Walsh v. McDonald

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RORY M. WALSH,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1584
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1445, Judge Coral Wong
Pietsch.
______________________
Decided: July 13, 2016
______________________
RORY M. WALSH, York, PA, pro se.
CHRISTOPHER KEITH WIMBUSH, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., SCOTT D. AUSTIN; CHRISTINA LYNN
GREGG, Y. KEN LEE, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
2 WALSH v. MCDONALD
______________________
Before PROST, Chief Judge, SCHALL and CHEN, Circuit
Judges.
PER CURIAM.
DECISION
Rory M. Walsh appeals the final decision of the Unit-
ed States Court of Appeals for Veterans Claims (“Veter-
ans Court”) in Walsh v. McDonald, No. 14-1445, 2015 WL
5092674 (Vet. App. Aug. 31, 2015), adhered to on denial of
reconsideration, 2015 WL 6159120 (Vet. App. Oct. 20,
2015). In that decision, the Veterans Court affirmed the
April 11, 2014 decision of the Board of Veterans Appeals
(“Board”) that (1) denied entitlement to an effective date
prior to July 27, 2004, for a 30-percent disability rating
for residuals of a left shoulder dislocation and degenera-
tive joint disease of the left shoulder (“shoulder condi-
tion”); and that (2) dismissed a claim for entitlement to an
effective date prior to July 27, 2004, for service connection
for a left ankle strain (“ankle condition”), on the ground
that, in a decision dated May 7, 2009, the Board had
denied the claim and Mr. Walsh had not appealed.
Walsh, 2015 WL 5092674 at *1–2, 7. We dismiss for lack
of jurisdiction.
DISCUSSION
I.
Mr. Walsh served on active duty in the United States
Marine Corps from February of 1978 to November of 1993
and from January of 1996 to March of 1996. On Novem-
ber 30, 1993, he filed a claim for service connection for his
shoulder and ankle conditions. On May 19, 1994, a Vet-
erans Administration (“VA”) regional office (“RO”) granted
service connection for the shoulder condition and assigned
a noncompensable disability rating, effective from No-
vember 2, 1993, but denied service connection for the
WALSH v. MCDONALD 3
ankle condition. Mr. Walsh did not appeal the May 19,
1994 decision, which therefore became final.
On July 27, 2004, Mr. Walsh asked the RO for an in-
creased disability rating for his shoulder condition. He
also asked the RO to reopen his claim for his ankle condi-
tion. In February of 2005, the RO increased the disability
rating for Mr. Walsh’s shoulder condition to 20 percent,
effective from July 27, 2004, but continued to deny service
connection for his ankle condition. Mr. Walsh filed a
timely Notice of Disagreement, and the RO issued State-
ments of the Case (“SOCs”) on January 25, 2006, and
April 4, 2006, respectively. In an August 2008 decision,
the RO granted Mr. Walsh an increased disability rating
of 30 percent for his shoulder condition, effective from
July 27, 2004, and granted him service connection for his
ankle condition and assigned a disability rating of
20 percent, also effective from July 27, 2004. On May 7,
2009, the Board remanded to the RO the question of an
earlier effective date for Mr. Walsh’s shoulder condition
because the RO had failed to issue an SOC on the point.
At the same time, the Board denied Mr. Walsh’s claim for
an earlier effective date for his ankle condition.
Eventually, following the Board’s 2009 decision (and
subsequent proceedings before the RO, the Board, and the
Veterans Court, which we need not recount), the Board
issued its April 11, 2014 decision. Mr. Walsh appealed
that decision to the Veterans Court, and on August 31,
2015, the court affirmed the Board’s decision. The Veter-
ans Court found that the Board had not erred in deter-
mining that Mr. Walsh was not entitled to service-
connection effective dates prior to July 27, 2004, for his
shoulder and ankle conditions. This appeal followed.
II.
Our ability to review a decision of the Veterans Court
is limited. Pursuant to 38 U.S.C. § 7292(a), we may
review “the validity of a decision of the [Veterans] Court
4 WALSH v. MCDONALD
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 [Veterans] Court
in making the decision.” We have exclusive jurisdiction
“to review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof
brought under [38 U.S.C. § 7292], and to interpret consti-
tutional and statutory provisions, to the extent presented
and necessary to a decision.” 38 U.S.C. § 7292(c). How-
ever, except to the extent that an appeal presents a con-
stitutional issue, we “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” Id.
