Koshock v. Peake , 287 F. App'x 110 ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7311
DONALD L. KOSHOCK,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Hugh D. Cox, of Greenville, North Carolina, argued for claimant-appellant.
Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent-appellee. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Todd M. Hughes, Assistant Director. Of counsel on the brief was
David J. Barrans, Deputy Assistant General Counsel, United States Department of Veterans
Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Alan G. Lance, Sr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7311
DONALD L. KOSHOCK,
Claimant-Appellant,
v.
JAMES B. PEAKE M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 05-
1528, Judge Alan G. Lance, Sr.
_______________________
DECIDED: August 14, 2008
_______________________
Before LOURIE, RADER, and PROST, Circuit Judges.
LOURIE, Circuit Judge.
Donald L. Koshock appeals from the decision of the United States Court of
Appeals for Veterans Claims (“the Veterans Court”) affirming the decision of the Board
of Veterans’ Appeals (“the Board”) that denied his claim for benefits due to the nature of
his military discharge. Koshock v. Nicholson, No. 05-1528 (Vet. App. July 19, 2007).
Because we lack jurisdiction over Koshock’s appeal, we dismiss.
BACKGROUND
Koshock served on active duty in the United States Marine Corps from August
1965 to February 1968 at which time he received an “undesirable” discharge. In March
1995, a Department of Veterans Affairs (“DVA”) regional office determined that the
nature of Koshock’s discharge made him ineligible for veterans benefits. In March
2000, Koshock sought to reopen his claim on the basis that his discharge was not
dishonorable. In October 2000, the DVA regional office denied Koshock’s claim and
clarified that “undesirable” was considered “dishonorable” for purposes of receiving
benefits. Further proceedings before the Board and the Veterans Court followed, but
the matter was eventually remanded pursuant to a joint motion. The remand order from
the Board to the regional office directed that notice pursuant to the Veterans Claims
Assistance Act of 2000 (“VCAA”), Pub. L. No. 106-475, 114 Stat. 2096, be provided.
On June 21, 2004, the regional office sent Koshock and his counsel a letter
explaining the status of his claim and the evidence needed to support that claim as well
as other information in accordance with the VCAA requirements. The DVA then
readjudicated Koshock’s claim through a Supplemental Statement of the Case on
November 10, 2004 and found him ineligible for veterans benefits. He appealed to the
Board, and the Board found on April 20, 2005 that he was ineligible for benefits because
of the nature of his discharge. He appealed the Board’s decision to the Veterans Court,
and the Veterans Court found on July 19, 2007 that he had failed to establish error in
the Board’s decision. The Veterans Court entered final judgment on August 13, 2007.
Koshock timely appealed to this court.
DISCUSSION
2007-7311 -2-
Koshock argues that the Veterans Court failed to apply the rule of prejudicial
error in reviewing error in his VCAA notice. See 38 U.S.C. § 5103(a); 38 C.F.R. §
3.159(b); Sanders v. Nicholson, 487 F.3d 881, 885-86 (Fed. Cir. 2007). In his briefs to
this court, Koshock argued that the Veterans Court had misapplied this court’s decisions
in Sanders and Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007), but counsel for
Koshock appeared to abandon that position at oral argument. Instead, counsel for
Koshock relied entirely on this court’s decision in Mlechick v. Mansfield, 503 F.3d 1340(Fed. Cir. 2007), identified only in a Federal Rules of Appellate Procedure 28(j) letter
filed the day before oral argument, as support for his position. At oral argument,
counsel for the government argued that Koshock had misinterpreted Mlechick in the
same way as he misinterpreted Sanders and Simmons by failing to understand that a
finding of error in the notice was a necessary predicate to questions about application of
the rule of prejudicial error.
In reviewing decisions of the Veterans Court, we are empowered to “decide all
relevant questions of law, including interpreting constitutional and statutory provisions.”
38 U.S.C. § 7292(d)(1). Our review thus includes questions of law, which we review de
novo. Bailey v. West, 160 F.3d 1360, 1362 (Fed. Cir. 1998) (en banc). However,
except to the extent that an appeal presents a constitutional issue, we may not review a
challenge to a factual determination or a challenge to a law or regulation as applied to
the facts of a particular case. 38 U.S.C. § 7292(d)(2).
We agree with the government that we lack jurisdiction over Koshock’s appeal.
Before it is possible to determine if any error has prejudiced a claimant for veterans
benefits, there must be an error in the DVA’s VCAA notice to the claimant. The
2007-7311 -3-
Veterans Court specifically found no error in the DVA’s notice to Koshock. Whether a
communication from the DVA satisfied its notice obligation under the VCAA is a
question of fact and thus outside the jurisdiction of this court. Mayfield v. Nicholson,
499 F.3d 1317, 1322 (Fed. Cir. 2007); 38 U.S.C. § 7292(d)(2). For that reason, we
must dismiss.
2007-7311 -4-