Arnold Freedman v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ARNOLD J. FREEDMAN,
Claimant-Appellant,
v.
Eric K. Shinseki,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
______________________
2012-7098
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-4117, Judge Robert N. Davis.
______________________
Decided: March 11, 2013
______________________
ARNOLD J. FREEDMAN, of Woodbury, New York, pro se.
CORINNE A. NIOSI, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her 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 MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and JONATHAN E. TAYLOR, Attorney,
2 ARNOLD FREEDMAN v. SHINSEKI
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before MOORE, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
Claimant-Appellant Arnold Freedman appeals the de-
cision of the United States Court of Appeals for the Veter-
ans Claims (“Veterans Court”) affirming a November 24,
2010 decision of the Board of Veterans’ Appeals (“Board”).
Freedman v. Shinseki, No. 10–4117, 2012 WL 268266(Vet. App. Jan. 31, 2012). The Veterans Court affirmed
the Board’s decision denying an earlier effective date on
the basis of clear and unmistakable error (“CUE”). We
dismiss for lack of jurisdiction.
BACKGROUND
Mr. Freedman served on active duty in the Army from
March 5, 1953 to December 12, 1953. The record indi-
cates that Mr. Freedman had a difficult time adjusting to
military service. Mr. Freedman’s difficulties remained
consistent, which the record shows led to his perception of
the Army as unfair and discriminatory. 1 Mr. Freedman
eventually became more hostile and paranoid, and in
September 1953 about six months into his military ser-
vice, it was recommended he be admitted for observation
and be evaluated for neuropsychiatric problems.
1 For example, there was an incident in which Mr.
Freedman was incorrectly charged with being away
without leave when he overstayed a three-day pass for the
Jewish holidays. Although the court martial verdict was
overturned and apologies were issued when it turned out
that he had taken ill while at home, that experience and
other further difficulties exacerbated Mr. Freedman’s
perception of the Army.
ARNOLD FREEDMAN v. SHINSEKI 3
During his admission, it was discovered Mr. Freed-
man had a prior history of psychiatric problems. In
particular, he reported a prior history of problems with
authority figures at work, as well as narcissistic and
grandiose thought patterns. He received a diagnosis of
schizophrenic reaction, paranoid type, chronic, moderate,
manifested by looseness of associations, paranoid idea-
tion, delusions of persecution, ideas of reference, and
grandiose productions. The examiner further opined that
there was no evidence of impairment of his social or
industrial capacity beyond that of his pre-service level
adjustment. A physical evaluation board also noted this
condition exited prior to service and was not in the line of
duty. As a result, Mr. Freedman was discharged in
December 1953—less than a year from his entrance into
service.
The day after separation from service, Mr. Freedman
filed a claim for disability benefits for a “nervous condi-
tion.” Pursuant to that claim he received an initial VA
medical examination, which stated in relevant part:
The Army diagnosed schizophrenia, in complete
remission. They noted a “looseness of association”
and grandiose and paranoid trends. I do not think
this diagnosis is correct. The whole story, as out-
lined in the Army records and as not given by him
in retrospect, can be explained as a manifestation
of an immature personality. In my opinion he has
paranoid trends but is not psychotic. To be sure,
his ability to withstand stress is not good, and it is
possible he may some day break down, but for rat-
ing purposes at present I would diagnose him as .
. . [p]assive-aggressive personality.
Appendix (“App.”) at 46–47. Relying on this analysis, and
its own medical analysis, the rating board at the Regional
Office (“RO”) denied the claim. Mr. Freedman did not
appeal this decision (“1954 Rating Decision”).
