Williams v. Dept. Of Veterans Affairs , 469 F. App'x 919 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DANIEL J. WILLIAMS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7078
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 10-2361, Judge Robert N. Davis.
____________________________
Decided: June 11, 2012
____________________________
DANIEL J. WILLIAMS, of Notasulga, Alabama, pro se.
ELIZABETH A. SPECK, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and BRIAN M. SIMKIN, Assistant Director. Of counsel
WILLIAMS v. SHINSEKI 2
on the brief was DAVID J. BARRANS, Deputy Assistant
General Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before LOURIE, PROST, and WALLACH, Circuit Judges.
PER CURIAM.
Daniel J. Williams appeals from a decision of the
United States Court of Appeals for Veterans Claims,
Williams v. Shinseki, No. 10-2361, slip op. (Vet. App. Dec.
29, 2011), (“Veterans Court Op.”), that affirmed a decision
of the Board of Veterans’ Appeals not to reopen Williams’
claim for service connection. Because we lack jurisdiction,
we dismiss Williams’ appeal.
BACKGROUND
Williams served on active duty from June to Novem-
ber of 1973. In re Williams, No. 05-34 384, slip op. at 2
(Bd. of Veterans’ Appeals Oct. 5, 2009) (“Board Op.”). In
December 1973, the Department of Veterans Affairs
Regional Office (“RO”) denied Williams’ claim for service
connection for a psychiatric disorder. In its decision, the
RO noted that Williams acknowledged pre-enlistment
psychiatric hospitalization and use of hallucinogenic
drugs on a daily basis for months prior to enlistment.
Veterans Court Op. at 2. The RO further noted that the
Physical Evaluation Board recommended discharge for
disability schizophrenia, paranoid type, that existed prior
to service. Id. The RO denied Williams’ claim because his
psychiatric disability “was not aggravated beyond normal
progress during his short military service.” Id. (internal
quotation marks omitted). Williams did not appeal the
denial, which became final in March 1974. Board Op. at
2.
3 WILLIAMS v. SHINSEKI
In May 2004, Williams submitted a request to reopen
his previously denied claim for service connection. In
support of his request, Williams submitted VA hospital
and outpatient treatment records showing intermittent
treatment for symptoms associated with psychiatric
disorder, other private medical treatment records and
hospital treatment records, and his own statements in
support of his claim. Id. at 8–9. In January 2005, the RO
denied Williams’ request to reopen his claim. Id. at 2.
Williams appealed to the Board, which also denied his
request to reopen. The Board found that the evidence
submitted after the March 1974 rating decision was not
new and material and did not relate to an unestablished
fact necessary to substantiate Williams’ claim. Id. at 9.
In a decision dated December 29, 2011, the Veterans
Court affirmed the Board’s denial. The court discerned no
error in the Board’s finding that the evidence did not
pertain to a previously unestablished fact, and thus
concluded that the Board did not err in its denial of
Williams’ request to reopen his claim. Veterans Court Op.
at 3.
Williams timely appealed to our court. As we will ex-
plain, the government disputes our jurisdiction over
Williams’ appeal.
DISCUSSION
Our jurisdiction to review a decision of the United
States Court of Appeals for Veterans Claims is limited by
statute. We may review a decision with respect to its
“validity . . . on a rule of law or of any statute or regula-
tion . . . or any interpretation thereof (other than a deter-
mination as to a factual matter) that was relied on by the
WILLIAMS v. SHINSEKI 4
Court in making the decision.” 38 U.S.C. § 7292(a).
“Except to the extent that an appeal . . . presents a consti-
tutional issue,” however, we “may not review (A) a chal-
lenge to a factual determination, or (B) a challenge to a
law or regulation as applied to the facts of a particular
case.” Id. § 7292(d)(2).
On appeal, Williams challenges factual determina-
tions of the Board and the Veterans Court. Williams
contends that the Veterans Court based its decision on
the fact that he had used hallucinogenic drugs on a daily
basis prior to his enlistment. Williams alleges error in
this determination, arguing that he used such drugs only
about three times before entering the military. Williams
further contends that his prior statements about his drug
use should be ignored because at the time of those state-
ments he was suffering from an allergic reaction to the
antipsychotic drug Haldol.
In response, the government asserts that we lack ju-
risdiction over Williams’ appeal because the Veterans
Court’s decision did not involve a constitutional issue or
the validity or interpretation of a statute or regulation,
only questions of fact.
We agree with the government that we lack jurisdic-
tion over Williams’ appeal. The Veterans Court’s decision
did not interpret a statute or regulation or decide a con-
stitutional issue. Rather, Williams seeks to challenge the
Board’s determinations whether the evidence he submit-
ted in support of his request to reopen amounts to new
and material evidence. The Board’s determination
whether evidence in support of a request to reopen is new
and material under 38 C.F.R. § 3.156(a) requires the
application of law to fact and thus falls outside of our
jurisdiction. See 38 U.S.C. § 7292(d); see also Prillaman
5 WILLIAMS v. SHINSEKI
v. Principi, 346 F.3d 1362, 1367 (Fed. Cir. 2003) (noting
that “determinations of new and material evidence re-
quire the application of a clear legal standard set forth in
a regulation to the particular facts of a case”). We there-
fore have no choice but to dismiss Williams’ appeal for
lack of jurisdiction.
CONCLUSION
For the foregoing reasons, we dismiss Williams’ ap-
peal for lack of jurisdiction.
DISMISSED
COSTS
No costs.