Bechdel v. Mansfield , 259 F. App'x 314 ( 2007 )

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7246
JACK I. BECHDEL,
Claimant-Appellant,
v.
GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,
Respondent-Appellee.
Jack I. Bechdel, of Bellefonte, Pennsylvania, pro se.
Steven M. Mager, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson,
Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were David J.
Barrans, Deputy Assistant General Counsel, and Christopher P. McNamee, Staff Attorney,
United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Ronald M. Holdaway
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7246
JACK I. BECHDEL,
Claimant-Appellant,
v.
GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: December 6, 2007
___________________________
Before MICHEL, Chief Judge, RADER, Circuit Judge, and PLAGER, Senior Circuit
Judge.
PER CURIAM.
The Court of Appeals for Veterans Claims (Veterans Court) affirmed the decision
of the Board of Veterans’ Appeals (Board) that the Department of Veterans Affairs (VA)
had no duty to contact Mr. Jack I. Bechdel when non-Hodgkin’s lymphoma was added
to the list of diseases eligible for presumptive service connection and that Mr. Bechdel
was not entitled to an effective date earlier than October 2, 1997 for the grant of service
connection for non-Hodgkin’s lymphoma. Bechdel v. Nicholson, No. 05-1417 (Vet. App.
Mar. 22, 2007). Because the Veterans Court correctly affirmed the Board’s decision,
this court affirms.
I
Mr. Bechdel served on active duty from February 1958 to October 1968,
including combat service in Vietnam for which he received a Purple Heart. In October
1975, Mr. Bechdel was found to have a malignant lymphoma in his abdomen. In
November 1975, he filed a claim for non-service-connected pension. In February 1976,
a VA regional office (RO) granted the claim for non-service connected pension and
awarded special monthly compensation upon account of his need for regular aid and
attendance.
In 1994, Congress added non-Hodgkin’s lymphoma to the list of diseases eligible
for service connection presumption in veterans who were exposed to herbicides in
Vietnam. See 38 U.S.C. § 1116. In October 1998, Mr. Bechdel filed a claim for service
connection for non-Hodgkin’s lymphoma. In July 1999, the RO granted service
connection for non-Hodgkin’s lymphoma as a result of exposure to herbicides in service,
rated as 0 percent disabling, effective October 2, 1998. On October 1, 1999, the RO
granted service connection for a splenectomy as secondary to non-Hodgkin’s
lymphoma and assigned a 20 percent disability rating for the condition, effective
October 2, 1998. Mr. Bechdel then appealed the effective date assigned for service
connection for non-Hodgkin’s lymphoma. He asserted that the effective date should
have been made retroactive to the date in 1975 when he first filed for benefits. He also
argued that the VA had a duty to contact him and reopen his claim for benefits when
Congress added non-Hodgkin’s lymphoma to the conditions subject to presumptive
service connection based on herbicide exposure in Vietnam.
In May 2002, the RO granted an earlier effective date of October 2, 1997, for the
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award of service connection for both Mr. Bechdel’s non-Hodgkin’s lymphoma and his
splenectomy on the basis that 38 C.F.R. § 3.114(a)(3) authorized the assignment of an
effective date one year prior to the receipt of the claim. 38 C.F.R. § 3.114(a)(3). On
February 3, 2005, the Board found that the effective date of October 2, 1997 was the
earliest effective date authorized by the law. On March 22, 2007, the Veterans Court
affirmed the Board’s decision.
II
This court has exclusive jurisdiction to review and decide any challenge to the
validity of any statute or regulation or any interpretation thereof that was relied on by the
Veterans Court in making the decision. 38 U.S.C. § 7292(a), (c). Further, this court
reviews questions of statutory interpretation de novo. Mayfield v. Nicholson, 499 F.3d
1317, 1321 (Fed. Cir. 2007). In contrast, except where an appeal presents a
constitutional question, this court may not review a challenge to factual determinations,
or a challenge to a law or regulation as applied to the facts of a particular case. 38
U.S.C. § 7292(d)(2).
