El Malik v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RASHID EL MALIK,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7009
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-458, Judge Robert N. Davis.
______________________
Decided: February 12, 2014
______________________
RASHID EL MALIK, of Palos Verde’s Estate, California,
pro se.
STEVEN M. MAGER, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and FRANKLIN E. WHITE, JR., Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and LARA K. EILHARDT, Attor-
2 EL MALIK v. SHINSEKI
ney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before RADER, Chief Judge, O’MALLEY, and HUGHES,
Circuit Judges.
PER CURIAM.
Veteran Rashid El Malik appeals the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming two decisions of the Board of
Veterans’ Appeals (“Board”). The Board found no clear
and unmistakable error (“CUE”) in a 2006 Board decision
granting special monthly compensation (“SMC”) at the
intermediate “n and a half” rate between 38 U.S.C.
§ 1114(n) and (o), rather than the rate specified at 38
U.S.C. § 1114(r). The Board also determined that a 2010
Board decision contained CUE to the extent it granted El
Malik a higher rating for a wrist injury as of September
22, 2009, rather than the earlier date of June 23, 2009.
The Board did not agree with El Malik, however, that his
rating increase should date back to September 3, 2003.
El Malik now appeals the decision of the Veterans
Court alleging that the Veterans Court: (1) misinterpret-
ed 38 U.S.C. § 1114(r) in light of 38 C.F.R. § 4.71a Diag-
nostic Code (“DC”) 5055 Note 2, causing it to affirm the
Board’s erroneous conclusion of no CUE; and (2) erred in
denying him entitlement to a September 3, 2003 effective
date for his increased wrist disability rating. For the
reasons below, we affirm the judgment of the Veterans
Court regarding El Malik’s request for SMC and dismiss
El Malik’s appeal relating to his wrist disability rating for
lack of jurisdiction.
BACKGROUND
El Malik served on active duty in the U.S. Army from
January 1968 to June 1969. El Malik v. Shinseki, No. 12-
EL MALIK v. SHINSEKI 3
458, 2013 WL 3243398, at *1 (Vet. App. June 27, 2013).
As of September 1991, El Malik was rated as 100 percent
disabled for several service-connected disabilities, includ-
ing post-traumatic stress disorder (“PTSD”). Id.In June 2005, a Department of Veterans Affairs
(“VA”) Regional Office (“RO”) awarded El Malik a 10
percent disability rating for right wrist derangement,
effective July 9, 2004. Id. In a May 2006 decision, the
Board awarded El Malik SMC for the loss of the use of
both legs, effective September 3, 2003. Id. In support,
the Board noted that El Malik was losing the ability to
walk as early as September 2003, and required the per-
manent use of crutches since undergoing bilateral knee
replacement surgeries in September 2004. Id. The Board
awarded El Malik SMC at the “n and a half” rate as a
result of his combined disabilities. 1 Id. It then denied
additional SMC under section 1114(r), finding that an
award under section 1114(r) was unauthorized where the
veteran qualified only for SMC at the “n and a half” rate
1 SMC is available when a veteran suffers hard-
ships above and beyond those contemplated by the VA’s
schedule for rating disabilities as a result of service-
connected disability. See generally 38 U.S.C. § 1114(k)–
(s). Basic levels of SMC are listed in section 1114(k). A
veteran can qualify for higher levels of SMC under sec-
tions 1114(l), (m), (n), and (o) if they meet certain criteria.
See generally 38 U.S.C. § 1114(l)–(o). Depending on the
circumstances, the Secretary may award a precise rate of
SMC, or may choose an intermediate rate between the
various SMC levels, e.g., “m and a half” or “n and a half.”
See 38 U.S.C. § 1114(p). In addition, a veteran can re-
ceive additional SMC under section 1114(r) for “aid and
attendance” if they meet criteria specified in that provi-
sion. See 38 U.S.C. § 1114(r).
4 EL MALIK v. SHINSEKI
and not also at a rate authorized under section 1114(k).
