Rice v. McDonald ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PHILIP L. RICE,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7113
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-1083, Chief Judge Bruce E.
Kasold.
______________________
Decided: January 12, 2015
______________________
PHILIP L. RICE, of Seymour, Tennessee, pro se.
NATHANAEL B. YALE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were JOYCE R. BRANDA, Acting
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and ALLISON KIDD-MILLER, Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
2 RICE v. MCDONALD
Assistant General Counsel, and MARTIN J. SENDEK, At-
torney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before DYK, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
Phillip L. Rice appeals from a decision of the United
States Court of Appeals for Veterans Claims (the “Veter-
ans Court”). The Veterans Court affirmed a 2012 decision
by the Board of Veterans’ Appeals (the “Board”) denying
an effective date earlier than May 30, 2002, for the veter-
an’s benefits. We affirm.
BACKGROUND
Mr. Rice is a Vietnam-era veteran who served in the
Navy from August 30, 1971, to January 23, 1973. In 1984,
the veteran submitted a claim for benefits for a psychiat-
ric disorder, including schizophrenia, which was denied by
the Department of Veterans Affairs (“VA”) Regional Office
(“RO”). The veteran did not appeal the determination, and
it became final.
On May 30, 2002, the veteran filed a claim to reopen
the 1984 claim on the ground of new and material evi-
dence. The Board found that there was new and material
evidence and granted the veteran’s claim for service
connection, assigning a permanent 100% disability evalu-
ation with an effective date of May 30, 2002.
The Board ultimately denied a service connection date
earlier than May 30, 2002, relying on 38 U.S.C. § 5110and 38 C.F.R. § 3.400. The Veterans Court affirmed the
Board’s decision.
DISCUSSION
Under 38 U.S.C. § 7292, we have jurisdiction to re-
view decisions of the Veterans Court on issues of law but
RICE v. MCDONALD 3
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)).
38 U.S.C. § 5110 provides that “the effective date of
an award based on . . . a claim reopened after final adju-
dication . . . shall not be earlier than the date of receipt of
application therefor.” 38 U.S.C. § 5110(a); see 38 C.F.R.
§ 3.400. 38 C.F.R. § 3.400(q) provides that where “[n]ew
and material evidence . . . other than service department
records” is “[r]eceived after final disallowance[,]” the
effective date is the “[d]ate of receipt of [the] new claim or
[the] date [the] entitlement arose, whichever is later.” 38
C.F.R. § 3.400(q).
The Veterans Court correctly interpreted the law as
providing that the “earliest effective date for an award
based on a claim to reopen [based on new and material
evidence] is the date of that claim, not the date of the
original claim.” App. 1; see Comer v. Peake, 552 F.3d 1362,
1370 (Fed. Cir. 2009) (“The earliest effective date for an
award based on a veteran's request to reopen a final
decision based on new and material evidence is generally
the date that the application to reopen was filed.”) (cita-
tion omitted). The veteran alleges errors in the 1984
decision, but that is not pertinent to assigning an effective
date of a claim to reopen based on new and material
evidence.
We note that, based on the veteran’s statement that
“[t]he VA was grossly in error in the Aug. 1984 decision,”
App. 44, a separate claim for clear and unmistakable
error (“CUE”) was also opened. The RO denied the CUE
claim on December 21, 2010, and the veteran did not
appeal the denial of the CUE claim. There is no basis for
claiming that the Veterans Court erred in refusing to
consider the veteran’s CUE claim in this proceeding.
4 RICE v. MCDONALD
Under the circumstances, the veteran raises no legal
issues within our jurisdiction.
DISMISSED
COSTS
No costs.