Smith v. McDonough

Case: 20-2063 Document: 31 Page: 1 Filed: 04/12/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CARY E. SMITH,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-2063
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4777, Senior Judge Robert N.
Davis.
______________________
Decided: April 12, 2021
______________________
CARY E. SMITH, Grand Prairie, TX, pro se.
KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ROBERT EDWARD KIRSCHMAN, JR.,
LOREN MISHA PREHEIM.
______________________
Case: 20-2063 Document: 31 Page: 2 Filed: 04/12/2021
2 SMITH v. MCDONOUGH
Before LOURIE, O’MALLEY, and STOLL, Circuit Judges.
PER CURIAM.
Cary Smith appeals from the decision of the Court of
Appeals for Veterans Claims (“the Veterans Court”) affirm-
ing the decision of the Board of Veterans’ Appeals (“the
Board”) denying an effective date earlier than September
8, 2015, for right and left knee patellofemoral syndrome.
See Smith v. McDonough, No. 19-4777 (Vet. App. Apr. 29,
2020) (“Decision”). Because Smith’s arguments challenge
only the application of law to fact, which we lack jurisdic-
tion to review, we dismiss the appeal.
BACKGROUND
Smith served on active duty in the United States Army
from 1989 until 1993, with service during the Persian Gulf
War. In January 1998, Smith filed for service connection
for bilateral patellofemoral syndrome. In a July 1998 rat-
ing decision, the regional office (“RO”) awarded a noncom-
pensable rating for bilateral patellofemoral syndrome with
an effective date of January 23, 1998. Following the July
1998 rating decision, Smith was notified of his appellate
rights but did not appeal the decision or submit new and
material evidence within one year. Accordingly, the July
1998 rating decision became final.
In September 2015, Smith filed for an increased rating
for his bilateral knee patellofemoral syndrome and also
moved to revise the July 1998 RO decision on the basis of
clear and unmistakable error (“CUE”). In April 2016, the
RO awarded 10 percent ratings for Smith’s right and left
knee patellofemoral syndrome, with an effective date of
September 8, 2015.
Smith appealed the effective date determination to the
Board, contending that it should be the date when he first
sought treatment in 1992. The Board found that the July
1998 RO decision became final when Smith was notified of
his appeal rights and failed to appeal the decision or submit
Case: 20-2063 Document: 31 Page: 3 Filed: 04/12/2021
SMITH v. MCDONOUGH 3
new and material evidence within one year of that decision.
The Board also found that Smith did not submit evidence
indicating an intent to seek an increased rating between
July 1998 and September 2015, observing that there were
no medical records dated during this period. Finally, the
Board found that there was no evidence that Smith experi-
enced an increase in his disabilities within one year prior
to September 2015, such that the provisions of 38 U.S.C.
§ 5110(b)(3) would provide an earlier effective date. Ac-
cordingly, the Board affirmed the effective date of Septem-
ber 8, 2015. With respect to Smith’s CUE claim, the Board
observed that the RO had yet to adjudicate the claims and
therefore the Board lacked jurisdiction to render a decision
on that basis.
Smith appealed to the Veterans Court, arguing that
the Board provided an inadequate statement of reasons for
its determinations because it failed to address whether he
was entitled to compensation for other conditions related
to his diagnosed patellofemoral syndrome. The court found
that the Board did not err because Smith failed to provide
any evidence showing that he either appealed his July 1998
noncompensable award or submitted an increased-rating
claim before September 2015. Decision, slip op. at *4. The
court also found that the Board did not err by failing to
consider whether Smith was entitled to compensation for
other conditions related to his disability because Smith did
not provide any evidence showing that his patellofemoral
syndrome affects other areas of the body. Id. Because of
the lack of evidence, the court determined that any alleged
failure by the Board was harmless. Id. The court declined
to address the Board’s determination that it lacked juris-
diction to consider Smith’s CUE because Smith brought no
argument relating to that determination. Id. slip op. at *1
n.2.
Smith then timely appealed to this court.
