Carter v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
DION J. CARTER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7022
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-3285, Judge John J.
Farley, III.
__________________________
Decided: April 6, 2012
__________________________
DION J. CARTER, of Highland, California, pro se.
VINCENT D. PHILLIPS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and CLAUDIA BURKE, Assistant Director.
__________________________
2 CARTER v. SHINSEKI
Before LINN, O'MALLEY, and REYNA, Circuit Judges.
PER CURIAM.
Dion J. Carter (“Carter”) appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a decision of the Board of
Veterans’ Appeals (“Board”) finding that Carter did not
qualify for a statutory exception to the standard period of
eligibility for dependent’s educational assistance (“DEA”)
benefits. See Carter v. Shinseki, No. 10-3285 (Vet. App.
Oct. 21, 2011). Because Carter’s appeal raises only fac-
tual issues beyond this court’s authority to review, the
appeal is dismissed.
Carter, the son of Henry J. Carter, a veteran with
100% disabling service-connected bilateral iritis, filed a
claim for DEA benefits in 2002. That claim was denied
when Carter failed to submit evidence that he was Henry
J. Carter’s son. In 2008, Carter submitted his birth
certificate along with proof of enrollment for education
that he received from 1999 to 2003. While the Depart-
ment of Veterans Affairs (“VA”) at first issued payments
to Carter on this basis, it ultimately decided that the
payments had been improperly made because Carter was
over twenty-six years of age and no longer eligible. The
VA nonetheless granted Carter’s request to waive his
repayment obligation.
On appeal to the Board, Carter argued that he had
never received notice that the VA required proof of par-
entage, nor that his original claim had been denied. The
Board determined that Carter was outside of the eligibil-
ity period for DEA benefits and that he did not qualify for
an exception that would allow him to set the beginning
date of his own eligibility period. Of particular impor-
tance to this appeal, the Board stated that Carter had
admitted that he knew his original claim had been denied
CARTER v. SHINSEKI 3
and that he understood it was because he had not estab-
lished his parentage.
Carter appealed to the Veterans Court, again arguing
that he never received the VA’s request for proof of his
parentage and notice of denial and asking that the Veter-
ans Court grant him his remaining benefits. Applying 38
U.S.C. § 3512(a) and related regulations, the Veterans
Court affirmed the Board’s determination that Carter was
no longer eligible for DEA benefits and did not qualify for
an exception that would allow him to set his own eligibil-
ity start date. The Veterans Court further explained that
the issue of any remaining benefits had been referred to
the Regional Office and was beyond the Veterans Court’s
jurisdiction.
On appeal to this court, Carter does not appear to
contend that the Veterans Court or the Board erred in
interpreting the statute and regulations governing the
eligibility period for DEA benefits. Rather Carter argues
that he never received notice that the VA would not grant
his benefits because it had not received proof of his par-
entage, an issue which Carter frames as constitutional,
and that this court should award him his “remaining
benefits.”
Whether Carter received such notice, however, and
whether that factual dispute is sufficient to raise a consti-
tutional issue which this court would have authority to
review under 38 U.S.C. § 7292(d)(2) is irrelevant. The
notice or absence thereof has nothing to do with the start
date of Carter’s eligibility period, which in this case is
fixed at his 18th birthday by virtue of the fact that his
father was granted service connection and receiving
benefits before Carter turned 18. See 38 C.F.R.
§ 21.3041(a)(2). Moreover, to the extent that Carter
contends that the alleged absence of notice affects the
additional 28 months and 12 days of benefits Carter
asserts he is entitled to receive, and that this court should
4 CARTER v. SHINSEKI
“overturn the Board decision not to grant . . . the remain-
ing benefits,” Appellant’s Br. 2, those benefits were re-
ferred by the Board back to the Regional Office, were not
decided by the Veterans Court, and are not before us.
Carter has raised no issue within this court’s limited
authority to review. Accordingly, the present appeal is
dismissed.
DISMISSED
COSTS
Each party shall bear its own costs.