Id.In a June 23, 2009 orthopedic examination, a VA ex-
aminer found ankylosis of the right wrist in an unfavora-
ble position and loss of function. 2 A27. The examiner
filed a report on September 22, 2009. In October 2009,
the Appeals Management Center (“AMC”) awarded an
increased rating for El Malik’s right wrist derangement,
increasing El Malik’s rating from 10 percent to 70 per-
cent, effective as of September 22, 2009. A34–35. The
AMC noted that the increase was based on the examiner’s
September 22, 2009 medical opinion. A35. El Malik
appealed the AMC’s decision, contending that his in-
creased rating should date back to September 2003, when
he received a private medical opinion that his right wrist
would one day need fusing. In a January 2010 decision,
the Board upheld this rating and denied El Malik’s claims
for a rating higher than 10 percent earlier than Septem-
ber 2009, because “there was no evidence of functional
loss necessitating a 70% rating until the September 2009
examination.” El Malik, 2013 WL 3243398, at *1.
2 In February 2007, the Board remanded for an ad-
ditional medical examination to obtain additional infor-
mation regarding the right wrist, among other things. On
May 15, 2009, El Malik filed a petition for a writ of man-
damus seeking to compel the medical examination as no
medical examination had yet been scheduled. On June 4,
2009, the Veterans Court ordered that the Secretary,
within 15 days of the order, file a status report on the
petitioner’s claims, state where the petitioner’s file is
currently being processed, and inform the court of when
the Board-ordered medical examinations are scheduled to
take place. El Malik v. Shinseki, No. 09-1868, 2009 WL
1546367, at *2 (Vet. App. June 4, 2009).
EL MALIK v. SHINSEKI 5
El Malik asserted CUE with respect to both the May
2006 and January 2010 decisions. Id. at *2. In February
2012, the Board found no CUE in the 2006 decision grant-
ing SMC at a rate less than that assigned under 38 U.S.C.
§ 1114(r)(2). Id. The Board did find CUE, however, in the
January 2010 decision, but only to the extent it granted a
higher rating for El Malik’s wrist injury as of September
22, 2009, when the medical report was filed, rather than
as of June 23, 2009, when the VA medical examination
was conducted. Id.On appeal, the Veterans Court affirmed all aspects of
the February 2012 Board decision. Id. at *1. In support,
the Veterans Court stated that it “cannot find that the
Board decision finding no CUE in the May 2006 decision
was arbitrary, capricious, or an abuse of discretion,”
because “the Board provided an adequate explanation
concerning the relevant statutory provisions in its Febru-
ary 2012 decision.” Id. at *3. The Veterans Court also
rejected El Malik’s argument that he is entitled to an
effective date of September 2003, for his right wrist
disability. Id. In reaching this decision, the Veterans
Court found that El Malik simply disagreed with how the
Board weighed the medical evidence relating to his wrist
injury that existed as of September 2003 and that “disa-
greement with how the Board evaluated or weighed
evidence cannot substantiate an allegation of CUE.” Id.(citation omitted).
El Malik appeals the decision of the Veterans Court.
DISCUSSION
I. Standard of Review
This Court has limited jurisdiction to review decisions
of the Veterans Court. Wanless v. Shinseki, 618 F.3d
1333, 1336 (Fed. Cir. 2010). Absent “a constitutional
issue, [this Court] may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or
6 EL MALIK v. SHINSEKI
regulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2). Instead, this Court must decide “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions” and must set aside any
regulation or any interpretation thereof “other than a
determination as to a factual matter” relied upon by the
Veterans Court that it finds to be “(A) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; (B) contrary to constitutional right, power,
privilege, or immunity; (C) in excess of statutory jurisdic-
tion, authority, or limitations, or in violation of a statuto-
ry right; or (D) without observance of procedure required
by law.” 38 U.S.C. § 7292(d)(1).
This Court reviews legal determinations of the Veter-
ans Court de novo. Buchanan v. Nicholson, 451 F.3d
1331, 1334 (Fed. Cir. 2006). This de novo review includes
questions of statutory and regulatory interpretation.
Andre v. Principi, 301 F.3d 1354, 1358 (Fed. Cir. 2002).
II. SMC Relating to Knee Disability
CUE is a collateral attack on a final Board decision,
and “is a very specific and rare kind of error.” 38 C.F.R.
§ 20.1403. For CUE to exist, either (1) “the correct facts,
as they were known at the time, were not before the
adjudicator or [(2)] the statutory or regulatory provisions
extant at the time were incorrectly applied.” Russell v.
Principi, 3 Vet. App. 310, 313 (1992) (en banc). The error
must be undebatable, and manifestly change the outcome
of the prior decision based on the record or law at the time
of the decision. Id. at 313–14.
