Parker v. O'Rourke

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BILL PARKER, JR.,
Claimant-Appellant
v.
PETER O'ROURKE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2018-1656
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-4196, Judge Mary J. Schoelen.
______________________
Decided: July 16, 2018
______________________
BILL PARKER, JR., Clermont, FL, pro se.
DANIEL KENNETH GREENE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR., CHAD A. READLER; LARA EILHARDT, Y.
KEN LEE, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
2 PARKER v. O'ROURKE
Before PROST, Chief Judge, NEWMAN and LINN,
Circuit Judges.
PER CURIAM.
Appellant Bill Parker appeals an order of the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”)
holding that it did not have jurisdiction to hear his claim
for a total disability rating based on individual unemploy-
ability (“TDIU”) for the period of January 1, 1987, to
January 1, 1996. The Veterans Court also found that the
Board of Veterans Appeals (“the Board”) complied with a
remand order directing it to find whether he was entitled
to an earlier effective date for his service-connected disa-
bility, although it is unclear whether Mr. Parker is ap-
pealing that issue. Mr. Parker requests that this court
grant him a TDIU rating for the period of January 1, 1987
to January 1, 1996, or, alternatively, a 70% disability
rating for his service-connected disability for the same
time period.
For the reasons set forth below, this court affirms the
Veterans Court’s finding that it lacked jurisdiction to
consider the TDIU claim. We also conclude that we lack
jurisdiction to consider Mr. Parker’s alternative claim for
a 70% disability rating. To the extent that Mr. Parker is
appealing the Veterans Court’s finding that the Board
complied with the remand order, we conclude that the
Veterans Court applied the proper standards in review-
ing the Board’s decision. We otherwise lack jurisdiction
to review the Veterans Court’s findings on the Board’s
decision that Mr. Parker was not entitled to an earlier
effective date for his service-connected disability.
I
Mr. Parker served in the Army from October 1977 to
October 1980 and from May 1981 to December 1986. He
first filed a claim for disability compensation in August
PARKER v. O'ROURKE 3
1987 and was granted a non-compensable rating for
adjustment disorder with a depressed mood. After subse-
quent medical exams with the Department of Veterans
Affairs (“VA”), his condition was re-characterized as major
depression, and he was granted a 30% disability rating for
his psychiatric disorder with an effective date of July
2004. In 2005, Mr. Parker also filed for TDIU, and in
2007 the Regional Office granted Mr. Parker TDIU with a
70% disability rating with an effective date of July 2004,
pursuant to regulation 38 C.F.R. § 4.16. Mr. Parker
subsequently requested an increased rating for his psy-
chiatric disorder and an earlier effective date of January
1, 1987. Following several appeals and reconsiderations
of his prior medical records by the VA Regional Office and
the Board, Mr. Parker was ultimately granted a 100%
disability rating for service-connected bipolar disorder
with an effective date of September 1996. In that decision
by the Board, it also denied Mr. Parker’s request for an
earlier effective date for that disability rating.
On appeal, the Veterans Court remanded the case to
the Board with instructions to (a) determine whether any
medical reports prior to September 1996 constituted an
informal claim for increased compensation for his bipolar
disorder and, if not, then (b) provide an adequate state-
ment of the reasons for that finding. Prior to March 24,
2015, a VA Medical Center treatment record or report of
hospitalization that indicated a worsening of the veteran’s
service-connected disability constituted an informal claim
for an earlier effective date for increased benefits. 38
C.F.R. § 3.157(b)(1); see also Massie v. Shinseki, 25 Vet.
App. 123,132 (2011) aff’d, 724 F.3d 1325 (Fed. Cir. 2013).
In its 2016 decision following the remand from the
Veterans Court, the Board found that medical reports
between 1990 and 1994 indicated that his condition had
4 PARKER v. O'ROURKE
not worsened during that period. 1 Therefore, the Board
concluded that his medical reports did not constitute
informal claims for increased disability compensation
within the meaning of the regulations, and he was not
entitled to an earlier effective date than September 1996
for his service-connected bipolar disorder. In that deci-
sion, the Board did not consider his request for total
disability based on individual unemployability.