§ 7292(d)(2). For the reasons which follow, we hold that
Mr. Walsh has failed to present any arguments that come
within the scope of our jurisdiction.
III.
First, the validity of a statute or regulation was not at
issue in the Veterans Court, and the Veterans Court, in
its decision, did not interpret any statute or regulation.
An interpretation of a statute or regulation occurs when
its meaning is elaborated upon by the court. Graves v.
Principi, 294 F.3d 1350, 1355 (Fed. Cir. 2002) (citing
Forshey v. Principi, 284 F.3d 1335, 1349 (Fed. Cir. 2002)
(en banc) (superseded on other grounds by statute, Pub. L.
No. 107-330, § 402(a), 116 Stat. 2820, 2832 (2002))). That
did not occur in this case. Mr. Walsh argues, for example,
that he never received a statement of his appellate rights
(i.e., VA Form 4107) after the May 19, 1994 RO decision.
But the Veterans Court, in affirming the Board’s finding
that he received such notice, did not rely upon an inter-
pretation of a statute or regulation, and Mr. Walsh does
not argue to the contrary.
Mr. Walsh does argue that his appeal presents a con-
stitutional issue. He bases this argument mainly on the
contention that the Veterans Court deprived him of his
WALSH v. MCDONALD 5
rights under the confrontation clause of the Sixth
Amendment by refusing to order the VA to produce what
he refers to as various “falsified” medical records. The
Sixth Amendment states that “[i]n all criminal prosecu-
tions, the accused shall enjoy the right . . . to be confront-
ed with the witnesses against him.” U.S. CONST. amend.
VI. The proceedings before the VA and the Veterans
Court did not involve a criminal prosecution, however.
Therefore, the Sixth Amendment does not apply. See
Austin v. United States, 509 U.S. 602, 608 (1993) (“The
protections provided by the Sixth Amendment are explic-
itly confined to ‘criminal prosecutions.’”) (citing United
States v. Ward, 448 U.S. 242, 248 (1980)). Beyond that,
Mr. Walsh also makes allegations of misconduct against
VA entities, VA officials, and members of the Veterans
Court, and his briefing contains references to an alleged
attempted murder. Although it is not clear, it appears
that Mr. Walsh may be making these allegations in
support of a claim that, in general, his constitutional
rights have been violated. In any event, assuming
Mr. Walsh’s allegations could be viewed as supporting
arguments that come within the scope of our jurisdiction,
there is no support for them in the record. We therefore
decline to consider them. See Hagans v. Lavine, 415 U.S.
528, 536–37 (1974) (explaining that “federal courts are
without power to entertain claims otherwise within their
jurisdiction if they are so attenuated and unsubstantial as
to be absolutely devoid of merit, wholly insubstantial,
obviously frivolous, plainly unsubstantial, or no longer
open to discussion”) (internal quotations and citations
omitted); Schafer v. Dep’t of Interior, 88 F.3d 981, 989
(Fed. Cir. 1996) (quoting Hagans, 415 U.S. at 536–37). In
sum, Mr. Walsh has failed to raise a valid constitutional
issue.
Finally, putting aside the allegations we have just
discussed, we have reviewed Mr. Walsh’s opening brief
and reply brief to determine whether, insofar as his
6 WALSH v. MCDONALD
claims relating to his shoulder and ankle conditions are
concerned, he has presented us with any arguments that
we have jurisdiction to consider. We have been unable to
find any such arguments. To the extent Mr. Walsh focus-
es on his shoulder and ankle conditions, his contentions
all involve the application of law to the facts of the case.
We thus lack jurisdiction to consider them. Sullivan v.
McDonald, 815 F.3d 786, 789 (Fed. Cir. 2016) (explaining
that “[w]e may not review factual determinations or
application of law to fact”); Delisle v. McDonald, 789 F.3d
1372, 1374 (Fed. Cir. 2015) (same).
CONCLUSION
Because, as explained, Mr. Walsh has failed to pre-
sent any non-frivolous arguments which we have jurisdic-
tion to consider, his appeal is dismissed.
DISMISSED
COSTS
Each party shall bear its own costs.