Vincent v. Shulkin

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLAUDE PHILLIP VINCENT,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1735
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-436, Judge Margaret C. Bart-
ley.
______________________
Decided: August 22, 2017
______________________
CLAUDE PHILLIP VINCENT, Kerernsville, NC, pro se.
JEFFREY LOWRY, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., L. MISHA
PREHEIM; BRIAN D. GRIFFIN, AMANDA BLACKMON, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 VINCENT v. SHULKIN
______________________
Before LOURIE, MOORE, and HUGHES, Circuit Judges.
PER CURIAM.
Claude P. Vincent appeals the November 28, 2016 de-
cision of the Court of Appeals for Veterans Claims (“Vet-
erans Court”), affirming the decision of the Board of
Veterans’ Appeals (“Board”) assigning a rating of service-
connected depression at 70 percent and service-connected
hypertension at 10 percent. Because this court lacks
jurisdiction to consider the merits of Mr. Vincent’s Veter-
ans Court appeal and the constitutional issue he raises
lacks merit, we affirm.
BACKGROUND
Mr. Vincent served on active duty in the United
States Navy from March 1972 to May 1976. In 2007,
Mr. Vincent submitted claims for service connection for
hypertension and depression. The Regional Office (“RO”)
denied Mr. Vincent’s claim for hypertension and granted
service connection for depressive disorder at a 50 percent
rating. Mr. Vincent timely filed Notices of Disagreement
with respect to both decisions.
In February 2011, Mr. Vincent testified at a Board
hearing regarding his claims for service-connected de-
pression and hypertension. In October 2011, the Board
granted an increased evaluation of 70 percent for
Mr. Vincent’s service-connected depression. Mr. Vincent
timely appealed the Board’s denial of a rating in excess of
70 percent, and in September 2012, the Veterans Court
granted the parties’ joint motion for remand, which stipu-
lated that the Board provided inadequate reasons for its
determination. The Board remanded the depression
claim to the RO for examination.
In the October 2011 decision, the Board also granted
service connection for hypertension at a 10 percent rating.
VINCENT v. SHULKIN 3
In January 2013, Mr. Vincent appealed the 10 percent
evaluation, but because the appeal was untimely, the
Department of Veterans Affairs (“VA”) construed the
request as a claim for increased evaluation and the hyper-
tension claim was referred to the RO for adjudication in
the first instance.
The RO examined Mr. Vincent for both depressive
disorder and hypertension and assigned evaluations of 70
percent for service-connected depression and 10 percent
for service-connected hypertension. On January 20, 2015,
Mr. Vincent submitted a VA Form 9, appealing the RO’s
evaluations to the Board and requesting a Board hearing.
On September 19, 2015, the Board notified
Mr. Vincent that he was scheduled for a Board hearing on
November 9, 2015. Four days later, Mr. Vincent submit-
ted a second VA Form 9, again requesting a Board hear-
ing. On October 27, 2015, Mr. Vincent sent the Board a
letter asking that the Board “process the return of my VA
Appeal claims back to the [RO],” return all files to the RO,
and cancel the hearing scheduled for November 9. Supp.
App. 33. The Board interpreted the letter as a withdraw-
al of the request for a hearing under 38 C.F.R. § 20.704(e),
and no hearing was held. The Board considered the
transcript of the February 2011 hearing as part of the
appellate record.
In January 2016, the Board issued a decision denying
increased evaluations for service-connected depression
and hypertension. The Veterans Court affirmed the
Board’s decision. Mr. Vincent timely petitioned this court
for review.
DISCUSSION
Our jurisdiction over this appeal is limited. We may
review challenges to the validity or interpretation of a
statute or regulation relied on by the Veterans Court and
may interpret constitutional and statutory provisions “to
4 VINCENT v. SHULKIN
the extent presented and necessary to a decision.”
38 U.S.C. § 7292(c). Except to the extent that an appeal
presents a constitutional issue, we do not have jurisdic-
tion to review a challenge to a factual determination or
the “law or regulation as applied to the facts of a particu-
lar case.” Id. § 7292(d)(2).
Mr. Vincent argues he was denied his constitutional
due process rights when the Board canceled the hearing
he previously requested and decided his appeal instead of
immediately remanding to the RO. He argues that the
Board denied his right to be present at Board hearings to
present additional evidence.
A veteran is entitled to a hearing “[u]pon request.” 38
C.F.R. § 3.103(c)(1). The purpose of a hearing is to allow
the veteran to introduce into the record, in person, any
evidence which he considers material and pertinent to his
claims. Id. § 3.103(c)(2). In his first submitted VA
Form 9, Mr. Vincent indicated that he wanted to appeal
all RO determinations and stated that the RO “ignored all
the documents and medical records that has [sic] been
associated with hypertension.” Supp. App. 38. He also
requested a Board hearing. Id. He made the same repre-
sentations in his second submitted VA Form 9. Supp.
App. 34.
The Veterans Court subsequently held that
Mr. Vincent withdrew his request for a hearing.
Mr. Vincent requested “that the hearing that you notified
me of on 26 October 2015, scheduled for 09 November
2015 at 1:00 pm be cancelled.” Supp. App. 33. The Board
informed Mr. Vincent by letter that “[a] hearing is not
necessary to decide your case, [and] we can make a deci-
sion on the appellate record as it is.” Supp. App. 37.
After Mr. Vincent requested that his hearing be cancelled,
the Board proceeded to evaluate his appeal on the appel-
late record. We see no due process violation in these
facts.
VINCENT v. SHULKIN 5
To the extent Mr. Vincent challenges the RO’s ratings
determinations, the Veterans Court’s affirmance of the
Board’s decision to deny increased evaluations involves
the application of law to fact over which we lack jurisdic-
tion. We have considered Mr. Vincent’s remaining argu-
ments and find them unpersuasive.
CONCLUSION
For the foregoing reasons, the decision of the Veterans
Court is affirmed.
AFFIRMED
COSTS
No costs.