Mr. Parker appealed the Board’s decision, arguing
that it (a) failed to properly consider his TDIU claim for
the period of January 1, 1987 to January 1, 1996 and
(b) failed to fully comply with the remand order in its
findings on an earlier effective date for a compensable
rating for his service-connected bipolar disorder. The case
before us presents a review of the Veterans Court’s deci-
sion on that appeal.
In its 2018 decision on appeal here today, the Veter-
ans Court dismissed Mr. Parker’s TDIU claim concluding
that it did not have jurisdiction to address the issue
because the Board did not consider it in its 2016 decision.
See 38 U.S.C. 7252(a); see also Howard v. Gober, 220 F.3d
1341, 1344 (Fed. Cir. 2000). The Veterans Court also
found that, despite committing a harmless error, the
Board had substantially complied with the remand order
regarding its denial of an earlier effective date for Mr.
Parker’s service-connected bipolar disorder.
The Veterans Court entered judgment on March 6,
2018, and Mr. Parker timely appealed to this court.
1 The Board also heard Mr. Parker’s claims related
to a left knee disability. Although Mr. Parker includes
facts in his informal appeal that appear to relate to this
issue, those claims have not been raised in this appeal.
PARKER v. O'ROURKE 5
II
Under 38 U.S.C. § 7292, this court has limited juris-
diction to review decisions by the Veterans Court. See
Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010).
This court may review a question as to the validity of a
law, as well as a legal challenge to the Veterans Court’s
interpretation of a statute or regulation. However, if no
constitutional issue is raised, then this court cannot
review any factual determinations made by the Veterans
Court, or any challenge to how the Veterans Court ap-
plied law or regulation to the facts of the case. 38 U.S.C.
§ 7292; see also Cayat v. Nicholson, 429 F.3d 1331, 1333
(Fed. Cir. 2005). As such, we also do not have jurisdiction
to award benefits. See 38 U.S.C. § 7292.
Mr. Parker argues on appeal that the Veterans Court
failed to correctly decide his request for TDIU for the
period of January 1, 1987, to January 1, 1996. Mr. Parker
requests that we grant TDIU for that period pursuant to
the relevant regulation, 38 C.F.R. § 4.16. The Veterans
Court dismissed Mr. Parker’s request for TDIU on the
basis that it did not have jurisdiction to hear that issue.
That decision raises a question of statutory interpretation
of the Veterans Court’s jurisdiction that this court can
review. Ledford v. West, 136 F.3d 776, 778 (Fed. Cir.
1998).
The Veterans Court found that it lacked jurisdiction
to hear Mr. Parker’s claim for TDIU because the 2016
decision by the Board did not consider this claim. Under
38 U.S.C. § 7252(a), the Veterans Court cannot review an
issue if the Board has not rendered a final decision on it.
See Howard, 220 F.3d at 1344. As the government notes,
Mr. Parker submitted an application for TDIU in 2015,
but withdrew it shortly thereafter. Additionally, when
the Veterans Court remanded Mr. Parker’s case to the
Board, it noted that he could submit evidence or argu-
ment for TDIU. Mr. Parker, however, did not submit any
6 PARKER v. O'ROURKE
evidence or make any argument regarding TDIU before
the Board.
As a result, the only issue considered by the Board in
its 2016 decision was whether Mr. Parker was entitled to
an earlier effective date for a 100% disability rating for
his service-connected bipolar disorder. In its review of the
Board’s 2016 decision, the Veterans Court thus properly
concluded that it could not consider Mr. Parker’s request
for TDIU in the first instance because no final decision on
the matter had been issued by the Board.
Mr. Parker asserts in his informal brief that he
worked nine different jobs in ten years and was dis-
charged from the army because he could not advance in
rank. To the extent that Mr. Parker is arguing that the
Veterans Court failed to consider those facts in reviewing
his claim for TDIU, or that the Board failed to consider
those facts as evidence for his TDIU claim, we do not have
jurisdiction to analyze Mr. Parker’s factual allegations.
