Kelly v. McDonald

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS W. KELLY,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7048
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1342, Judge Coral Wong
Pietsch.
______________________
Decided: February 9, 2015
______________________
KENNETH M. CARPENTER, Law Offices of Carpen-
ter Chartered, Topeka, KS, for claimant-appellant.
ALLISON KIDD-MILLER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by STUART F. DELERY, ROBERT E. KIRSCHMAN;
TRACEY PARKER WARREN, DAVID J. BARRANS, Office of
2 KELLY v. MCDONALD
General Counsel, United States Department of Veteran’s
Affairs, Washington, DC.
______________________
Before TARANTO, MAYER, and CLEVENGER, Circuit
Judges.
PER CURIAM.
Thomas W. Kelly appeals a final judgment of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision by the Board of
Veterans’ Appeals (“board”) not to reconsider his claim for
an earlier effective date for the award of benefits for total
disability based on individual unemployability (“TDIU”).
See Kelly v. Shinseki, No. 12-1342, 2013 WL 5928065
(Vet. App. Nov. 6, 2013). We dismiss for lack of jurisdic-
tion.
Our jurisdiction to review decisions of the Veterans
Court is circumscribed by statute. We have authority to
review “the validity of a decision of the [Veterans] Court
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.” 38 U.S.C. § 7292(a); see Flores v.
Nicholson, 476 F.3d 1379, 1381 (Fed. Cir. 2007). Unless
an appeal presents a constitutional issue, however, we are
precluded from reviewing a challenge to a factual deter-
mination or a challenge to a law or regulation as it is
applied to the facts of a particular case. 38 U.S.C.
§ 7292(d)(2).
Kelly argues that the Veterans Court misinterpreted
governing law when it concluded that he was not preju-
diced by the board’s failure to reconsider whether he was
entitled to an earlier effective date for the award of TDIU
benefits based upon his Briquet’s syndrome. Contrary to
Kelly’s assertions, however, neither the Veterans Court
KELLY v. MCDONALD 3
nor the board interpreted 38 U.S.C. § 7261(b)(2) or 38
C.F.R. § 416(a) in denying his claim. See Githens v.
Shinseki, 676 F.3d 1368, 1372 (Fed. Cir. 2012) (dismissing
an appeal for lack of jurisdiction where the decision of the
Veterans Court was “silent as to the adoption of a particu-
lar interpretation of [38 C.F.R. § 416(a)]”). Instead, the
Veterans Court evaluated the evidence and concluded
that Kelly suffered no prejudice as a result of the board’s
failure to reconsider whether he was entitled to an earlier
effective date for the award of TDIU benefits. This harm-
less error ruling is a factual determination that we are
without authority to review. Pitts v. Shinseki, 700 F.3d
1279, 1286 (Fed. Cir. 2012); Newhouse v. Nicholson, 497
F.3d 1298, 1302 (Fed. Cir. 2007); see also Bastien v.
Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The
evaluation and weighing of evidence and the drawing of
appropriate inferences from it are factual determinations
committed to the discretion of the fact-finder. We lack
jurisdiction to review these determinations.”).
DISMISSED