Norman Peterson v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMAN E. PETERSON,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7133
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-2433, Judge Alan G. Lance, Sr.
______________________
Decided: April 25, 2013
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
SHELLEY WEGER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were STUART F. DELERY,
Principal Deputy Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assis-
2 NORMAN PETERSON v. SHINSEKI
tant Director. Of counsel on the brief were DAVID J.
BARRANS, Deputy Assistant General Counsel and MARTIE
ADELMAN, Attorney, United States Department of Veter-
ans Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, LOURIE, and WALLACH, Circuit
Judges.
PER CURIAM.
Norman E. Peterson, a U.S. Navy veteran, appeals
from a decision by the United States Court of Appeals for
Veterans Claims (“Veterans Court”) affirming a March 30,
2010 Board of Veterans’ Appeals (“Board”) decision that
found there was no clear and unmistakable error (“CUE”)
in a September 6, 1973 rating decision (“September 1973
Rating Decision”) that granted total disability resulting
from individual unemployability (“TDIU”), effective June
27, 1973. Peterson v. Shinseki, No. 10–2433, 2012 WL
87578, at *1 (Vet. App. Jan. 12, 2012). In February 2006,
Mr. Peterson sought to revise the September 1973 Rating
Decision on the basis of CUE, and on March 30, 2010, the
Board determined that the September 1973 Rating Deci-
sion was not the result of CUE. The Veterans Court
agreed, reasoning that the alleged error was not outcome-
determinative. See Willsey v. Peake, 535 F.3d 1368, 1371
(Fed. Cir. 2008) (holding that CUE required a showing
that the alleged error in the challenged decision “would
have manifestly changed the outcome at the time it was
made”) (citing Russell v. Principi, 3 Vet. App. 310 (1992)).
We lack jurisdiction to review these decisions because Mr.
Peterson fails to raise “challenge[s] to the validity of any
statute or regulation” or any interpretation of “constitu-
tional or statutory provisions.” 38 U.S.C. § 7292(c).
Rather, he raises factual issues or the application of law
to fact over which this court lacks jurisdiction. Id. §
7292(d)(2).
NORMAN PETERSON v. SHINSEKI 3
Mr. Peterson contends the Veterans Court erred in af-
firming the Board’s decision not to address the merits of
Mr. Peterson’s contention that the Board misapplied 38
C.F.R. § 3.156(a)(1973). This purported error, according
to Mr. Peterson, in turn was a violation of 38 U.S.C. §
7104(a), which requires the Board to consider and apply
all potentially applicable provisions of law and regulation.
As such, Mr. Peterson avers that this case involves an
interpretation of both statute and a regulation.
Mr. Peterson’s assertions that the Veterans Court
misinterpreted § 7104(a) and misapplied § 3.156(a) are
unpersuasive. Contrary to his contention, neither the
Veterans Court nor the Board failed to consider or misap-
plied § 3.156(a). 1 Rather, the Veterans Court found that
“[t]he Board acknowledged the appellant’s § 3.156 argu-
ment, but explained that it could not establish an outcome
determinative error.” J.A. 3. In noting the Board’s finding
that § 3.156 could not establish an outcome-determinative
error, the Veterans Court recognized that the Board
considered § 3.156 to the extent it was relevant to the
CUE claim and concluded that even assuming that a
1 38 C.F.R. § 3.156(a) (1973) provided that
“[n]ew and material evidence received prior to the expira-
tion of the appeal period, or prior to the appellate deci-
sion, will be considered as having been filed in connection
with the claim which was pending at the beginning of the
appeal period.” Mr. Peterson argues that under the
correct interpretation of the regulation, the RO was
obligated to determine whether new and material evi-
dence received related to a pending claim and treat that
evidence as if it was filed in connection with the pending
claim. Therefore, Mr. Peterson contends that determining
whether the new and material evidence relates to a
“pending claim” was required as an initial step and the
failure to do so was error.
4 NORMAN PETERSON v. SHINSEKI
TDIU claim was pending since 1967, an effective date
prior to June 1973 was not supported by the record. J.A.
4. Hence, Mr. Peterson’s argument regarding § 7104(a) is
not directed at any interpretation of a statute or regula-
tion but at the factual finding made by the Board, and
affirmed by the Veterans Court, that the alleged failure to
apply § 3.156 was not outcome-determinative. Yates v.
West, 213 F.3d 1372, 1375 (Fed. Cir. 2000). This court
lacks jurisdiction to review this factual determination.
DISMISSED