Milburn v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TITUS D. MILBURN, SR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7043
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 09-2608, Chief Judge Bruce
E. Kasold.
__________________________
Decided: March 13, 2012
__________________________
EVA I. GUERRA, Law Offices of Eva I. Guerra, of White
Lake, Michigan, for claimant-appellant.
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,
MILBURN v. DVA 2
and STEVEN J. GILLINGHAM, Assistant Director. Of coun-
sel on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and LARA K. EILHARDT, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before LINN, PROST, and WALLACH, Circuit Judges.
PER CURIAM.
Titus D. Milburn, Sr. appeals the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the Board of Veterans’
Appeals (“Board”) denying his earlier effective date
(“EED”) claim for service-connected paranoid schizophre-
nia. Because we cannot review the Veterans Court’s
findings of fact and application of law to fact, we dismiss
Mr. Milburn’s claim for lack of jurisdiction.
I.
Mr. Milburn served on active duty from November
1973 to April 1974, from August 1975 to January 1976,
and from January 1979 to March 1979. Believing he had
a nervous condition, Mr. Milburn applied on July 7, 1977
for service-connected benefits to a Veterans Affairs (“VA”)
Regional Office (“RO”). The RO denied Mr. Milburn’s
claim in November 1977. On August 6, 1996, Mr. Milburn
successfully applied to re-open his claim for benefits. In
January 2005, the RO granted Mr. Milburn a 100-percent
service-connected benefit rating for paranoid schizophre-
nia. In May 2005, the RO adjusted the effective date of
that award to August 6, 1996. Mr. Milburn subsequently
filed a Notice of Disagreement claiming that he was
entitled to an EED of his benefit. The Board denied Mr.
Milburn’s EED claim, and he appealed the Board’s deci-
sion to the Veterans Court where the parties filed a joint
3 MILBURN v. DVA
motion to remand the case back to the Board. In that
motion, the parties asked the Board “to consider whether
an EED was available pursuant to 38 C.F.R. §§ 3.156(c)
(2005) and 3.400(q)(2) (2005)” and stated that “the Board
should also consider whether an EED is available under
section 3.156(c) in light of any service medical records
that may have been received after the original November
1977 denial of service connection.” 1 The Veterans Court
granted the joint motion. On remand, in a decision dated
June 9, 2009, the Board again denied Mr. Milburn’s EED
claim. Mr. Milburn appealed the Board’s decision and the
Veterans Court affirmed. Milburn v. Shinseki, Case No.
09-2608, 2010 WL 3839456, at *2 (Vet. App. Oct. 4, 2010).
Mr. Milburn filed a timely notice of appeal with this court.
II.
We have limited jurisdiction to review rulings of the
Veterans Court. The jurisdictional statute, 38 U.S.C. §
7292, authorizes review of “all relevant questions of law,”
id. at 7292(d)(1), but provides that except to the extent
1 Section 3.156(c) (2005) states:
Where the new and material evidence consists of
a supplemental report from the service depart-
ment, received before or after the decision has be-
come final, the former decision will be
reconsidered by the adjudicating agency of origi-
nal jurisdiction . . . . The retroactive evaluation of
disability resulting from disease or injury subse-
quently service connected on the basis of the new
evidence from the service department must be
supported adequately by medical evidence.
Where such records clearly support the assign-
ment of a specific rating over a part or the entire
period of time involved, a retroactive evaluation
will be assigned accordingly except as it may be
affected by the filing date of the original claim.
38 C.F.R. § 3.156(c) (2005).
MILBURN v. DVA 4
that an appeal presents a constitutional issue, we may not
review “(A) a challenge to a factual determination, or (B) a
challenge to a law or regulation as applied to the facts of a
particular case,” id. at 7292(d)(2).
On appeal, Mr. Milburn argues that the Veterans
Court erred in affirming the Board’s decision for three
reasons. First, Mr. Milburn contends that the Board
erred when it ruled that a report from non-judicial pun-
ishment he received in 1975 under Article 15 of the Uni-
form Code of Military Justice, 10 U.S.C. § 815 (the
“Article 15 report”), was not a relevant official service
department record to warrant an EED. Second, Mr.
Milburn avers that the Board failed to properly apply
Sections 3.156(c) and 3.400(q)(2) when it did not find the
Article 15 report and five Reports of Medical History he
completed in 1975 to be “new and material” documents
warranting an EED. Third, Mr. Milburn argues that the
Veterans Court’s decision should be reversed because the
Board failed to comply with the remand order when it did
not address the Reports of Medical History in its June
2009 decision.
To begin, we do not have jurisdiction to review
whether the Article 15 report was relevant to Mr. Mil-
burn’s benefit or EED claim. This court does not have
jurisdiction to review the Veterans Court’s factual deter-
minations or the application of facts to the law. 38 U.S.C.
§ 7292(d)(2). Mr. Milburn claims that the Article 15
report shows that he was struck in the head by a fellow
soldier, a service-connected injury that led in part to his
disability. The Board, however, looked to the Article 15
report and found that “the four corners of the report does
not reveal any reference whatsoever to a beating.” The
Board’s determination, which was upheld by the Veterans
Court, is a fact-based evidentiary determination beyond
5 MILBURN v. DVA
the scope of our review. 2 Similarly, we do not have juris-
diction to review the Veterans Court’s determination that
the Board did not err in ruling that the Article 15 report
and Reports of Medical History are not “new and mate-
rial.” Whether the documents constituted “new and
material” evidence is a question of fact or a question of
fact applied to law. See Barnett v. Brown, 83 F.3d 1380,
1383-84 (Fed. Cir. 1996). Thus, we do not have jurisdic-
tion to review these determinations.
Lastly, this court does not have jurisdiction to review
the Veterans Court’s decision that the Board complied
with its remand order. To determine whether the Board
complied with the remand would require us to look to a
factual determination. See Dyment v. Principi, 287 F.3d
1377, 1381 (Fed. Cir. 2002) (holding that whether there
was compliance with a remand order “challenges the
decision of the Veterans Court on a factual matter, as to
which this court does not have jurisdiction”). Thus, we
may not entertain Mr. Milburn’s third argument.
2 There is no constitutional issue in this case that
would allow us to review the Board’s factual findings. See
38 U.S.C. § 7292(d)(2). Mr. Milburn contends the Board’s
failure to grant him an EED based on the Article 15
report and Reports of Medical History amounts to a
violation of his due process rights. The Board has consid-
ered Mr. Milburn’s EED claim based on all evidence
deemed relevant, new, and material. The fact that the
Board found adverse to Mr. Milburn is not a constitu-
tional deficiency. See Helfer v. West, 174 F.3d 1332, 1335
(Fed. Cir. 1999) (holding that a “due process” label on a
contention that the veteran should have prevailed in a
claim is not a valid constitutional issue).
MILBURN v. DVA 6
III.
Because Mr. Milburn’s appeal asks this court to review
factual determinations, we dismiss for lack of jurisdiction.
DISMISSED.
No costs.