Swisher v. Wilkie

NOTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELVEN J. SWISHER,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-2268
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-4032, Judge Margaret C.
Bartley.
______________________
Decided: January 16, 2019
______________________
ELVEN J. SWISHER, Cottonwood, ID, pro se.
VITO SALVATORE S OLITRO, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by JOSEPH H. HUNT, R OBERT EDWARD
KIRSCHMAN, JR., LOREN MISHA PREHEIM; CHRISTOPHER O.
ADELOYE , Y. KEN LEE, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
2 SWISHER v. WILKIE
______________________
Before REYNA, SCHALL, and HUGHES, Circuit Judges.
PER CURIAM.
Elven J. Swisher appeals from a decision of the Unit-
ed States Court of Appeals for Veterans Claims affirming-
in-part and dismissing-in-part a decision of the Board of
Veterans’ Appeals upholding a reduction in disability
rating for bilateral hearing loss and a severance of service
connection for post-traumatic stress disorder (“PTSD”).
We affirm the severance of service connection for PTSD
because Mr. Swisher’s due process rights were not violat-
ed and dismiss the remainder of the appeal for lack of
jurisdiction.
BACKGROUND
Mr. Swisher served in the United States Marine
Corps from August 1954 to August 1957. Mr. Swisher’s
certificate of discharge from active duty—form DD-214—
showed that he did not receive any military decorations
during service or incur any wounds as a result of enemy
combat.
In 2001, Mr. Swisher sought service connection for bi-
lateral hearing loss and PTSD. The Department of Vet-
erans Affairs (“VA”) granted Mr. Swisher’s claim for
bilateral hearing loss, assessing a 40% disability rating.
The VA denied his PTSD claim because there was insuffi-
cient evidence that he served in combat.
In February 2004, Mr. Swisher submitted what he
represented was a corrected DD-214, showing that he
sustained wounds from combat in Korea in 1955 and
listing military decorations such as the Purple Heart and
a Navy and Marine Corps Commendation Medal. After
receiving the “corrected” DD-214, the VA granted his
PTSD service connection claim.
SWISHER v. WILKIE 3
In January 2005, the National Personnel Records
Center determined that Mr. Swisher’s military records
showed that he did not receive any decorations, and in
May 2005, the Navy notified the VA that Mr. Swisher’s
“corrected” DD-214 was not authentic. The VA proposed
to sever the PTSD service connection award. The VA
Office of the Inspector General (“OIG”) also conducted an
investigation and determined Mr. Swisher had submitted
an altered DD-214 and that the VA overpaid approxi-
mately $95,000 in benefits. The VA severed the PTSD
service connection award in July 2006, and the OIG sent
the results of its investigation to the U.S. Attorney’s
Office for criminal prosecution. The next month, Mr.
Swisher requested another hearing to reevaluate his
PTSD claim and “to present new evidence.” App. 25.
In January 2009, a jury convicted Mr. Swisher on
three felony counts: (1) making false statements to the
VA; (2) forging a DD-214 to obtain benefits; and (3) theft
of government funds. United States v. Swisher, 790 F.
Supp. 2d 1215, 1224–25 (D. Idaho 2011), rev’d on other
grounds, 811 F.3d 299 (9th Cir. 2016) (en banc) (holding
that a statute criminalizing the unauthorized wearing of
military medals violated the First Amendment). The
court sentenced Mr. Swisher to over twelve months in
prison and three years of supervised release. Id. at 1225.
In March 2013, Mr. Swisher received a hearing exam-
ination that showed improved hearing, and as a result,
the VA reduced his disability rating from 40% to 30%.
Mr. Swisher appealed the reduction in disability rating
and the severance of his PTSD award.
The Board of Veterans’ Appeals (“Board”) determined
that the VA properly severed his PTSD award because it
was based on false statements, finding that his convic-
tions for false statements and forging the DD-214 were
probative evidence against his contrary assertions. The
Board also determined that the VA properly reduced Mr.
4 SWISHER v. WILKIE
Swisher’s disability rating because his 2013 hearing
examination and a separate 2011 examination both
showed hearing acuity that exceeded the 40% disability
rating criteria.
The United States Court of Appeals for Veterans
Claims (“Veterans Court”) affirmed. The Veterans Court
held that the VA properly severed the PTSD award be-
cause it was based on fraud and that there was no clear
error in the Board’s determination that his hearing disa-
bility rating should be reduced. The court rejected Mr.
Swisher’s arguments that the VA failed in its duty to
assist him in obtaining certain documents from a 2004
federal district court case that he claimed would substan-
tiate his PTSD claim. Specifically, the Veterans Court
found that Mr. Swisher had not identified any records
that had a reasonable possibility of substantiating his
claim. The Veterans Court also rejected Mr. Swisher’s
claim that the VA violated his due process rights by
failing to conduct a hearing because he in fact received
and testified in a hearing in 2005 before severance of his
PTSD award and rejected the opportunity for an addi-
tional hearing in a November 2015 letter. Mr. Swisher
now appeals to this court.
DISCUSSION
Section 7292 of title 38 limits our jurisdiction in re-
viewing decisions by the Veterans Court. The court lacks
jurisdiction to review “a challenge to a factual determina-
tion” 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). The court
may “review, and ‘hold unlawful and set aside,’ if war-
ranted, ‘any regulation or any interpretation thereof
(other than a determination as to a factual matter) that
was relied upon in the decision of the [Veterans Court].’”
