Sanders v. McDonough

Case: 22-1252 Document: 35 Page: 1 Filed: 11/09/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARVIN E. SANDERS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1252
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4867, Judge Scott Laurer.
______________________
Decided: November 9, 2022
______________________
MARVIN E. SANDERS, Compton, CA, pro se.
ANN MOTTO, Civil Division, Commercial Litigation
Branch, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY;
AMANDA BLACKMON, Y. KEN LEE, Office of General Coun-
sel, United States Department of Veterans Affairs, Wash-
ington, DC.
______________________
Case: 22-1252 Document: 35 Page: 2 Filed: 11/09/2022
2 SANDERS v. MCDONOUGH
Before REYNA, CHEN, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
Marvin E. Sanders appeals a decision of the U.S. Court
of Appeals for Veterans Claims affirming the Board of Vet-
erans’ Appeals’ denial of earlier effective dates for his dis-
ability benefits and determining that it lacks jurisdiction
over Mr. Sanders’ claim of clear and unmistakable error.
We affirm.
BACKGROUND
Mr. Sanders served on active duty in Vietnam from
September 1972 to September 1976 and from November
1977 to October 1981. Government SApp’x 52 1. While in
service, Mr. Sanders complained of back pain, headaches,
and pain in his right eye. See id. at 70; see also Reply Br. 2.
In August 1986, Mr. Sanders submitted a disability
claim for back, head, and eye injuries, which was denied by
the VA Regional Office (“Regional Office”) in November
1986. See Government SApp’x 70. Mr. Sanders did not ap-
peal that decision and it became final. Id. at 53.
On September 19, 2005, Mr. Sanders filed a claim for
disability benefits due to degenerative disc disease (“DDD”)
of the cervical and lumbar spine. Sanders SApp’x 13-14 2.
The Regional Office denied his claim, and Mr. Sanders
1 “Government SApp’x” refers to the appendix at-
tached to the Government’s Response Brief.
2 “Sanders SApp’x” refers to the appendix attached
to Mr. Sanders’ Opening Brief. The page numbers refer to
the electronic filing system page number at the top of each
page.
Case: 22-1252 Document: 35 Page: 3 Filed: 11/09/2022
SANDERS v. MCDONOUGH 3
timely appealed to the Board of Veterans’ Appeals
(“Board”). Id.
In March 2006, Mr. Sanders sought to reopen his Au-
gust 1986 disability claims for back pain, headaches, and
pain in his right eye. Government SApp’x 31. The Re-
gional Office denied the request, and Mr. Sanders timely
appealed. Id.
On appeal, the Board denied service connection for
DDD of the lumbar spine. Id. at 63. The Board remanded
Mr. Sanders’ claim of service connection for headaches and
head injury, as well as DDD of the cervical spine, because
it found that new and material evidence had been submit-
ted for both of these claims. Id. at 51–67. The Board fur-
ther determined that Mr. Sanders should undergo a VA
examination, which was administered on February 17,
2009. Id. at 46-47, 66.
On August 20, 2010, the Regional Office granted
Mr. Sanders’ claim for disability benefits for (1) headaches
and head injury effective March 31, 2006; (2) DDD of the
cervical spine effective September 19, 2005; and (3) DDD of
the lumbar spine effective February 17, 2009. Sanders
SApp’x 11. Mr. Sanders appealed to the Board, arguing he
was entitled to an effective date of September 13, 1972, for
all claims, which the Board denied. Government
SApp’x 10–26.
Mr. Sanders appealed to the Court of Appeals for Vet-
erans Claims (“the Veterans Court”). He argued that he
was entitled to a 1972 effective date and that the November
1986 rating decision was based on a clear and unmistaka-
ble error (“CUE”). Sanders v. McDonough, 2021 WL
3864370 at *1 (Vet. App. Aug. 31, 2021) (“Decision”). The
Veterans Court affirmed the Board’s decision denying the
earlier effective dates and determined that it lacked juris-
diction over Mr. Sanders’ CUE claims. Id. Mr. Sanders
timely appealed. We have jurisdiction over appeals from
the Veterans Court pursuant to 38 U.S.C. § 7292(a).
Case: 22-1252 Document: 35 Page: 4 Filed: 11/09/2022
4 SANDERS v. MCDONOUGH
STANDARD OF REVIEW
We review the Veterans Court’s legal determinations
de novo. Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed.
