Richard Proceviat v. Shinseki , 524 F. App'x 674 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD A. PROCEVIAT,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2013-7010
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1066, Judge Robert N. Davis.
______________________
Decided: May 8, 2013
______________________
RICHARD A. PROCEVIAT, of Elma, Manitoba, Canada,
pro se.
AUSTIN FULK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Deputy Director.
2 RICHARD PROCEVIAT v. SHINSEKI
Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and AMANDA R. BLACKMON,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before NEWMAN, LOURIE, and WALLACH, Circuit Judges.
PER CURIAM.
Richard A. Proceviat appeals pro se from the decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“Board”) that he lacked service con-
nection for rheumatoid arthritis tinnitus due to herbicide
exposure. Proceviat v. Shinseki, No. 11-1066, 2012 WL
1197092 (App. Vet. Apr. 11, 2012). Because the Veterans
Court did not err in barring Proceviat’s CUE claim as
barred by res judicata, we affirm.
BACKGROUND
Proceviat served on active duty in the United States
Army from June 1970 to February 1972. In March 1987,
Proceviat wrote a letter to the Department of Veterans
Affairs (“VA”) indicating that he wanted to apply for
pension benefits. In July 1987, upon receiving an applica-
tion, Proceviat applied for non-service connected (“NSC”)
pension benefits. In that application, Proceviat reported a
history of rheumatoid arthritis. In a November 1989
rating decision, the RO granted Proceviat NSC pension
benefits effective as of August 1989, awarding a 60-
percent disability rating. In May 1996, Proceviat applied
for special monthly pension (“SMP”) based on the need for
regular aid and an attendant. In October 1996, the RO
granted Proceviat’s SMP application and assigned an
effective date of June 7, 1996.
In 1997, Proceviat filed a notice of disagreement seek-
ing an earlier effective date for his SMP based on his
RICHARD PROCEVIAT v. SHINSEKI 3
March 1987 letter on equitable relief grounds. Proceviat
also alleged that the RO committed a clear and unmis-
takable error (“CUE”) in its November 1989 rating deci-
sion. The RO responded that equitable relief was not
warranted for his SMP claim because evidence did not
indicate a need for regular aid and an attendant prior to
June 7, 1996. It later granted an earlier effective filing
date of March 1987 for the NSC disability pension.
In November 2001, Proceviat filed another CUE claim
arguing that the RO had failed to consider his entitlement
to aid and an attendant, and that the RO’s rationale for
his November 1989 disability rating was inadequately
explained. The RO and the Board denied both claims.
Regarding his claim for a March 1987 effective date for
SMP, the Board rejected Proceviat’s assertion that his
1987 letter should have been treated as an informal claim
for SMP. The Board also rejected Proceviat’s allegation of
CUE, noting that the November 1989 decision evaluated
and weighed evidence and thus did not provide a suffi-
cient basis for a finding of CUE. The Veterans Court
affirmed the Board’s decision. On appeal, we held that
Proceviat failed to raise a CUE claim because he was only
challenging the application of the diagnostic code and that
Proceviat’s claim as to whether an informal claim for aid
and an attendant was filed was an application of law to
fact. Proceviat v. Peake, 296 F. App’x 941, 943–44 (Fed.
Cir. 2008) (unpublished). We thus dismissed for lack of
jurisdiction. Id.In December 2008, Proceviat filed another motion for
revision of the November 1989 decision, alleging CUE
based on various regulations pertaining to the weighing of
evidence, the application of the diagnostic code to that
evidence, and the inadequacy of a 2010 medical examina-
tion. The Board held that Proceviat’s claim for CUE was
barred by res judicata and determined that the evidence
did not demonstrate that Proceviat’s rheumatoid arthritis
was related to his military service or related to his pre-
4 RICHARD PROCEVIAT v. SHINSEKI
sumed exposure to herbicide while in service. Proceviat
appealed to the Veterans Court.
