Bennett v. McDonough

Case: 22-2142 Document: 30 Page: 1 Filed: 03/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RONNIE L. BENNETT,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-2142
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-5643, Chief Judge Margaret C.
Bartley, Judge Amanda L. Meredith, Judge William S.
Greenberg.
______________________
Decided: March 7, 2023
______________________
RONNIE LEE BENNETT, Memphis, TN, pro se.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY,
LOREN MISHA PREHEIM; TYRONE COLLIER, Y. KEN LEE,
Case: 22-2142 Document: 30 Page: 2 Filed: 03/07/2023
2 BENNETT v. MCDONOUGH
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before DYK, REYNA, and STARK, Circuit Judges.
PER CURIAM.
Ronnie L. Bennett, a veteran of the U.S. Air Force, ap-
peals a decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) affirming the effective
date of his disability rating for pseudofolliculitis barbae
(“PFB”) with disfigurement (a skin condition typically
caused by shaving) that began during his period of active
service. We lack jurisdiction over some of Mr. Bennett’s
claims, and affirm the Veterans Court’s ruling to the extent
that we do have jurisdiction. We therefore affirm in part
and dismiss in part.
BACKGROUND
Mr. Bennett served on active duty from January 1976
until November 1977. He first sought compensation for
PFB in 2000, and was granted service connection for the
condition in 2001 with a 10% disability rating. In 2011,
after further proceedings, Mr. Bennett filed a claim to in-
crease his PFB rating and change the effective date of that
rating. A month later, he asserted that the Department of
Veterans Affairs (“VA”) had made clear and unmistakable
errors (“CUE”) in its PFB-related decisions. The Regional
Office largely denied Mr. Bennett’s claims, but concluded
that his disability should be deemed PFB with disfigure-
ment, with an unchanged disability rating. Mr. Bennett
appealed, and in 2017 the Board of Veterans’ Appeals
(“Board”) affirmed in relevant part.
After Mr. Bennett appealed the Board’s decision to the
Veterans Court, in 2018 he and the VA settled and agreed
to terminate the appeal. Under that stipulation, the VA
agreed to “award a 30% disability rating under the
Case: 22-2142 Document: 30 Page: 3 Filed: 03/07/2023
BENNETT v. MCDONOUGH 3
provisions of 38 C.F.R. § 4.118, Diagnostic Code (DC) 7800”
for Mr. Bennett’s “pseudofolliculitis barbae with disfigure-
ment.” S.A. 174. 1 The parties did not agree on an effective
date for the new rating, and Mr. Bennett preserved his
right to appeal any determination of an effective date by
the Regional Office.
In 2018, Mr. Bennett’s Regional Office updated his dis-
ability rating to 30% with an effective date of April 26,
2011, the date the VA received the claim that ultimately
led to the 2018 settlement between Mr. Bennett and the
agency. See 38 U.S.C. § 5110(a)(1) (“Unless specifically
provided otherwise . . . the effective date of an award based
on an initial claim, or a supplemental claim, of compensa-
tion . . . shall not be earlier than the date of receipt of ap-
plication therefor.”); Arellano v. McDonough, 143 S. Ct.
543, 546–47 (2023). Mr. Bennett appealed the Regional Of-
fice’s decision to the Board, which affirmed. The Board
found that there was no evidence of “an earlier, unadjudi-
cated claim for an increased rating for [Mr. Bennett’s] skin
condition” and that Mr. Bennett had, in his settlement,
waived his CUE claim as to the agency’s 2001 decision.
S.A. 210–11. It also concluded that there was no evidence
Mr. Bennett’s condition had worsened in the year prior to
receipt of the April 2011 claim. Mr. Bennett appealed to
the Veterans Court. The Veterans Court affirmed the
Board in relevant part, finding no error in its fact finding
or interpretation of Mr. Bennett’s settlement. This appeal
followed.
DISCUSSION
“Our jurisdiction to review decisions of the Veterans
Court is limited by statute.” Flores-Vazquez v.
McDonough, 996 F.3d 1321, 1325 (Fed. Cir. 2021). Under
1 “S.A.” refers to the Supplemental Appendix filed
with the government’s brief.
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4 BENNETT v. MCDONOUGH
38 U.S.C. § 7292(c), we may “review and decide any chal-
lenge to the validity of any statute or regulation or any in-
terpretation thereof” by the Veterans Court, and “interpret
constitutional and statutory provisions, to the extent pre-
sented and necessary to a decision.” However, 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. § 7292(d)(2).
Mr. Bennett first argues that the Board erred by clas-
sifying his disability solely under diagnostic code 7800, ra-
ther than under an additional diagnostic code. That
argument is legally precluded by Mr. Bennett’s settlement
with the government, which provided that the VA would
classify his “pseudofolliculitis barbae with disfigure-
ment”—i.e., the entirety of the disability at issue here—un-
der “Diagnostic Code (DC) 7800.” S.A. 174.
Second, Mr. Bennett contends that the Veterans Court
erred by affirming the Board’s conclusion that April 26,
2011, is the effective date for his increased disability rat-
ing. He argues that his effective date should either be Au-
gust 2000, when the VA allegedly first observed his facial
scars, or, because of equitable tolling, March 1976, during
his period of active service, when Mr. Bennett says he was
first diagnosed with PFB. As to the August 2000 date, our
cases establish that a medical record of a disability is not
equivalent to a formal or informal claim to the VA entitling
a veteran to an earlier effective date. See Akers v. Shinseki,
673 F.3d 1352, 1357 (Fed. Cir. 2012) (“[T]to qualify as an
informal claim, a communication must: (1) be in writing;
(2) indicate an intent to apply for benefits; and (3) identify
the benefits sought.”); Sellers v. Wilkie, 965 F.3d 1328,
1338 (Fed. Cir. 2020).
Mr. Bennett’s assertion that his eligibility date should
have been equitably tolled—because his disability is alleg-
edly the result of experiments conducted on him by the Air
Force when he was on active duty—is foreclosed by the
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BENNETT v. MCDONOUGH 5
Supreme Court’s recent decision in Arellano. The Court
held that eligibility date determinations under 38 U.S.C.
§ 5110 are not subject to equitable tolling. See Arellano,
143 S. Ct. at 546.
Finally, Mr. Bennett argues that his treatment during
military service violated a host of constitutional and statu-
tory provisions. But he has not shown that the Veterans
Court had jurisdiction to consider these claims. They are
thus beyond our jurisdiction. See 38 U.S.C. § 7292(a).
AFFIRMED IN PART, DISMISSSED IN PART
COSTS
No costs.