Johnson v. McDonald ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN C. JOHNSON,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7123
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2384, Judge Mary J. Schoelen.
______________________
Decided: December 8, 2014
______________________
JOHN C. JOHNSON, of Las Vegas, Nevada, pro se.
JESSICA R. TOPLIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were JOYCE R. BRANDA, Assistant
Attorney General, ROBERT E. KIRSCHMAN, JR., Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-
sel on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and MARTIN J. SENDEK, Attorney, Unit-
2 JOHNSON v. MCDONALD
ed States Department of Veterans Affairs, of Washington,
DC.
______________________
Before MOORE, REYNA, and TARANTO, Circuit Judges.
PER CURIAM
John Johnson appeals from a U.S. Court of Appeals
for Veterans Claims (Veterans Court) judgment upholding
a Board of Veterans’ Appeals decision that denied Mr.
Johnson an earlier effective date for service connection for
coronary artery disease. Because Mr. Johnson challenges
the Veterans Court’s factual findings and application of
38 C.F.R. § 3.816(c)(2) to the facts of this case, we dismiss
the appeal for lack of jurisdiction.
BACKGROUND
Mr. Johnson served in the U.S. Marine Corps from
1962 to 1966 and suffered exposure to Agent Orange
during service. He filed a claim for disability compensa-
tion for Agent Orange exposure, which the Department of
Veterans Affairs (VA) received on February 7, 1991. The
VA found Mr. Johnson eligible for participation in the
Agent Orange payment program and granted him enti-
tlement beginning July 31, 1989.
Relevant to this appeal, Mr. Johnson also filed a claim
for service connection for coronary artery disease (CAD),
with which he was diagnosed in 1990. 38 C.F.R.
§ 3.309(e) subsequently established presumptive service
connection for CAD based on exposure to certain herbi-
cides, such as Agent Orange. A VA regional office (RO)
thus granted Mr. Johnson service connection for CAD
with an effective date of February 7, 1991, the date the
VA received his disability claim for Agent Orange expo-
sure.
Mr. Johnson appealed to the Board, requesting an
earlier effective date for his service connection award for
JOHNSON v. MCDONALD 3
CAD. The Board upheld the RO’s decision, finding that
the RO correctly applied 38 U.S.C. § 3.816(c)(2), which
provides that the effective date for an award for disability
compensation for a “covered herbicide disease,” such as
CAD, “will be the later of the date such claim was re-
ceived by VA or the date the disability arose.” The Board
held that February 7, 1991, the date the VA received Mr.
Johnson’s disability claim for Agent Orange exposure, was
later than when his CAD arose in 1990 and therefore
constituted the appropriate effective date under
§ 3.816(c)(2).
The Veterans Court affirmed the Board’s decision.
The court also rejected Mr. Johnson’s assertion that he
was prejudiced by the court’s previous denial of his re-
quest to supplement the record in another appeal relating
only to the issue of service connection. The court held
that Mr. Johnson failed to establish the relevance of that
prior decision to the instant matter. Mr. Johnson timely
appealed.
DISCUSSION
Pursuant to 38 U.S.C. § 7292(a), we have jurisdiction
over rules of law or the validity of any statute or regula-
tion, or an interpretation thereof, on which the Veterans
Court relies to reach its decision. We may not, however,
review a challenge to a factual determination or an appli-
cation of law to the facts of a particular case, except where
an appeal presents a constitutional question. 38 U.S.C.
§ 7292(d)(2).
We do not have jurisdiction over this appeal because
Mr. Johnson only challenges the Veterans Court’s factual
determinations and application of § 3.816(c)(2) to the facts
of this case. Mr. Johnson disputes the effective date
assigned to his service connection award for CAD.
Whether the Board and Veterans Court correctly applied
§ 3.816(c)(2) in assigning the effective date is an issue
over which we have no jurisdiction. Mr. Johnson reas-
4 JOHNSON v. MCDONALD
serts that the Veterans Court improperly excluded rele-
vant evidence when it denied his request to supplement
the record in a previous appeal. This issue also does not
fall within our scope of review as it presents only a factual
dispute. Mr. Johnson further alleges that he suffered
constitutional violations, but provides no further detail or
support for his claim. Labeling the Veterans Court’s
decision a constitutional violation alone does not confer
upon us jurisdiction that we otherwise lack. Helfer v.
West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (holding that
this court does not have jurisdiction over assertions that
are “constitutional in name” only). Because the only issue
here is Mr. Johnson’s disagreement with the Veterans
Court’s factual findings and application of law to fact, we
must dismiss the appeal for lack of jurisdiction.
DISMISSED
Costs
No Costs.