El Malik argues that the Board erred in not finding
CUE in the denial of additional SMC because it mistaken-
ly based that finding on an interpretation of 38 U.S.C.
§ 1114(r), rather than on 38 C.F.R. § 4.71a DC 5055 Note
2.
EL MALIK v. SHINSEKI 7
38 U.S.C. § 1114(r) states:
[I]f any veteran, otherwise entitled to compensa-
tion authorized under subsection (o) of this sec-
tion, at the maximum rate authorized under
subsection (p) of this section, or at the intermedi-
ate rate authorized between the rates authorized
under subsections (n) and (o) of this section and at
the rate authorized under subsection (k) of this
section, is in need of regular aid and attendance,
then, in addition to such compensation--
(1) the veteran shall be paid a monthly aid
and attendance allowance at the rate of
$2,002; or
(2) if the veteran, in addition to such need
for regular aid and attendance, is in need
of a higher level of care, such veteran shall
be paid a monthly aid and attendance al-
lowance at the rate of $2,983 in lieu of the
allowance authorized in clause (1) of this
subsection, if the Secretary finds that the
veteran, in the absence of the provision of
such care, would require hospitalization,
nursing home care, or other residential in-
stitutional care.
38 U.S.C. § 1114(r).
The Veterans Court, like the Board before it, inter-
preted the plain language of section 1114(r) to require an
SMC award under either section (o), section (p), or both
section “n and a half” and section (k), prior to providing
an award for aid and attendance. A4. Specifically, it
noted that eligibility under section 1114(r) requires an
additional award under section 1114(k) if the veteran has
an SMC award under the “n and a half” rate. A4. We
agree with this interpretation; the plain language of
section 1114(r) is clear. 38 U.S.C. § 1114(r) authorizes aid
8 EL MALIK v. SHINSEKI
and attendance for veterans who have an SMC rating
under either section (o), section (p), or section “n and a
half,” with an additional rating under section (k). 38
C.F.R. § 3.350(h) further supports this reading, explaining
that, for SMC under section 1114(r), the veteran must be
entitled to “the maximum rate under 38 U.S.C. 1114 (o) or
(p)” or “the intermediate rate between 38 U.S.C. 1114(n)
and (o) plus special monthly compensation under 38
U.S.C. 1114(k).” (emphasis added). While El Malik has
an SMC rating at the “n and a half” rate, he does not have
an additional SMC rating under section 1114(k). Conse-
quently, he could not qualify for additional SMC under
section 1114(r).
El Malik does not dispute this reading of 1114(r). He
asserts, however, that discussion of section 1114(r) is
irrelevant to his claim. He argues that DC 5055 Note 2
and 38 U.S.C. § 1156(d) entitle him to receive “aid and
attendance” SMC, separate and apart from the SMC
authorized in section 1114(r), because his surgery result-
ed in the permanent use of crutches. Inf. Br. Appellant 4.
38 C.F.R. § 4.71a DC 5055 relates to knee replacements
(prosthesis). It provides for a 100 percent rating for one
year following implantation of prosthesis for prosthetic
replacement of a knee joint. 38 C.F.R. § 4.71a DC 5055
Note 2 states that “[SMC] is assignable during the 100 pct
rating period the earliest date permanent use of crutches
is established.” (emphasis added). 38 U.S.C. § 1156(d)
states that “[n]othing in this section shall be construed to
preclude the Secretary from providing a temporary disa-
bility rating under an authority other than this section.”
Nowhere does Note 2 or section 1156(d) mandate or
require the award of SMC. Note 2 only clarifies that SMC
is assignable during this temporary period of convales-
cence. Note 2 provides no information about the level of
SMC for which a veteran might qualify during the tempo-
rary 100 percent rating period. Instead, the criteria for
SMC is set forth in 38 U.S.C. § 1114 and 38 C.F.R.
EL MALIK v. SHINSEKI 9
§ 3.350. 3 As the Board found, El Malik was already at a
100 percent disability rating and had already been
awarded SMC based on his multiple service-connected
disabilities when he had his knee surgeries. As such, the
question as of the date of his knee surgeries was whether
El Malik was entitled to additional SMC. That question
is governed by section 1114(r).