Graves v. Principi, 294 F.3d 1350, 1354 (Fed. Cir. 2002).
A veteran’s “entitlement to [disability] benefits is a prop-
SWISHER v. WILKIE 5
erty interest protected by the Due Process Clause of the
Fifth Amendment to the United States Constitution.”
Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir.
2009). Whether a claimant was denied a full and fair
hearing on the factual issues of his claim presents a
constitutional issue over which we have jurisdiction. Id.
at 1296–98.
Mr. Swisher challenges the reduction of his disability
rating for bilateral hearing loss and the VA’s severance of
his PTSD claim. 1 Mr. Swisher challenges the reduction of
his hearing disability rating by arguing that the Veterans
Court improperly interpreted the hearing test results. He
challenges the severance of his PTSD award by arguing
that (1) the VA failed in its duty under 38 U.S.C.
§ 5103A(a)(1) to assist him in obtaining relevant records
that he contends would substantiate his claim; and (2) the
VA violated his due process rights by failing to afford him
a requested hearing after severance of his PTSD award.
Mr. Swisher’s argument regarding the reduction in
hearing disability rating asks us to reevaluate the 2011
and 2013 hearing test results. Reevaluating these hear-
ing test results would constitute a review of a factual
determination. We lack jurisdiction to review such a
determination. See Bastien v. Shinseki, 599 F.3d 1301,
1306 (Fed. Cir. 2010).
1 Mr. Swisher also argues that the VA improperly
reduced his rating for right shoulder disability. The
Board remanded his shoulder claims to the VA for further
consideration. We do not have jurisdiction over the
Board’s decision to remand because it does not constitute
an appealable final decision, and Mr. Swisher has not
argued that his shoulder claim meets the requirements of
the jurisdictional exception to finality. See Williams v.
Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002).
6 SWISHER v. WILKIE
Mr. Swisher’s first argument regarding the severance
of the PTSD award is that the VA failed in its duty under
38 U.S.C. § 5103A(a)(1) to assist him in obtaining evi-
dence to substantiate his claim. The VA is not required to
assist in obtaining records that do not have a reasonable
possibility of helping substantiate a claim. 38 U.S.C.
§ 5103A(a)(2); Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed.
Cir. 2010). The Veterans Court found that the records
identified by Mr. Swisher from the 2004 federal court case
did not have a reasonable possibility of substantiating his
claim that his “corrected” DD-214 was valid in light of his
2009 fraud conviction that found the same DD-214 was
fraudulent. Suppl App. 8. Whether certain records have
a reasonable possibility of substantiating a claim is a
factual determination that is not reviewable by this court.
Golz, 590 F.3d at 1322. Accordingly, this court does not
have jurisdiction to review the Veterans Court’s determi-
nation that the VA did not fail in its duty to assist under
§ 5103A(a)(1).
Mr. Swisher’s second argument regarding the sever-
ance of the PTSD award is that the VA violated his Fifth
Amendment due process rights by failing to afford him a
requested hearing after severance of the award. This is
the sole argument raised by Mr. Swisher over which we
have jurisdiction because it raises a constitutional due
process issue: whether Mr. Swisher was afforded a full
and fair hearing in connection with the loss of his PTSD
award. See Cushman, 576 F.3d at 1296–98. Specifically,
Mr. Swisher’s argument is that “[b]y not receiving a
requested personal hearing in calendar year 2006, Swish-
er was denied the Due Process Right of clearing himself of
alleged misconduct.”
As the Veterans Court pointed out, Mr. Swisher re-
ceived notice of the proposed severance of his PTSD
award in June 2005 because the VA determined it was
based on an invalid DD-214. Mr. Swisher submitted
evidence in response and testified at a hearing before a
SWISHER v. WILKIE 7
decision review officer in August 2005. The July 2006
severance decision noted that Mr. Swisher was given the
opportunity to submit evidence and appear and testify at
the August 2005 hearing. In October 2015, the Board
sought clarification regarding Mr. Swisher’s hearing
request that was made after severance of his PTSD claim.
Despite now arguing that he was denied a hearing after
severance of the PTSD award, Mr. Swisher responded in
November 2015, stating that he did not want a Board
hearing and requesting that his appeal instead be ad-
vanced for adjudication.
We hold that the VA did not violate Mr. Swisher’s due
process rights by not scheduling a hearing after the
severance of his PTSD award in response to his request in
2006. The VA gave Mr. Swisher a full and fair hearing
before the severance of the award, and he rejected an
opportunity for a later hearing in 2015. Additionally, the
validity of Mr. Swisher’s “corrected” DD-214 was adjudi-
cated in a full jury trial and found to be fraudulent in
2009, resulting in three felony convictions that were
upheld on appeal. Accordingly, Mr. Swisher’s due process
rights have not been violated.
CONCLUSION
We have considered the remaining arguments raised
by Mr. Swisher over issues for which we have jurisdiction
and find them unpersuasive. The Veterans Court’s de-
termination that the VA did not violate Mr. Swisher’s due
process rights in severing his PTSD award is affirmed.
The remainder of this appeal is dismissed for lack of
jurisdiction.
AFFIRMED-IN-PART, DISMISSED-IN-PART
COSTS
No costs.