Cohens v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEROME COHENS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7123
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-941.
______________________
Decided: December 11, 2013
______________________
JEROME COHENS, of Miami, Florida, pro se.
NATHANAEL B. YALE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and SCOTT D. AUSTIN, Assistant Director. Of counsel
on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and LARA K. EILHARDT, Attorney, Unit-
2 COHENS v. SHINSEKI
ed States Department of Veterans Affairs, of Washington,
DC.
______________________
Before PROST, PLAGER, and CHEN, Circuit Judges.
PER CURIAM.
Jerome Cohens appeals from an order of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying his petition for a writ of mandamus.
Because Mr. Cohens’s appeal raises no legal questions
over which we have jurisdiction, we dismiss.
BACKGROUND
Mr. Cohens served on active duty in the U.S. Marine
Corps from December 1978 to February 1979. The U.S.
Department of Veterans Affairs (“VA”) Regional Office
(“Regional Office”) granted Mr. Cohens’s claim of a service
connection for low-back strain, along with a noncompen-
sable disability rating effective February 1979. On April
9, 1998, Mr. Cohens filed a claim at the Regional Office
for an increased disability rating. In November 1998 the
Regional Office increased his rating from 10% to 60%,
effective April 9, 1998.
On February 16, 2005, the Board of Veterans Appeals
(“Board”) denied an earlier effective date for the 60%
rating. Mr. Cohens alleged that the Board committed
clear and unmistakable error, claiming that the diagnosis
was delayed as a result of the long time it took to go
through appointments and treatments at the VA hospital
at which he was receiving care. On December 3, 2007, the
Board denied Mr. Cohens’s motion for reversal and revi-
sion. The Veterans Court affirmed the Board’s 2007
decision on October 22, 2009. Subsequent to the Veterans
Court’s decision, Mr. Cohens filed numerous motions for
reconsideration of the Board’s decision, all of which were
denied, including most recently on November 19, 2012.
COHENS v. SHINSEKI 3
While the latter motion was pending, Mr. Cohens sent
a letter on March 15, 2013 to the Veterans Court asking
the court to “immediately speak with” the Deputy Vice
Chairman of the Board asking that his claim for benefits
be granted. This correspondence was deemed to be an
application for extraordinary relief, in the nature of a writ
of mandamus. On April 10, 2013, while Mr. Cohens’s
mandamus petition was pending at the Veterans Court,
the Board notified Mr. Cohens that it had denied his
November 2012 motion for reconsideration on the basis of
its failure to present arguments showing error in the
Board’s decisions. Subsequently, on April 23, 2013, the
Veterans Court denied Mr. Cohens’s mandamus petition
on the grounds that the Board had not delayed unreason-
ably in acting on his motion for reconsideration and that a
writ of mandamus cannot substitute for the regular
appeals process. This appeal followed.
DISCUSSION
Our review of Veterans Court decisions is strictly lim-
ited by statute. Pursuant to 38 U.S.C. § 7292(a), we may
review the decision “with respect to the validity of a
decision of the Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on
by the Court in making the decision.” We may not review
findings of fact or application of a law or regulation to the
facts, except to the extent that an appeal presents a
constitutional issue. 38 U.S.C. § 7292(d)(2).
This limited jurisdiction applies to the review of the
Veterans Court’s decision whether to grant a petition for a
writ of mandamus. See Lamb v. Principi, 284 F.3d 1378,
1381-82 (Fed. Cir. 2002). For the extraordinary remedy of
a writ to be issued, a petitioner must show that there is a
clear and undisputable right to the relief sought and no
alternative channels for obtaining relief. Cheney v. U.S.
Dist. Court, 542 U.S. 367, 380-81 (2004). We do not have
4 COHENS v. SHINSEKI
jurisdiction to review the appeal of a petition that raises
only issues of fact in the absence of a non-frivolous legal
question. Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed.
Cir. 2013).
On appeal, Mr. Cohens reiterates the allegations that
were made in previous appeals and motions for reconsid-
eration regarding the VA’s assessment of the April 1998
effective date for his service rating. Giving Mr. Cohens’s
informal briefing the broadest latitude, his mandamus
petition raises three issues.
First, Mr. Cohens alleges that the Veterans Court
erred in its 2009 decision when it did not give appropriate
weight to an earlier 1980 diagnosis in determining the
effective date of his disability rating. Mr. Cohens’s allega-
tion raises only a question of the Veterans Court’s appli-
cation of law to fact, over which we lack jurisdiction. 38
U.S.C. § 7292(d)(2).
Second, Mr. Cohens alleges that the VA failed in its
duty to assist by not providing him with timely diagnoses,
and that the Board committed clear and unmistakable
error by refusing to consider this delay in its 2005 deci-
sion denying him an earlier effective date for his service
rating. The VA’s duty to assist, however, is not a legal
basis for finding clear and unmistakable error in a service
rating decision. 38 C.F.R § 20.1403(d); Cook v. Principi,
318 F.3d 1334, 1344 (Fed. Cir. 2002). Mr. Cohens’s chal-
lenge on these grounds therefore raises no legal question
over which we would have appellate jurisdiction.
Third, Mr. Cohens claims that the results of a 1981
diagnostic test at the Miami VA hospital, which he claims
were not available to him at the time of the Board’s 2007
decision, would constitute a new basis for providing an
earlier effective date for his service rating. We do not
have jurisdiction over the appeal of a claim of clear and
unmistakable error that was not previously adjudicated
COHENS v. SHINSEKI 5
by the Board. Andre v. Principi, 301 F.3d 1354, 1361
(Fed. Cir. 2002).
In light of the foregoing, the grounds for the extraor-
dinary relief that Mr. Cohens seeks are entirely based on
issues that we cannot review for lack of jurisdiction. On
appeal, Mr. Cohens has provided no other reason why we
should reverse the Veterans Court’s denial of his manda-
mus petition. Accordingly, we dismiss.
We note that Mr. Cohens raised the foregoing issues
in his previous appeals, and the Veterans Court duly
considered them in its 2009 decision affirming the Re-
gional Office’s determination. Mr. Cohens should recog-
nize that he has a means of seeking relief with respect to
the 1981 test results or any other evidence that may be
new and material to his case: he may at any time present
it to the Regional Office in order to seek to reopen his
disability claim or to initiate a new claim of clear and
unmistakable error. See 38 C.F.R. § 3.156; 38 U.S.C.
§ 5109A(d).
DISMISSED
COSTS
Each party shall bear its own costs.