Beltran v. Dept. Of Veterans Affairs , 447 F. App'x 208 ( 2011 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
JESSE A. BELTRAN,
Claimant-Appellant,
`` V.
ERIC K. SI'IINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Resp0n,dent-Appellee.
2011-7132 ``
Appea1 from the Uni.ted States C0urt of Appeals for
Veterans Claims in 08-2763, Judge William P. Greene, Jr.
ON MOTION
Bef0re BRYSON, SCHALL, and PROST, Circuit Judges.
PER CUR1AM.
0 R D E R
The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and to dismiss Jesse A.
Be1tran’s appeal for lack of jurisdiction or in the alterna-
tive t0 summarily afErm. Beltran opposes.
BELTRAN V. DVA 2
By way of background, Beltran served on active duty
in the Navy from January to March 1980. Since July
2000, he has received veterans’ disability benefits for a
degenerative disc condition resulting from a fall that
occurred while in service. He also separately receives a
disability rating for an extremity radiculopathy condition,
which in general terms is the nerve irritation caused by
damage to his discs. _
0n February 8, 2008, the Board of Veterans’ Appeals
confirmed the agency’s rulings that Beltran was not
entitled to receive an earlier effective date for (1) a 20%
disability rating for his radiculopathy claim before Sep-
tember 23, 2002, (2) a 40% disability rating for the same
condition before March 7, 2003, and (3) a 40% disability
rating for his disc condition before March 7, 2003. The
Board also referred to a Department regional office (RO)
for initial determination Beltran’s request for revision
based on clear and unmistakable error (CUE) in an Au-
gust 1985 RO decision, which denied service connection
for scoliosis.
On appeal before the Court of Appeals for Veterans
Claims, Beltran’s primary challenge was to the Board’s
decision to refer his CUE request to the RO. The court,
however, rejected this argument on the basis that such
request for relief could not be initially adjudicated by the
Board, and thus the Board acted properly in referring the
matter to the RO to decide the matter in the first in-
stance.
The court also rejected Beltran’s argument that the
agency had failed to meet its duty-to-notify obligations
pursuant to 38 U.S.C. § 5103(a) because he was not
informed of the requirements of the applicable diagnostic
codes relating to his increased-rating claims Because
Beltran’s brief did not raise any issue regarding the
effective dates and disability award ratings assigned to
3 BELTRAN V. DVA
the two conditions on appeal, the court affirmed the
Board’s decision.
Our review of Veterans Court decisions is limited by
statute, See Yates v. West, 213 F.3d 1372, 1373-74 (Fed.
Cir. 2000). By statute, our jurisdiction over appeals from
the Veterans Court is limited to those appeals that chal-
lenge the validity of a decision of the Veterans Court with
respect to a rule of law or the validity of any statute or
regulation, any interpretation thereof or that raise any
constitutional controversies. See 38 U.S.C. § 7292. We do
not have jurisdiction to hear appeals challenging deter-
minations or the application of law to the facts of a par-
ticular case, unless there is a constitutional issue present.
See 38 U.S.C. § 7292(d)(2).
Beltran seeks review of the Veterans Court’s decision.
In his informal brief, however, Beltran indicates that his
appeal primarily seeks to challenge issues relating to his
remanded scoliosis claim. These issues were not decided
by any RO, thus the Veterans Court held that it was
proper for the Board to have remanded the matter for an
initial decision. In doing so, the Veterans Court did not
interpret any laws or regulations; rather it applied the
law to the facts of the case, As the CUE request regard-
ing his scoliosis claim is a factual determination and was
not addressed on the merits by the Veterans Court, the
issue is not reviewable by this court until a final decision
is rendered.
This court also discerns no constitutional issue within
our jurisdiction. Although Beltran’s informal brief says
otherwise, his sole support for that contention was the
words "denial of reconsideration." His "characterization
of that question as constitutional in nature does not
confer upon us jurisdiction that we otherwise lack." He1fer
v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
BELTRAN V. DVA 4
The only other issue that Beltran indicates in his brief
that the Veterans Court failed to properly decide was to
give him a 100% disability rating Deciding that issue,
however, would require this court to reweight the facts,
which is outside of this court’s limited authority.
Although pro se petitioners "are not required to file
legally impeccable submissions to proceed on appeal,
HiZario v. Dep’t of Veterans Affairs, 937 F.2d '586, 589
(Fed. Cir. 1991), Beltran must demonstrate that this court
has jurisdiction over his case, and he has not made such a
showing. The court therefore grants the Secretary’s
motions and dismisses the appeal.
Accordingly,
IT ls 0RDERED THAT:
(1) The Secretary’s motions are granted--
(2) Each side shall bear its own c0sts. .
FOR THE COURT
l 4 /s/ Jan Horbal_v
Date 3 an Horbaly
Clerk
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cc: Jesse A. Beltran
EALS FOR
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Delisa M. Sanchez., Esq. N0v 1 4 2011
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Issued As A l\/Iandate: ND_V 4_Z[]]] _
.lAN |'l0RBAL¥
CLERK