Cir. 2014). Our authority over Veterans Court decisions is
limited. We have no authority to engage in fact finding. 38
U.S.C. § 7292(d)(1). We affirm the Veterans Court unless
the decision is “(A) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law; (B) con-
trary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limita-
tions, or in violation of a statutory right; or (D) without ob-
servance of procedure required by law.” Id.DISCUSSION
We affirm the Veterans Court’s determination that
Mr. Sanders was not entitled to earlier effective dates. De-
cision at *1–3. Generally, “the effective date of an award
based on an initial claim . . . shall not be earlier than the
date of receipt of application therefor.” 38 U.S.C.
§ 5110(a)(1). Accordingly, Mr. Sanders is entitled to an ef-
fective date that corresponds with the day each of his disa-
bility claims at issue here were received. We affirm the
Veterans Court’s determination that the effective date for
the DDD of the cervical spine is September 19, 2005—the
date that he filed the initial claim. Decision at *2–3. Re-
garding Mr. Sanders’ remaining claims, we have held that
“the earliest effective date for an award on a reopened
claim is the date of the request for reopening, not the date
of the original claim.” Ortiz v. McDonough, 6 F.4th 1267,
1270–71 (Fed. Cir. 2021) (citing Sears v. Principi, 349 F.3d
1326, 1331 (Fed. Cir. 2003); 38 C.F.R. § 3.400(q)–(r)). We
thus affirm the Veterans Court’s determination that
Mr. Sanders is entitled to an effective date for his disability
benefits for service-connected headaches and head injury
of March 31, 2006, and its determination that Mr. Sanders
“could not receive an effective date earlier than [February
Case: 22-1252 Document: 35 Page: 5 Filed: 11/09/2022
SANDERS v. MCDONOUGH 5
17, 2009]” for the DDD of the lumbar spine. Decision at
*2–3.
Next, Mr. Sanders argues that the Veterans Court
erred in its decision that it lacked jurisdiction over his CUE
claims. The Veterans Court determined that it did not
have jurisdiction over Mr. Sanders’ CUE claims because
Mr. Sanders failed to file a notice of disagreement alleging
CUE occurred in his November 1986 rating decision as re-
quired under 38 U.S.C. § 7105(a). 3 Decision at *4. We have
held that the Veterans Court has jurisdiction over a CUE
claim so long as the veteran raised the CUE claim to the
Regional Office, appealed the adverse decision to the
Board, and then appealed the Board’s adverse decision to
the Veterans Court. Andre v. Principi, 301 F.3d 1354, 1361
(Fed. Cir. 2002). Here, Mr. Sanders failed to appeal the
Board’s decision finding no CUE in the November 1986
Ratings Decision. Accordingly, we affirm the Veterans
Court’s determination that it lacks jurisdiction over the
CUE claims.
Mr. Sanders also argues that he was denied due pro-
cess when he was not provided a physical or mental exam-
ination before the November 1986 ratings decision. Mr.
Sanders did not allege that his due process rights had been
violated in the Veterans Court. We, therefore, do not have
jurisdiction to review factual questions of whether Mr.
Sanders received a physical or mental evaluation before
November 1986. Johnson v. Derwinski, 949 F.2d 394, 395
3 We note, as did the Veterans Court, that Mr. Sand-
ers has filed other notices of disagreement raising CUE
with respect to some of his other RO rating decisions. De-
cision at *4. However, as the Veterans Court explained,
these previous notices of disagreement did not consider
whether there was CUE in the November 1986 rating deci-
sion, and therefore did not properly begin the appeal pro-
cess with respect to this issue.
Case: 22-1252 Document: 35 Page: 6 Filed: 11/09/2022
6 SANDERS v. MCDONOUGH
(Fed. Cir. 1992) (“[T]his court may not generally review
challenges to factual determinations.”). In addition, as a
general rule, this court may not consider an argument
raised for the first time on appeal. See Boggs v. West, 188
F.3d 1335, 1337–38 (Fed. Cir. 1999). With respect to due
process claims that were not presented below, we exercise
discretion whether to hear a due process argument on ap-
peal. In this case, we decline to exercise such discretion.
We note that Mr. Sanders is not prohibited from seek-
ing a CUE claim in the November 1986 ratings decision. A
“request for revision of a decision of the Secretary based on
clear and unmistakable error may be made at any time af-
ter that decision is made.” Andre, 301 F.3d at 1362 (quot-
ing 38 U.S.C. § 5109A(d)).
CONCLUSION
We affirm the Veterans Court’s affirmance of the
Board’s decision denying Mr. Sanders an earlier effective
date than March 31, 2006, for service-connected headaches
and head injury; September 19, 2005, for service-connected
DDD of the cervical spine; and February 17, 2009, for ser-
vice-connected DDD of the lumbar spine. We also affirm
the Veterans Court’s finding that it lacks jurisdiction over
Mr. Sanders’ CUE claims.
AFFIRMED
COSTS
No costs.