Donald MacPherson v. Shinseki , 525 F. App'x 934 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONALD MACPHERSON,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7086
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 08-3660, Judge Mary J. Schoelen.
______________________
Decided: May 20, 2013
______________________
DONALD W. MACPHERSON, of Phoenix, Arizona, pro se.
SARA M. BIENKOWSKI, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and PATRICIA M. MCCARTHY, Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
2 DONALD MACPHERSON v. SHINSEKI
Assistant General Counsel, and MARTIN J. SENDEK, At-
torney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before RADER, Chief Judge, MOORE, Circuit Judge, and
BENSON, District Judge. *
PER CURIAM.
Donald W. MacPherson appeals from the decision of
the Court of Appeals for Veterans Claims (Veterans
Court) affirming the denial of a compensable rating for
Mr. MacPherson’s service-connected hearing loss. Be-
cause the Veterans Court did not err, we affirm.
BACKGROUND
Mr. MacPherson served on active duty in the U.S.
Army from 1967 to 1971. In 2004, he filed a claim for
entitlement to service connection for hearing loss. Based
on a VA audiological examination, the regional office (RO)
granted service connection for bilateral hearing loss but
rated it as 0% disabling.
Mr. MacPherson filed a Notice of Disagreement with
the RO’s decision to award a noncompensable rating and
asked the VA to review his claim under the Decision
Review Officer (DRO) process. After a DRO issued a
Statement of the Case, the RO informed Mr. MacPherson
that his request for a Board of Veterans’ Appeals hearing
at a local VA field facility (a travel Board hearing) had
been granted. Mr. MacPherson canceled the hearing,
however, stating that it was premature because he want-
ed to wait for a decision by a DRO.
*Honorable Dee V. Benson, District Judge, United
States District Court of Utah, sitting by designation.
DONALD MACPHERSON v. SHINSEKI 3
A DRO then issued a Supplemental Statement of the
Case (SSOC). The DRO concluded that Mr. MacPherson’s
VA medical records showed “no objective findings in
regards to [his] bilateral hearing loss to change the previ-
ously assigned 0% evaluation.” S.A. 73. On the same
day, the RO also sent Mr. MacPherson a letter informing
him that a new travel Board hearing had been scheduled.
Mr. MacPherson failed to appear at the hearing.
Soon thereafter, the Board issued its decision. The
Board stated that Mr. MacPherson had failed to report for
two scheduled hearings and that it considered his request
for a hearing to be withdrawn. The Board also concluded,
based on audiological testing, that his hearing loss was
noncompensable.
The Board denied Mr. MacPherson’s motion for recon-
sideration. It held that it had correctly considered Mr.
MacPherson’s request for a hearing to be withdrawn
because he failed to report for the second hearing. The
Board rejected Mr. MacPherson’s argument that he never
received notice of the second hearing. It explained that,
based on the presumption of regularity, Mr. MacPherson
would be presumed to have received the notice letter that
the VA mailed to him absent clear evidence to the contra-
ry. The Board noted that the letter was sent to Mr.
MacPherson’s address of record where he received other
VA correspondence, including the SSOC. The Board
concluded that Mr. MacPherson failed to rebut the pre-
sumption of regularity.
The Veterans Court affirmed the Board’s decision. It
concluded that the Board did not err by holding that Mr.
MacPherson failed to rebut the presumption of regularity.
The court also held that the Board correctly applied Mr.
MacPherson’s audiological test results to the rating
schedule to conclude that his hearing loss was noncom-
pensable. Mr. MacPherson appeals.
4 DONALD MACPHERSON v. SHINSEKI
DISCUSSION
Our jurisdiction to review the Veterans Court’s deci-
sions is limited by statute. Guillory v. Shinseki, 603 F.3d
981, 986 (Fed. Cir. 2010). We have jurisdiction over “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
We lack jurisdiction, however, over any “challenge to a
factual determination” or “challenge to a law or regulation
as applied to the facts of a particular case” unless the
challenge presents a constitutional issue. 38 U.S.C.
§ 7292(d)(2). We review the Veterans Court’s legal con-
clusions de novo. Cushman v. Shinseki, 576 F.3d 1290,
1296 (Fed. Cir. 2009).
I. Failure to Appear
Mr. MacPherson argues that the regulation governing
scheduling and notice of travel Board hearings is uncon-
stitutional, both facially and as applied to him. That
regulation provides that, when a Board hearing is sched-
uled at a VA field facility, the appellant requesting the
hearing will be notified of its time and place. 38 C.F.R.