38 U.S.C. § 7292; see also Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000). Because the Board did not decide
the issue of Mr. Parker’s TDIU, the Veterans Court was
correct to conclude that it could not hear that issue for
lack of jurisdiction. We affirm and conclude that we also
cannot hear the claim for TDIU in the first instance.
For similar reasons, this court does not have jurisdic-
tion to consider Mr. Parker’s alternative request for a 70%
disability rating for his service-connected bipolar disorder
for the period of January 1, 1987, to January 1, 1996. We
do not have jurisdiction to hear issues that were neither
raised before, nor decided by, the Veterans Court.
Emenaker v. Peake, 551 F.3d 1332, 1337 (Fed. Cir. 2008)
(citing Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir.
2002) (en banc)). As the government correctly notes, even
if Mr. Parker had raised this issue before the Veterans
Court, that court would have again encountered the issue
that it lacked jurisdiction because the Board had also not
PARKER v. O'ROURKE 7
considered Mr. Parker’s request for a 70% disability
rating in its 2016 decision either. Howard, 220 F.3d at
1344.
To the extent that Mr. Parker is appealing his request
for an earlier effective date for a 100% disability rating for
his service-connected bipolar disorder, this court would
again lack the jurisdiction to review the Veterans Court
decision because it involved an application of law to the
Board’s review of Mr. Parker’s medical records. We do not
have jurisdiction to review applications of law to the facts
of a case. 38 U.S.C. § 7292(d)(2).
Finally, to the extent that Mr. Parker’s brief can be
construed as appealing the Veterans Court’s finding of
harmless error, our jurisdiction would be limited to de-
termining whether the Veterans Court applied the proper
standard for prejudicial error as prescribed by statute. 38
U.S.C. § 7261(b)(2) (requiring the court to take due ac-
count of the rule of prejudicial error). The Veterans Court
applies the same standard in determining whether an
error is prejudicial or harmless as any other court hearing
a civil proceeding would, namely, whether the error
affected the party’s substantial rights. Shinseki v. Sand-
ers, 556 U.S. 396, 409 (2009). A harmless error analysis
can involve several factors but generally speaks to wheth-
er the error affected the judgment. Id. at 411–12.
In its review of the Board’s compliance with the re-
mand order, the Veterans Court found that the Board
committed a harmless error by not expressly finding
whether Mr. Parker was “examined or hospitalized”
within the meaning of 38 C.F.R. § 3.157 prior to 1996.
The Veterans Court found this to be harmless error
because the Board’s review of Mr. Parker’s medical re-
ports indicated that his condition had not worsened and
would therefore not constitute an informal claim for
increased benefits. The failure to make this express
finding, as the Veterans Court explained, did not affect
8 PARKER v. O'ROURKE
the analysis of Mr. Parker’s records with regard to his
claim for an earlier effective date for his service-connected
bipolar disorder. The determination by the Veterans
Court that Mr. Parker’s substantial rights were not
affected by the Board’s error and that he did not prove
otherwise was therefore an application of the proper
prejudicial error standard mandated by 38 U.S.C.
§ 7261(b)(2). See Sanders, 556 U.S. at 409.
In conclusion, the Veterans Court properly found that
it lacked jurisdiction to hear Mr. Parker’s claim for TDIU
for the period of January 1, 1987, to January 1, 1996. The
decision of the Veterans Court dismissing Mr. Parker’s
TDIU claim for lack of jurisdiction is therefore affirmed.
We also do not have jurisdiction to hear, in the first
instance, Mr. Parker’s claims for TDIU or a 70% disability
rating for the same period. Finally, we conclude that to
the extent the issue is raised, the Veterans Court applied
the proper prejudicial error standard to the Board’s
decision regarding Mr. Parker’s claim for an earlier
effective date for his service-connected bipolar disorder,
and this court otherwise cannot review the factual find-
ings as to that claim.
AFFIRMED
COSTS
The parties shall bear their own costs.