The Veterans Court affirmed, determining that: (1)
the evidence Proceviat relied on, a medical treatise, which
was considered by the VA examiner, was too speculative
to establish a nexus between his rheumatoid arthritis and
his service; (2) the 2010 medical examination was not
inadequate; (3) that the VA did not fail to assist him in
developing his claim because it was not authorized to
provide him with the information about other claims of
veterans that he requested; and (4) that res judicata
barred his CUE claim because it was substantially similar
to his prior CUE assertion in 2008 that was held to not
constitute CUE because it was based only on the weight of
the evidence and choice of a diagnostic code. This appeal
followed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any inter-
pretation thereof [by the Veterans Court] . . . and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” Id.§ 7292(c). We may not, however, absent a constitutional
challenge, “review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2). We there-
fore generally lack jurisdiction to review challenges to the
Board’s factual determinations. See, e.g., Johnson v.
Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991).
Proceviat argues that his Fifth Amendment due pro-
cess rights were violated with respect to his CUE claim
because of the VA’s alleged failure to adjudicate his
inferred SMP claim from 1986, citing a number of regula-
tions concerning the weighing of evidence and the applica-
RICHARD PROCEVIAT v. SHINSEKI 5
tion of diagnostic codes. In addition, Proceviat alleges a
further due process violation because the Board ignored
treatise evidence supposedly relevant to his claim for
service-connected rheumatoid arthritis, and, instead,
relied on an allegedly flawed 2010 medical opinion.
The government responds that Proceviat has not ef-
fectively alleged a due process violation in substance.
Instead, the government argues that Proceviat’s substan-
tive challenges are to the application of res judicata to his
CUE claim and the weighing of medical evidence. The
government contends that the Veterans Court did not err
in applying res judicata and that we lack jurisdiction to
review the Veterans Court decision regarding medical
evidence.
At the outset, we agree with the government that
Proceviat has only alleged due process violations in name,
not in substance. Proceviat’s various due process chal-
lenges focus on the Board’s and Veterans Court’s factual
conclusions and thus fail to raise a claim under the Due
Process Clause. See Helfer v. West, 174 F.3d 1332, 1335
(Fed. Cir. 1999) (“Characterization of [a] question as
constitutional in nature does not confer upon [this Court]
jurisdiction that it otherwise lack.”).
As to the merits, we also agree with the government
that the Veterans Court properly barred Proceviat’s CUE
claim under the doctrine of res judicata. A prior decision
on a CUE claim can be barred by res judicata and is not
subject to revision if they are either: “(1) decisions on
issues which have been appealed to and decided by a
court of competent jurisdiction;” or “(2) decisions on issues
which have subsequently been decided by a court of
competent jurisdiction.” 38 C.F.R. § 20.1400(b); see Win-
sett v. Principi, 341 F.3d 1329, 1331–32 (Fed. Cir. 2003);
Disabled Am. Veterans v. Gober, 234 F.3d 682, 693 (Fed.
Cir. 2000). In this case, Proceviat’s 2001 CUE claim and
his current CUE claim both relate to the denial of an
6 RICHARD PROCEVIAT v. SHINSEKI
earlier effective date for SMP in relation to the 1989
rating decision and both challenge the RO’s assessment of
the same evidence citing the same regulatory provisions
relating to the weight of evidence and applications of
diagnostic codes. That finding was affirmed by the Veter-
ans Court and was held not to be CUE during the last
appeal, which was dismissed for lack of jurisdiction.
Proceviat, 296 F. App’x at 943–44. That same claim
raised here still does not show CUE and revisiting that
determination is barred by res judicata.
Finally, we agree with the government that we lack
jurisdiction over whether the Board gave adequate weight
to the medical evidence in the record. Proceviat essential-
ly argues that the Board should have credited a treatise
over a 2010 medical examination. Proceviat’s arguments
merely challenge the weight accorded the evidence.
However, we lack jurisdiction to review the weight given
to evidence by the Board and Veterans Court. E.g.,
Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000)
(“The weighing of this evidence is not within our appellate
jurisdiction.”). Proceviat’s fact-based challenges on appeal
do not fall within the scope of 38 U.S.C. § 7292. We
therefore decline to address them.
We have considered Proceviat’s remaining arguments
and conclude that they are without merit. Because the
Board did not err in determining that res judicata barred
Proceviat’s CUE claim, we affirm.
AFFIRMED
COSTS
No costs.