Boothe v. Dept. Of Veterans Affairs , 420 F. App'x 971 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TERRY A. BOOTHE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7056
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-0897, Judge John J.
Farley, III.
__________________________
Decided: May 11, 2011
__________________________
TERRY A. BOOTHE, of North Tazwell, Virginia, pro se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litiga-
tion 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
FRANKLIN E. WHITE, JR., Assistant Director. Of counsel on
BOOTHE v. DVA 2
the brief were DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, and CHRISTA A. SHRIBER, Staff Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before LOURIE, MAYER, and O’MALLEY, Circuit Judges.
PER CURIAM.
Terry A. Boothe appeals the final judgment of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) that denied his application (1) to
reopen his claim for service-connection for a low back
disability and tinnitus, and (2) for an earlier effective date
for the award of service-connection for post-traumatic
stress disorder (“PTSD”). See Boothe v. Shinseki, No. 09-
0897, 2010 U.S. App. Vet. Claims LEXIS 2227 (Dec. 1,
2010). We dismiss in part and affirm in part.
Boothe served in the United States Marine Corps
from May 1978 to May 1981. After he left the military, he
filed claims seeking service-connected benefits for PTSD,
lower back pain, and tinnitus. All of these claims were
denied. On March 25, 1996, Boothe filed a successful
application to reopen his claim seeking service connection
for PTSD. In February 2005, he was awarded PTSD
disability benefits, with an assigned disability rating of 70
percent and an effective date of March 25, 1996. Boothe
subsequently appealed to the Veterans Court, arguing
that he was entitled to an earlier effective date for his
PTSD award. After the Veterans Court concluded that
Boothe was not entitled to an earlier effective date, he
timely appealed to this court.
This court’s authority to review a decision of the Vet-
erans Court is limited. We may review such a decision
only to the extent that it pertains to the validity of “any
3 BOOTHE v. DVA
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter),” or “to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292. Absent the presentation of a constitutional issue,
we do not otherwise have jurisdiction to review either “a
challenge to a factual determination” or “a challenge to a
law or regulation as applied to the facts of a particular
case.” Id.On appeal, Boothe argues that the Veterans Court
“did not consider all of the evidence” and that he should
have been awarded service connection for lower back
problems and tinnitus. Whether a particular disability or
injury was incurred in service, however, is a factual
determination that this court has no jurisdiction to re-
view. See, e.g., Johnson v. Derwinski, 949 F.2d 394, 395
(Fed. Cir. 1991). We therefore dismiss Boothe’s claim
seeking disability benefits for lower back problems and
tinnitus for lack of jurisdiction.
Boothe also argues that the Veterans Court commit-
ted legal error when it denied him an earlier effective
date for the award of PTSD disability benefits. With
certain limited exceptions not relevant here, a veteran
cannot obtain an effective date for an award based on a
reopened claim that is earlier than the date the applica-
tion to reopen the claim was filed. See 38 U.S.C.
§ 5110(a); Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed.
Cir. 2010). Because Boothe did not file his application to
reopen his claim until March 25, 1996, he is not entitled
to an effective date that is earlier than that date. See
Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir.
2005). We therefore affirm the Veterans Court’s judg-
ment denying Boothe’s claim for an earlier effective date
for his PTSD award.