4 ARNOLD FREEDMAN v. SHINSEKI
On December 30, 2005, the RO received a claim from
Mr. Freedman requesting service connection for schizo-
phrenia. Finding new and material evidence had been
submitted, the Board reopened Mr. Freedman’s prior
claim for service connection in March 2008, and granted
service connection for the anxiety disorder in October
2008. On remand, the RO effectuated the Board’s deci-
sion granting service connection for anxiety disorder,
assigning an initial 30 percent rating from December 30,
2005. December 30, 2005 was assigned as the effective
date pursuant to 38 U.S.C. § 5110. 2 Mr. Freedman disa-
greed with the assignment of the effective date, arguing
that the effective date should be the day after his separa-
tion from service, and he appealed the RO’s effective date
determination to the Board. At a hearing before the
Board in September 2010, Mr. Freedman presented a
CUE theory for the first time arguing that the 1954
Rating Decision was in error, which if found to be true,
would allow his effective date to relate back to the date of
that decision. 38 C.F.R. § 3.105(a) (“For the purpose of
authorizing benefits, the rating or other adjudicative
decision which constitutes a reversal of a prior decision on
the grounds of clear and unmistakable error has the same
2 38 U.S.C. § 5110(i) states, in relevant part:
Whenever any disallowed claim is reopened and thereaf-
ter allowed on the basis of new and material evidence . . .
the effective date of commencement of the benefits so
awarded shall be the date on which an application was
filed for correction of the military record or for the change,
modification, or correction of a discharge or dismissal, as
the case may be, or the date such disallowed claim was
filed, whichever date is the later, but in no event shall
such award of benefits be retroactive for more than one
year from the date of reopening of such disallowed claim.
ARNOLD FREEDMAN v. SHINSEKI 5
effect as if the corrected decision had been made on the
date of the reversed decision.”).
In a November 24, 2010 decision, the Board found
that Mr. Freedman’s request of an effective date as the
day after his separation from service relates back to the
1954 Rating Decision, which he had not appealed and was
therefore final. As a result, the Board noted that decision
could only be revised upon a collateral attack showing
that the RO committed CUE. The Board concluded that
Mr. Freedman had not established CUE, and the Veter-
ans Court affirmed. Mr. Freedman filed a timely appeal
to this court.
DISCUSSION
This court has jurisdiction to review decisions by the
Veterans Court with respect to a “challenge to the validity
of any statute or regulation or any interpretation thereof.”
38 U.S.C. § 7292(c). We lack jurisdiction to review factual
determinations or the application of law to fact, except to
the extent that a veteran’s appeal presents a constitu-
tional issue. Id. § 7292(d)(2).
In order for his effective date to relate back to 1954,
Mr. Freedman requests revision of the unappealed 1954
Rating Decision on the basis of CUE, which is a collateral
attack of a final decision. Disabled Am. Veterans v. Gober,
234 F.3d 682, 696–98 (Fed. Cir. 2000). With respect to
the CUE claim, 38 U.S.C. § 5109A authorizes the Secre-
tary to revise an earlier, final decision if the decision is
the product of a clear and unmistakable error. Therefore,
in order to revise a final decision, it must be the case that:
(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 mani-
6 ARNOLD FREEDMAN v. SHINSEKI
festly changed the outcome at the time it was
made,” and
(3) A determination that there was CUE must be
based on the record and the law that existed at
the time of the prior adjudication in question.
Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008)
(citing Russell v. Principi, 3 Vet. App. 310 (1992)); see
Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2002) (en
banc).
The controlling regulation that existed at the time of
the 1954 Rating Decision included the following provision:
Every person employed in active service shall be
taken to have been in sound condition when exam-
ined, accepted and enrolled for service except as to
defects, infirmities or disorders noted at the time
of examination, acceptance and enrollment or
where clear and unmistakable evidence demon-
strates that the injury or disease existed prior to
acceptance and enrollment and was not aggravat-
ed by such service.
38 C.F.R. § 3.63(b) (1954). The regulation also defined
“clear and unmistakable” as “obvious or manifest.” 38
C.F.R. § 3.63(d). In view of this provision, the Veterans
Court began its review of the Board’s decision with a
reading of the 1954 Rating Decision. The court took note
of the decision’s conclusion: “No matter what the NP
[neuropsychiatric] disability may eventually be in this
case, it is clear and convincing that it existed prior to
induction and that his Army experiences did not result in
permanent increase in the basic level thereof.” Freedman,
2012 WL 268266 at *2 (alteration in the original, empha-
sis added, and internal citation omitted).