El Malik disagrees and argues that the Veterans
Court’s application of 38 U.S.C. § 1114(r) in his circum-
stances conflicts with 38 C.F.R. § 4.71a DC 5055 Note 2.
Inf. Br. Appellant 5. He contends that, since the 100
percent rating period is limited to one year, it authorizes
a temporary assignment of benefits, regardless of his
prior disability level. He alleges that a veteran is always
entitled to additional SMC, regardless of his prior disabil-
ity, as long as he requires the permanent use of crutches
after knee replacement. As explained above, however,
Note 2 does not automatically entitle a veteran to SMC; a
veteran must still meet the qualifications for SMC under
the relevant SMC provisions. We find no conflict between
the statute and the implementing regulation; SMC is
assignable during a temporary 100 percent rating period
of convalescence as long as the veteran meets the criteria
for SMC set forth in 38 U.S.C. § 1114.
Accordingly, we find no legal error in the Veterans
Court’s analysis and affirm the Veterans Court’s decision
that the Board did not commit CUE in denying additional
SMC to El Malik.
3 El Malik’s attempts to classify SMC into tempo-
rary and permanent categories have no basis in statute or
regulation. The criteria for eligibility for SMC remains
centered in 38 U.S.C. § 1114 and 38 C.F.R. § 3.350.
10 EL MALIK v. SHINSEKI
III. Right Wrist Disability
On appeal, El Malik raises multiple arguments re-
garding his right wrist disability, including: (1) that the
AMC did not provide adequate reasons and bases for
setting the effective date for the 70 percent rating as of
his 2009 VA medical examination and did not look at the
evidence in the light most favorable to the appellant, and
(2) that the AMC prejudiced him because of unreasonable
delays in conducting the VA medical examination. 4 The
Government responds that this Court does not possess
jurisdiction to consider these arguments. We agree.
This Court does not possess jurisdiction to review
the AMC’s rating decision. See 38 U.S.C. § 7292. The
Board denied El Malik’s claims for a rating higher than
10 percent earlier than September 2009, because “there
was no evidence of functional loss necessitating a 70%
rating until the September 2009 examination.” El Malik,
2013 WL 3243398, at *1. The Board reviewed the Sep-
tember 2003 examination and found that it was con-
sistent with the earlier 10 percent rating given to El
Malik. Specifically, the Court explained that the Board
found that El Malik’s symptoms of pain, weakness, and
trouble gripping supported a 10 percent rating and that
contemplation of future wrist fusion did not constitute a
compensable injury justifying a current higher rating. Id.
at *3. To the extent El Malik expresses factual disagree-
ment with this evaluation and weighing of the evidence,
we lack jurisdiction to address such issues. See 38 U.S.C.
4 El Malik also asserts that his private physician is
“more qualified than the VA’s own medical evaluator and
[thus] his medical opinions are more probative.” Inf. Br.
Appellant 7. Because we read this argument to request a
reweighing or reevaluation of the evidence, we decline to
address this argument for a lack of jurisdiction.
EL MALIK v. SHINSEKI 11
§ 7292(d)(2); Bastien v. Shinseki, 599 F.3d 1301, 1306
(Fed. Cir. 2010).
El Malik then argues that we possess jurisdiction be-
cause he is asking that we review, not how the facts were
applied, but how they were ignored. He appears to allege
that the lack of an express discounting of facts in the
record means that those facts were not considered. The
VA is presumed to have considered all evidence of record,
however. See Newhouse v. Nicholson, 497 F.3d 1298, 1302
(Fed. Cir. 2007). We find that El Malik is simply asking
us to reweigh or reevaluate the evidence, which we lack
jurisdiction to do so.
El Malik finally argues that, but for the delay in re-
ceiving his VA medical examination, he would have
received an earlier effective date. El Malik’s argument
does not articulate any challenge to the validity or inter-
pretation of a statute or regulation in the Veterans
Court’s decision which would give rise to jurisdiction in
this Court. 5 See 38 U.S.C. § 7292(a), (d)(2). We, therefore
decline to address it.
CONCLUSION
For these reasons, we affirm the Veterans Court deci-
sion regarding El Malik’s request for additional SMC and
dismiss his appeal regarding the effective date of his right
wrist disability rating for lack of jurisdiction.
AFFIRMED
No Costs.
5 El Malik also did not argue this issue before the
Board, and thus cannot raise this here in the first in-
stance. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed.
Cir. 2002).