Case: 20-2063 Document: 31 Page: 4 Filed: 04/12/2021
4 SMITH v. MCDONOUGH
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review a decision of the Veterans
Court with respect to a rule of law or interpretation of a
statute or regulation relied on by the Veterans Court in its
decision. 38 U.S.C. § 7292(a). However, except with re-
spect to constitutional issues, we may not review chal-
lenges to factual determinations or challenges to the
application of a law or regulation to the facts of a case.
§ 7292(d)(2). In considering whether an appeal falls within
our jurisdiction, we look to the substance of the issues pre-
sented rather than a party’s characterization of the ques-
tion. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir.
1999).
On appeal, Smith principally argues that the Veterans
Court failed to liberally construe his claim to include all
disorders that it might reasonably encompass. Specifically,
he contends that the Board failed to provide an adequate
statement of reasons for its determination that Smith was
not entitled to an earlier effective date because it failed to
address whether he was entitled to compensation for other
conditions related to his diagnosed patellofemoral syn-
drome. Smith also appears to challenge the determina-
tions by the Board and Veterans Court not to address his
CUE claim as to the 1998 RO decision.
The government responds that whether the Board sat-
isfied its duty to sympathetically construe Smith’s filings
involves the application of law to fact and is therefore out-
side our jurisdiction. Likewise, with respect to Smith’s
CUE claim, the government argues that we lack jurisdic-
tion because the issue was not raised before or addressed
by the Veterans Court.
We agree with the government that we lack jurisdic-
tion to review the denial of an earlier effective date. The
effective date for an increase in disability compensation
rating generally cannot precede the date on which the
Case: 20-2063 Document: 31 Page: 5 Filed: 04/12/2021
SMITH v. MCDONOUGH 5
veteran applies for the increase. 38 U.S.C. § 5110(a). The
effective date can predate the filing of the claim if the ap-
plication is received within one year of the increase in dis-
ability. Id. § 5110(b)(3). The 2016 rating decision
increased Smith’s compensation to 10 percent and assigned
an effective date of September 8, 2015, the date of Smith’s
claim. The Board affirmed the effective date determination
because it found that there was no evidence that the in-
crease in Smith’s disability occurred within one year prior
to the filing of his claim or that Smith intended to seek an
increased rating between 1998 and 2015.
The assessment of this evidence, or lack thereof, by the
Board and Veterans Court is a factual issue that we lack
jurisdiction to review. See Butler v. Shinseki, 603 F.3d 922,
926 (Fed. Cir. 2010). Even on appeal, although Smith re-
fers to treatment of his knee condition between the end of
his service and his 1998 application for benefits, he does
not direct us to any evidence between the 1998 rating deci-
sion and 2015 that contradicts the Board’s determination
of the finality of that decision or an increase in his disabil-
ity within one year prior to the filing of his 2015 claim for
an increased rating.
We also agree with the government that we lack juris-
diction to consider Smith’s argument that the Board failed
in its duty to liberally construe his claim as encompassing
disorders beyond his knee condition. “[T]he interpretation
of the contents of a claim for benefits [is] a factual issue
over which we [do] not have jurisdiction.” Ellington v.
Peake, 541 F.3d 1364, 1371 (Fed. Cir. 2008) (citing Bonner
v. Nicholson, 497 F.3d 1323, 1328 (Fed. Cir. 2007)). In any
event, as the Veterans Court found, Smith did not present
any medical evidence suggesting that his patellofemoral
syndrome affected any body part other than his knees.
With respect to Smith’s CUE claim, the Veterans Court
did not address his CUE claim because he did not raise any
argument relating to the Board’s determination to refer it
Case: 20-2063 Document: 31 Page: 6 Filed: 04/12/2021
6 SMITH v. MCDONOUGH
to the RO. Because Smith does not challenge the Board’s
ruling that it does not have jurisdiction to consider CUE
arguments in the first instance and the issue was not
raised or addressed by the Veterans Court, we agree with
the government that we lack jurisdiction to consider the is-
sue on appeal. See Forshey v. Principi, 284 F.3d 1335, 1358
(Fed. Cir. 2002) (en banc).
CONCLUSION
We have considered Smith’s remaining arguments but
find them unpersuasive. For the foregoing reasons, we dis-
miss the appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.