§ 20.704(b). The regulation further provides that, if an
appellant fails to appear for a scheduled hearing and a
request for postponement has not been granted, the case
will proceed as though the request for a hearing had been
withdrawn. Id. § 20.704(d). No further request for a
hearing will be granted in the same appeal unless the
appellant establishes (1) that “failure to appear was with
good cause” and (2) that the failure arose “under such
circumstances that a timely request for postponement
could not have been submitted prior to the scheduled
hearing date.” Id. A motion for a new hearing date must
be filed within fifteen days of the originally scheduled
hearing date. Id.
Mr. MacPherson argues that § 20.704 violates his due
process rights. He contends that he did not receive actual
notice of the second travel Board hearing until he received
DONALD MACPHERSON v. SHINSEKI 5
the Board’s decision, nearly three months after the sched-
uled hearing date. Mr. MacPherson thus argues that he
could not possibly have satisfied the fifteen-day require-
ment. He asserts that the regulation therefore deprives
him and similarly situated veterans of the right to be
heard by affording them no opportunity to articulate good
cause for missing a Board hearing within the required
timeframe. Mr. MacPherson argues that he is entitled to
have his case remanded for the Board to consider whether
he had good cause for failing to appear at the hearing. He
points to evidence that he argues demonstrates good
cause.
To the extent that Mr. MacPherson raises a genuine
constitutional question, we agree with the government
that § 20.704 satisfies the constitutional requirements of
notice and provides an opportunity to be heard. On its
face, § 20.704(b) requires that claimants be notified of a
hearing, and § 20.704(d) only applies in situations where
the VA provides this notice. We therefore conclude that
the regulation is not facially unconstitutional.
Nor is the regulation unconstitutional as applied. Mr.
MacPherson argues that he was denied due process
because he did not receive notice of the second travel
Board hearing and thus did not have an opportunity to
show good cause for missing it within fifteen days, as
required by the regulation. In substance, however, Mr.
MacPherson’s contention is that the Veterans Court
incorrectly held that he failed to rebut the presumption of
administrative regularity. We see no error in the Veter-
ans Court’s conclusion that the letter notifying Mr. Mac-
Pherson of the second Board hearing should be presumed
to have been mailed. “[I]n the absence of clear evidence to
the contrary, the court will presume that public officers
have properly discharged their official duties.” Rizzo v.
Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009). The letter
in the record was addressed to Mr. MacPherson at the
address where he received other VA correspondence,
6 DONALD MACPHERSON v. SHINSEKI
including the SSOC. The letter was dated the same day
as the SSOC, which Mr. MacPherson acknowledges he
received. The SSOC expressly referenced the letter. Mr.
MacPherson has not proffered evidence sufficient to rebut
the presumption of administrative regularity. He has not
provided clear evidence that he did not receive the letter.
We thus hold that the Board’s application of § 20.704 to
Mr. MacPherson’s case did not violate his due process
rights because he failed to rebut the presumption that the
VA mailed him notice of the second Board hearing.
II. Audiological Testing
Mr. MacPherson makes several arguments that he
contends are constitutional in nature regarding the audio-
logical tests that the VA performed. He argues, for exam-
ple, that the RO violated his due process and equal
protection rights when it failed to perform certain tests,
including testing his hearing at several additional
“puretone thresholds.” Mr. MacPherson alleges that the
VA contravened its own requirements by failing to per-
form these tests.
As an initial matter, despite how Mr. MacPherson
frames his objections to the VA’s audiological testing, we
conclude that he does not present any genuine constitu-
tional issues. It is well-established that an appellant’s
mere characterization of an issue as constitutional “does
not confer upon us jurisdiction that we otherwise lack.”
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Here, Mr. MacPherson fails to show how the fact that the
VA did not perform tests beyond those required by the
regulation is a constitutional violation.
Regardless, the Veterans Court correctly concluded
that the VA examiner followed the VA’s hearing impair-
ment regulation, 38 C.F.R. § 4.85, when the examiner
conducted the speech recognition and puretone audiome-
try tests. The regulation does not require the VA to
perform the additional tests that Mr. MacPherson alleges
DONALD MACPHERSON v. SHINSEKI 7
were improperly omitted. As the Veterans Court ex-
plained, the Board applied the rating schedule to the
audiological test results in accordance with the regula-
tions. We thus hold that the Veterans Court correctly
concluded that the Board properly relied on these tests to
conclude that Mr. MacPherson’s hearing loss did not
warrant a compensable rating.
II. CONCLUSION
We have considered Mr. MacPherson’s other argu-
ments on appeal and find them to be without merit.
Because the Veterans Court did not err, we affirm its
holding that Mr. MacPherson is not entitled to a compen-
sable rating for his hearing loss.
AFFIRMED
COSTS
No Costs.