III
A veteran who served in the Republic of Vietnam during the period beginning on
January 9, 1962, and ending on May 7, 1975, and has manifested non-Hodgkin’s
lymphoma, is presumed to have been exposed to herbicide. See 38 U.S.C. § 1116(a).
Pursuant to 38 U.S.C. § 5110(a), the “effective date of an award based on an original
claim . . . shall be fixed in accordance with the facts found, but shall not be earlier than
the date of receipt of application therefore.” 38 U.S.C. § 5110(a). The statute provides
an exception to this rule as follows:
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Subject to the provisions of section 5101 of this title, where
compensation . . . or pension is awarded . . . pursuant to any Act or
administrative issue, the effective date of such award or increase shall be
fixed in accordance with the facts found but shall not be earlier than the
effective date of the Act or administrative issue. In no event shall such
award or increase be retroactive for more than one year from the date of
application therefor or the date of administrative determination of
entitlement, whichever is earlier.
38 U.S.C. § 5110(g) (emphasis added). Mr. Bechdel filed a claim for service-
connection for non-Hodgkin’s disease on October 1, 1998. Therefore, the Veterans
Court correctly affirmed the Board’s ruling that the effective date for his claim was
October 2, 1997, a year prior to the date of his application.
IV
On appeal, Mr. Bechdel first challenges the Veteran’s Court’s ruling that the VA
was not required to notify him of the addition of non-Hodgkin’s lymphoma to the list of
diseases eligible for presumptive service connection. He argues that the VA’s failure to
notify him and other veterans deprived them of years of service-connected
compensation. However, this court has held that 38 U.S.C. § 5110 merely allows the
VA to review such a claim on its own initiative. See McCay v. Brown, 106 F.3d 1577,
1581 (Fed. Cir. 1997) (quoting S. Rep. No. 2042, 87th Cong., 2d Sess. 2 (1962),
reprinted in 1962 U.S.C.C.A.N. 3260, 3264-65 (“This section would permit the Veterans’
Administration to identify and apply the provisions of a liberalized law or administrative
issue on their own initiative where feasible; or, where it is not feasible to identify
potential beneficiaries administratively, to require the filing of an application.”)). Mr.
Bechdel fails to identify any other statute or regulation imposing a duty on the VA to
notify the veterans. And indeed, this court is aware of no such statute or regulation.
Therefore, this court finds that Mr. Bechdel’s argument is unsupported by legal
2007-7246 4
authority.
Second, Mr. Bechdel asks the court “[t]o overturn the law,” presumably the law
limiting retroactive payments based upon 38 U.S.C. § 5110(g), “to extend rights to those
who were diagnosed prior to that date.” But he presents no basis for finding this law
unconstitutional or invalid. While Mr. Bechdel asserts a generalized violation of his
constitutional rights, this court is unable to discern any basis for any cognizable
constitutional claim. Mr. Bechdel may not agree with Congress’ policy choice to limit the
range of the effective date, but he must rely on the democratic process rather than the
courts to change the law absent any constitutional claim.
Third, Mr. Bechdel seems to argue that the effective date for his service
connection for non-Hodgkin’s lymphoma should date back to earlier than October 2,
1997, preferably to 1975, when he first filed for non-service-connected pension pursuant
to 38 U.S.C. § 5110(a) and (g). Because Mr. Bechdel’s appeal on this issue presents a
challenge to the application of the statute to the facts of his case, this court lacks
jurisdiction to consider this issue. Similarly, this court lacks jurisdiction to determine
whether the Veterans Court failed to consider that Mr. Bechdel received the Purple
Heart or whether he actually received the non-service-connected pension.
Accordingly, the Veterans Court was correct in affirming the Board’s finding that
the effective date for Mr. Bechdel’s application for service connection for non-Hodgkin’s
lymphoma was October 2, 1997.
COSTS
No costs.
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