected his contentions, finding that he was
4 BEJARANO v. MCDONALD
DISCUSSION
Under 38 U.S.C. § 7292, we have jurisdiction to
review decisions of the Veterans Court on issues of law
but not on issues of fact or application of law to fact. See
Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed. Cir. 2012)
(citing Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir.
2002) (en banc)).
Under 38 C.F.R. § 3.156(a), a veteran may reopen a
final claim by submitting new and material evidence.
Material evidence is evidence that “relates to an unestab-
lished fact necessary to substantiate the claim.” 38 C.F.R.
§ 3.156(a). New and material evidence can be “neither
cumulative nor redundant of the evidence of record . . .
and must raise a reasonable possibility of substantiating
the claim.” Id.The new evidence submitted by Mr. Bejarano included
character references, statements explaining the challeng-
es he encountered during service, evidence that he suf-
fered from post-traumatic stress disorder (“PTSD”), expert
statements that Mr. Bejarano did not personally write the
statement that he “hate[d] the Army,” lay testimony
about Mr. Bejarano’s age, family hardship, mental issues,
and drug use, as well as testimony that he got married,
worked, and went on with his life after his discharge. It
was apparently unclear whether the evidence of PTSD or
mental issues related to the time of Mr. Bejarano’s AWOL
or only to some later time thereafter. The Board conclud-
ed that the “evidence merely confirms and elaborates
upon the essential facts of record at the time of the No-
either sufficiently notified by the Board and the VA’s
hearing officers or had actual knowledge of the basis for
his prior denials. Mr. Bejarano does not argue these
issues on appeal to this court.
BEJARANO v. MCDONALD 5
vember 1984 decision,” Appellee’s App. 17, and did not
show that he was insane at the time of the AWOL. On
appeal, the Veterans Court did not directly address this
issue, finding that it was not properly raised by the veter-
an at the Veterans Court because he submitted only a
“conclusory, unsupported statement in his opening brief.”
Id. at 2. Whether this contention was properly raised
presents a fact issue not within our jurisdiction.
The veteran thus raises no legal issues within our
jurisdiction.
DISMISSED
COSTS
No costs.