ARNOLD FREEDMAN v. SHINSEKI 7
Accordingly, the Veterans Court rejected Mr. Freed-
man’s contention that the RO’s application of an incorrect
legal standard was outcome determinative. The Veteran’s
Court, while recognizing the RO’s error in the use of the
“clear and convincing” standard as opposed to the “clear
and unmistakable” standard, nevertheless, found that in
a CUE matter, the appellant has the additional burden of
showing that absent the error the outcome would have
been “manifestly different.” Id. at *3.
The Veterans Court determined that Mr. Freedman
cannot show that the outcome would have been “manifest-
ly different” for at least two reasons. First, the Veterans
Court noted that the RO accepted the initial VA examina-
tion’s diagnosis of a passive-aggressive personality disor-
der, which was a noncompensable disability under the
regulation. See 38 C.F.R. § 3.63(f) (1954). Therefore,
according to the court, the existence of this noncompensa-
ble condition would not have affected the decision of the
RO in denying service connection.
In addition, the Veterans Court determined that Mr.
Freedman failed to contend how the RO committed clear
and unmistakable error in light of the evidence document-
ing his problems as existing prior to service. Hence, the
Veterans Court held that it was “unable to say that the
Board erred in finding that the 1954 [R]ating [D]ecision
did not involve undebatable error that, had it not been
made, would have manifestly changed the outcome of that
decision.” Freedman, 2012 WL 268266 at *4 (internal
citations omitted).
On appeal to this court, Mr. Freedman contends that
“[e]verything happened in the Army, not prior to or ag-
gravated in service . . . All evidence prior to entering
service states no medical or mental condition.” Appellant’s
Informal Br., Resp. No. 2. Also, in response to the third
question in the Appellant’s Informal Brief, Mr. Freedman
suggests that the 1954 Rating Decision failed to apply 38
8 ARNOLD FREEDMAN v. SHINSEKI
C.F.R. § 3.63(b). Id., Resp. No. 3. Generally, Mr. Freed-
man makes similar arguments previously presented to
the Board and the Veterans Court.
As to his first contention, “[w]hether evidence regard-
ing the veteran’s pre-existing condition rises to the level
of ‘clear and unmistakable evidence’ is simply the applica-
tion of the facts to the legal standard” an issue that the
Federal Circuit is without jurisdiction to consider.
Waltzer v. Nicholson, 447 F.3d 1378, 1380 (Fed. Cir. 2006)
(quoting Belcher v. West, 214 F.3d 1335, 1338 (Fed. Cir.
2000)). In other words, we do not have jurisdiction to
consider the Board’s and the Veterans Court’s review of
the RO’s 1954 Rating Decision in determining whether
the evidence in the record was sufficient to constitute
clear and unmistakable evidence. With regard to Mr.
Freedman’s second contention, this court also lacks juris-
diction to consider this argument. Indeed, Mr. Freed-
man’s reference to 38 C.F.R. § 3.63(b) does not raise any
questions involving an interpretation of the regulation
itself, but rather whether, assuming error, the error was
outcome determinative. Based on facts in the record, the
Veterans Court found that misapplication of the “clear
and unmistakable” language as recited in 38 C.F.R. §
3.63(b) did not affect the outcome. We lack jurisdiction
over such factual determinations.
All other arguments Mr. Freedman presents are with-
out merit. In particular, Mr. Freedman does not provide
any explanation as to how his constitutional rights may
have been implicated in the Veterans Court’s affirmance
of the November 24, 2010 Board Decision. Accordingly,
they are not before this court for review. See 38 U.S.C.
7292(a). Thus, we dismiss this case for lack of jurisdic-
tion.
DISMISSED.
No costs.