Lopez, Jr. v. Nicholson ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-7197
GUADALUPE LOPEZ, JR.,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
____________________________
DECIDED: March 9, 2006
____________________________
Before MICHEL, Chief Judge, MAYER, and LOURIE, Circuit Judges.
PER CURIAM.
DECISION
Guadalupe Lopez, Jr. (“Lopez”) appeals from the final decision of the United
States Court of Appeals for Veterans Claims (the “Veterans Court”) sustaining the
denial by the Board of Veterans’ Appeals (the “Board”) of an effective date earlier than
May 3, 1988 for his service-connected post-traumatic stress disorder (“PTSD”), an
effective date earlier than September 9, 1994 for a 100 percent rating based on
unemployability due to his service-connected PTSD, and service connection for
peripheral neuropathy. Lopez v. Nicholson, No. 04-0073 (Vet. App. July 6, 2005)
(“Decision on Appeal”). Because Lopez only challenges the Board’s factual
determinations and the Veterans Court’s application of law to the facts of his case, we
dismiss his appeal for lack of jurisdiction.
BACKGROUND
Lopez, a Vietnam War veteran who served in the U.S. Marines from February
1967 to March 1970, filed a claim for disability benefits for service-connected PTSD in
June 1985. Decision on Appeal, slip op. at 2. The Veterans Administration1 (“VA”)
Regional Office (“RO”) denied the claim in July 1985 and Lopez did not appeal that
decision. Id. Lopez subsequently filed three other claims that gave rise to the present
appeal.
First, on May 3, 1988, Lopez again filed a claim for service connection for PTSD.
The claim was referred to the RO for appropriate development, and Lopez was
diagnosed as having PTSD on May 30, 1989. Id. In October 1989, the RO awarded
service connection for PTSD with a 10 percent evaluation, effective May 30, 1989. Id.
Lopez did not appeal that decision. Id. However, in August 2002, Lopez requested an
earlier effective date than May 30, 1989 for his service-connected PTSD. Id. The RO
denied the claim in September 2002, and Lopez appealed that decision to the Board.
Id., slip op. at 2-3. Second, in September 1993, Lopez filed a claim for increased
compensation based on unemployability due to his service-connected PTSD. Id., slip
op. at 2. In August 1995, the RO increased his rating for PTSD to 100 percent, effective
September 26, 1994. Id. Lopez appealed that decision to the Board, requesting an
earlier effective date than September 26, 1994. Id. Third, in August 1996, Lopez filed a
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claim for service connection for peripheral neuropathy. Id. The RO denied his claim in
April 1997, and Lopez appealed that decision to the Board. Id.
On November 1, 2003, the Board ruled in a single decision on the three issues
that Lopez had appealed. Id., slip op. at 3. The Board granted an earlier effective date
of May 3, 1988 for Lopez’s service-connected PTSD, granted an earlier effective date of
September 9, 1994 for the 100 percent rating based on unemployability due to his
service-connected PTSD, and denied service connection for peripheral neuropathy. Id.
Lopez then appealed to the Veterans Court. Id.
On July 6, 2005, the Veterans Court affirmed the Board’s decision, holding that
the Board’s determination regarding the effective date for Lopez’s service-connected
PTSD was not clearly erroneous. Id., slip op. at 4-5. The Veterans Court recognized
that under 38 U.S.C. § 5110(a)2 “the correct effective date for the award of service
connection for PTSD could be no earlier than the date of the claim” even though the
Board concluded that the onset of Lopez’s PTSD arose prior to Lopez’s May 3, 1988
claim. Id., slip op. at 4. The Veteran Court also held that the Board’s determination
regarding the appropriate effective date for the 100 percent rating based on
unemployability due to Lopez’s service-connected PTSD was not clearly erroneous
because the Board found that Lopez was employed full-time until September 9, 1994,
and that contemporaneous medical evidence indicated that he did not exhibit a 100
percent disability until he left his employment. Id., slip op. at 5. Finally, the Veterans
1
The Veterans Administration was renamed the Department of Veterans Affairs in
1988. Department of Veterans Affairs Act, Pub.L. No. 100-527, 102 Stat. 2635 (1988).
2
38 U.S.C. § 5110(a) provides that for a claim reopened after final adjudication,
the effective date for the grant of service connection “shall not be earlier than the date of
receipt of application therefor.”
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Court held that the Board did not err in denying Lopez’s claim for service connection for
peripheral neuropathy because Lopez did not provide a current diagnosis of peripheral
neuropathy, even though he was informed in a May 2003 letter that such a diagnosis
was required to establish entitlement to service connection for peripheral neuropathy.
Id. at 7. In so holding, the Veterans Court agreed with the Board that the Secretary of
Veterans Affairs (the “Secretary”) had complied with the duty to assist under 38 U.S.C.
§ 5103A and that there was no indication that additional relevant information existed
that needed to be added to Lopez’s VA claims folder. Id.
Lopez timely appealed to this court, and we have jurisdiction pursuant to 38
U.S.C. § 7292.
DISCUSSION
We have limited jurisdiction to review a decision of the Veterans Court. We
cannot, absent a constitutional issue, review a challenge to a factual determination or a
challenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. §
7292(d)(2) (2000). We may, however, review the validity of “a rule of law or of any
statute or regulation . . . or any interpretation thereof . . . that was relied on by the
[Veterans] Court in making the decision.” 38 U.S.C. § 7292(a) (2000). Such legal
determinations of the Veterans Court are reviewed without deference. Prenzler v.
Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).
On appeal, Lopez argues that the Veterans Court “overlooked applicable facts
addressed in [the Board’s] decision,” including his service in Vietnam, medical records
indicating that he had received multiple shell fragment wounds in June 1968, an April
1970 rating decision awarding service connection for disabilities related to that injury,
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and 1971 VA medical records diagnosing Lopez with a psychiatric problem. Further,
Lopez contends that the Veterans Court “overlooked . . . undisputed facts in [the
Board’s] decision,” including the VA’s 1989 psychiatric evaluation of Lopez indicating
that he suffered from PTSD, alcohol abuse, and personality with paranoid features, and
an October 1989 rating decision granting service connection for PTSD. In addition,
Lopez challenges the Veterans Court’s application of the law to the facts of his case,
asserting that that court “ignored Pertinent Law and Regulations.” Finally, as to his
claim for service connection for peripheral neuropathy, Lopez argues that the Veterans
Court failed to consider his argument that PTSD was linked with peripheral neuropathy,
and erred in concluding that the Secretary had complied with the duty to assist.
The government responds that because all the issues raised in Lopez’s appeal
involve the Board’s factual determinations and the Veterans Court’s application of the
law to the facts, this court lacks jurisdiction to review the appeal. Further, the
government argues that even if we had jurisdiction over the appeal, none of the
assertions in Lopez’s informal brief provide any basis to overturn the decision of the
Veterans Court.
We agree with the government that we do not have jurisdiction over Lopez’s
appeal. Under 38 U.S.C. § 7292(d)(2), we may not review factual findings or the
application of the law to the facts in a Veterans Court decision, except to the extent that
an appeal presents a constitutional issue. Here, Lopez does not raise any constitutional
issues. Nor does he argue that the Veterans Court misinterpreted any statute or
regulation or that any pertinent VA regulation is invalid. Rather, Lopez challenges the
Board’s interpretation of his medical records, an issue of fact, and the Veterans Court’s
05-7197 -5-
review of the Board’s findings, an application of the law to the facts. Under these
circumstances, Lopez’s appeal is beyond the scope of our jurisdiction. We therefore
dismiss Lopez’s appeal for lack of jurisdiction.
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