Martinez v. Wilkie

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDWARD C. MARTINEZ,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-2153
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2176, Judge Coral Wong
Pietsch.
______________________
Decided: December 6, 2018
______________________
EDWARD C. MARTINEZ, Marana, AZ, pro se.
DANIEL KENNETH GREENE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by JOSEPH H. HUNT, ALLISON KIDD-MILLER,
ROBERT EDWARD KIRSCHMAN, JR.; CHRISTINA LYNN GREGG,
BRIAN D. GRIFFIN, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
2 MARTINEZ v. WILKIE
______________________
Before MOORE, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
Edward C. Martinez appeals the decision of the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”),
which affirmed the decision of the Board of Veterans’
Appeals denying his claim that it was clear and unmis-
takable error (“CUE”) to assign him a 30% disability
rating, instead of a 60% rating, for his service-connected
heart condition in a rating decision from March 1965.
Because the Veterans Court did not commit legal error in
its decision finding that the 1965 rating decision was not
based on CUE, we affirm.
BACKGROUND
Mr. Martinez served honorably in the U.S. Marine
Corps from May 13, 1960 to April 8, 1964. During his
service, he had two episodes of a sudden rapid heart rate,
known as tachycardia. A Veterans Affairs (“VA”) exami-
nation from January 1965 (“1965 VA Examination”)
states that he had experienced four such episodes in his
life. The VA examiner determined these episodes were
the result of “[c]omplete bundle branch block, cause
undetermined.” S.A. 47. On March 2, 1965, the VA
regional office assigned him a 30% disability rating.
Mr. Martinez did not appeal this decision, and it became
final. On August 28, 2002, Mr. Martinez was hospitalized
for his heart condition. The VA increased his disability
rating to 60% effective August 28, 2002.
Mr. Martinez argued his 60% rating should apply ret-
roactively to April 9, 1964, the effective date of his origi-
nal disability rating, based on CUE. The VA regional
office denied his CUE claim, and the Board agreed. The
Veterans Court affirmed. Mr. Martinez appeals.
MARTINEZ v. WILKIE 3
DISCUSSION
We have jurisdiction to review the Veterans Court’s
decision with respect to its validity on a rule of law or its
interpretation of any statute or regulation that it relied
on in making the decision. 38 U.S.C. § 7292(a). We
review legal determinations of the Veterans Court de
novo. Willsey v. Peake, 535 F.3d 1368, 1372 (Fed. Cir.
2008). We may not review “a challenge to a factual de-
termination” or “a challenge to a law or regulation as
applied to the facts of a particular case,” unless the appeal
presents a constitutional issue. 38 U.S.C. § 7292(d)(2).
To establish CUE, the following must be demonstrat-
ed:
(1) “Either the correct facts, as they were known
at the time, were not before the adjudicator or the
statutory or regulatory provisions extant at the
time were incorrectly applied”; (2) “The error must
be undebatable and the sort which, had it not
been made, would have manifestly changed the
outcome at the time it was made”; and (3) “A de-
termination that there was CUE must be based on
the record and the law that existed at the time of
the prior adjudication in question.”
Cousin v. Wilkie, 905 F.3d 1316, 1319 (Fed. Cir. 2018)
(quoting Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed.
Cir. 2012)).
Mr. Martinez argues that based on events that oc-
curred after 1965, we should hold that the 1965 rating
decision contains CUE. To the extent that Mr. Martinez
is arguing that the decision as a legal matter should be
revisited based on subsequent events, we disagree. A
CUE claim “must be based on the record and the law that
existed at the time of the prior adjudication in question.”
Cousin, 905 F.3d at 1319. As a result, we cannot look to
subsequent events as the basis for CUE.
4 MARTINEZ v. WILKIE
Mr. Martinez also argues the 1965 rating decision did
not properly implement the diagnostic codes. He argues
that had the decision considered the correct number of
episodes of tachycardia noted in his medical history, he
would have been entitled to a 60% disability rating.
There is no allegation that medical records were missing.
Mr. Martinez only takes issue with how the decision
interpreted the facts and applied them to the diagnostic
codes. We lack jurisdiction to decide whether a higher
rating was warranted based on the facts in the medical
record because, absent a constitutional issue, we cannot
review questions of fact or the application of law to fact.
38 U.S.C. § 7292(d)(2).
CONCLUSION
We have reviewed Mr. Martinez’s other arguments
and find them unpersuasive. For the foregoing reasons,
we affirm.
AFFIRMED
COSTS
No costs.