Russell v. McDonald , 586 F. App'x 589 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY D. RUSSELL,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7055
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2732, Judge Robert N. Davis.
______________________
Decided: December 8, 2014
______________________
DAVID E. BOELZNER, Goodman, Allen & Filetti, of
Richmond, Virginia, argued for claimant-appellant.
ALEXANDER O. CANIZARES, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent-appellee. With him on the brief were STUART F.
DELERY, Assistant Attorney General, ROBERT E.
KIRSCHMAN, JR., Director, and MARTIN F. HOCKEY, JR.,
Assistant Director. Of counsel on the brief were DAVID J.
2 RUSSELL v. MCDONALD
BARRANS, Deputy Assistant General Counsel, and TRACEY
P. WARREN, Attorney, United States Department of Vet-
erans Affairs, of Washington, DC.
______________________
Before NEWMAN, PLAGER, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
During proceedings for his claims for an increase in
veterans benefits, Anthony Russell requested that the
Department of Veterans Affairs specifically notify him,
pursuant to 38 U.S.C. § 5103(a), of the nature of the
evidence he could submit to substantiate his claims. The
Board of Veterans’ Appeals and the Court of Appeals for
Veterans Claims found that the Secretary met its obliga-
tions under § 5103(a). Because we lack jurisdiction to
determine whether, in a given case, the Secretary has
complied with the notice requirements of § 5103(a), we
dismiss Mr. Russell’s appeal for lack of jurisdiction.
I
Mr. Russell served in the Army between July 1979
and August 2000. In 1999, he sought service connection
for tinea versicolor, a skin condition characterized by
patches of skin that vary in color, shape, and size. The
Secretary granted service connection in October 2000, but
it also awarded a disability rating of 0% for the disability.
Mr. Russell appealed to the Board. In April 2002, the
Secretary mailed a letter notifying Mr. Russell about the
claims process and the evidence he should submit to
support his claims.
During the pendency of Mr. Russell’s appeal, a re-
gional office awarded 10% and then 30% disability ratings
for his skin condition under 38 C.F.R. § 4.118 (2002),
Diagnostic Code 7806 (DC 7806). In January 2005, the
Board denied a disability rating in excess of 30% under
DC 7806, which provides an increased rating of 50% for,
RUSSELL v. MCDONALD 3
among other things, “exceptionally repugnant” skin
conditions. Mr. Russell appealed this decision to the
Veterans Court, and the parties agreed to a remand.
Following remand by the Veterans Court, the Board
issued a decision ordering an examination to determine
the current severity of his service-connected skin condi-
tion. A few weeks later, in January 2008, the Secretary
again mailed a letter notifying Mr. Russell about the
claims process and additional evidence he should submit
to support his claims. For example, the letter stated that
Mr. Russell “may submit statement[s] from other individ-
uals who are able to describe from their knowledge and
personal observations in what manner your disability has
become worse.” J.A. 100.
In May 2012, after further proceedings and during a
subsequent remand from the Veterans Court,
Mr. Russell’s counsel, citing 38 U.S.C. § 5103(a), asked
the Board to “notify him of the nature of the evidence that
would substantiate” the criteria for “exceptional repug-
nance” under DC 7806. J.A. 118–19.
The Board issued a decision in July 2012, finding that
the duty to notify Mr. Russell under § 5103(a) was met by
way of the 2002 and 2008 letters sent to him from the
Secretary. The Board also found that Mr. Russell and his
representative had not “made the regional office or the
Board aware of any additional evidence that needs to be
obtained in order to fairly decide his appeal.” J.A. 16.
Turning to the merits of his claim, the Board found that
there was no evidence in the record indicating Mr. Russell
met the criteria of his claims and that his skin condition
“is not repugnant in nature, much less exceptionally
repugnant.” J.A. 20. Accordingly, the Board denied
Mr. Russell’s claim for an increased rating for his skin
condition. Mr. Russell then appealed to the Veterans
Court, which affirmed the Board’s decision.
4 RUSSELL v. MCDONALD
Mr. Russell appeals. Because we lack jurisdiction un-
der 38 U.S.C. § 7292, we dismiss the appeal.
II
Our jurisdiction over appeals from the Veterans Court
is limited. We may review all questions of law, but absent
a constitutional issue, we lack jurisdiction to review a
challenge to a “factual determination” or “law or regula-
tion as applied to the facts.” 38 U.S.C. § 7292(d); Stall-
worth v. Shinseki, 742 F.3d 980, 983 (Fed. Cir. 2014)
(citing 38 U.S.C. § 7292).
The Veterans Claims Assistance Act of 2000 provides
that on receipt of an application for veterans’ benefits, the
Secretary “shall notify the claimant . . . of any infor-
mation, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substanti-
ate the claim.” Pub. L. No. 106-475, 114 Stat. 2096 (codi-
fied at 38 U.S.C. § 5103(a)). Mr. Russell argues that the
Secretary did not comply with 38 U.S.C. § 5103(a) because
the Secretary did not address his May 2012 request for an
explanation of the meaning of “exceptionally repugnant”
in DC 7806, which he claims would have enabled him to
substantiate his claim. But “whether, in a given case, the
VA has complied with the notice requirements of section
5103(a) is a factual issue.” Garrison v. Nicholson, 494
F.3d 1366, 1370 (Fed. Cir. 2007). And to the extent that
Mr. Russell suggests that § 5103(a) “requires the [Secre-
tary] ‘to identify with specificity the evidence necessary to
establish the claim,’” Wilson v. Mansfield, 506 F.3d 1055,
1060 (Fed. Cir. 2007) (quoting Paralyzed Veterans of Am.
v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1347 (Fed. Cir.
2003)), we already have rejected that contention. Here,
the Veterans Court found that the Board complied with
the notice requirements of § 5103(a). Accordingly, we lack
jurisdiction to hear Mr. Russell’s appeal.
We have considered Mr. Russell’s remaining argu-
ments and conclude that they are without merit. Accord-
RUSSELL v. MCDONALD 5
ingly, we dismiss Mr. Russell’s appeal for lack of jurisdic-
tion.
DISMISSED
No costs.