Panton v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GARY PANTON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS
Respondent-Appellee.
__________________________
2010-7056
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 07-2296, Judge Alan G.
Lance, Sr.
______________________
Decided: June 11, 2010
______________________
GARY PANTON, of South Dakota, pro se.
CORINNE A. NIOSI, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director. Of counsel on the
PANTON v. DVA 2
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, and KRISTIANA M. BRUGGER, Attorney,
Office of the General Counsel, United States Department
of Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.
Gary Panton appeals from a final judgment of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) denying his claim to an earlier effec-
tive date for his service-connected tinnitus. See Panton v.
Shinseki, No. 07-2296, 2009 WL 5125124 (Vet. App. Dec.
29, 2009). Because Mr. Panton appeals factual determi-
nations not within our jurisdiction, we dismiss.
BACKGROUND
Mr. Panton served in the military from July 7, 1982 to
June 28, 1983. In November 1998, he filed a compensa-
tion claim with the Department of Veterans Affairs (“VA”)
for “hearing damage due to heavy equipment operation”
during his military service. During an audiology exami-
nation in January 1999, Mr. Panton complained of “occa-
sional buzzing since his military days in the 1980’s [in]
both ears.” He also reported that “tinnitus is not a prob-
lem area for him” and that “his occasional short term
tinnitus” is “not out of the ordinary.” The examiner
diagnosed Mr. Panton as having “left-sided moderately
severe hearing loss of the sensorineural type, probably
related to his noise exposure from military [service] and
afterwards.”
In February 1999, the Regional Office (“RO”) granted
service connection for left ear hearing loss, but rated it as
non-compensable, and denied service connection for right
3 PANTON v. DVA
ear hearing loss. The RO noted that Mr. Panton had
reported buzzing in both ears since his military days, but
reported during his audiology examination that tinnitus
was not a problem area for him. In May 1999, the RO
considered a letter from Mr. Panton’s doctor who opined
that Mr. Panton suffered from substantial left ear hearing
loss that was not compensated by normal right ear hear-
ing. However, the RO continued denial of his claim.
In November 1999, Mr. Panton filed a Notice of Dis-
agreement (“NOD”) with regard to the RO’s denial of
service connection for right ear hearing loss, but he did
not file a timely Substantive Appeal in response to the
Statement of the Case. Mr. Panton then sought to reopen
his claim in December 2003 to seek an increased evalua-
tion for his service-connected left ear hearing loss and
service connection for right ear hearing loss. In February
2004, Mr. Panton added a claim for service connection for
tinnitus. In August 2004, the RO granted service connec-
tion for tinnitus, rated as 10% disabling, effective March
1, 2004, but continued denial of the other claims.
In January 2005, Mr. Panton requested reconsidera-
tion of the effective date for his service-connected tinnitus,
alleging that the failure to grant service connection for
tinnitus in the February 1999 decision constituted clear
and unmistakable error (“CUE”). In January 2005, the
RO found that the denial of service connection for right
ear hearing loss in the February 1999 rating decision was
not CUE. The January 2005 decision did not discuss the
tinnitus issue. In October 2005, Mr. Panton filed a NOD
clarifying that he was seeking an earlier effective date for
service-connected tinnitus. The Board determined that
the February 1999 decision implicitly denied Mr. Panton’s
claim for service connection for tinnitus and that denial of
that claim was not CUE.
PANTON v. DVA 4
Mr. Panton appealed the Board’s decision to the Vet-
erans Court. See Panton v. Shinseki, No. 07-2296, 2009
WL 5125124 (Vet. App. Dec. 29, 2009). First, the Veter-
ans Court held that the Board should not have treated
Mr. Panton’s appeal as an allegation of CUE, but rather
as a “direct appeal from the assigned effective date for the
appellant’s service-connected tinnitus.” Id. at *2. Next,
the Veterans Court considered whether Mr. Panton’s
November 1998 claim reasonably raised the tinnitus
claim, and if so, whether the February 1999 RO decision
adjudicated the claim. Id. at *2-3. The Veterans Court
found that Mr. Panton reasonably raised a tinnitus claim
in his November 1998 application and therefore inquired
into whether the February 1999 RO decision resolved that
claim. Id. at *3.
Ultimately, the Veterans Court determined that Mr.
Panton had submitted both a tinnitus and hearing loss
claim in 1998, but that the RO formally ruled upon only
the hearing loss claim in 1999. Id. at *3. Applying the
implicit denial rule enumerated in Deshotel v. Nicholson,
457 F.3d 1258, 1261 (2006) and applied in Ingram v.
Nicholson, 21 Vet. App. 232, 243 (2007), the Veterans
Court concluded that the RO’s discussion of the tinnitus
symptoms in the February 1999 decision “provided ade-
quate recognition so that the appellant should have
understood that his tinnitus claim had been adjudicated.”
Id. Accordingly, the Veterans Court affirmed the Board’s
decision, holding that the RO had implicitly denied Mr.
Panton’s claim for tinnitus in the February 1999 decision.
Id. This appeal followed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Forshey v. Principi, 284 F.3d
1335, 1338 (Fed. Cir. 2002). We have jurisdiction to
5 PANTON v. DVA
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). We must
decide “all relevant questions of law” and must set aside
any regulation or interpretation thereof “other than a
determination as to a factual matter” that we find “(a)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (b) contrary to constitutional
right, power, privilege, or immunity; (c) in excess of
statutory jurisdiction, authority, or limitations, or in
violation of a statutory right; or (d) without observance of
procedure required by law.” 38 U.S.C. § 7292(d)(1).
Except for an appeal that presents a constitutional issue,
we may not review “(a) a challenge to a factual determina-
tion, or (b) a challenge to a law or regulation as applied to
the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
On appeal, Mr. Panton raises only factual issues re-
garding his hearing loss. Although Mr. Panton alleges
that the Veterans Court’s decision involves the validity or
interpretation of a statute or regulation, Mr. Panton’s
allegations of error are limited solely to factual issues.
For example, Mr. Panton argues that he has service-
connected “hearing loss . . . in both ears,” that his hearing
loss was “evident the day [he] was discharged” from
service, and that his hearing loss has worsened over time.
Mr. Panton alleges that the VA committed error because
they “ignored the facts” regarding his hearing loss.
Mr. Panton requests that we “throw out the decision” of
the Veterans Court and instead “base [our] findings on
medical-general accepted evidence only.”
Questions regarding the time when a disease or condi-
tion became evident, and whether it has worsened over
time, are questions of fact. Conley v. Peake, 543 F.3d
PANTON v. DVA 6
1301, 1305 (Fed. Cir. 2008). Factual questions such as
these are excluded from the scope of this court’s review.
See 38 U.S.C. § 7292(d)(2). We have jurisdiction over only
those questions involving the validity of a rule of law,
statute, or regulation upon which the Veterans Court
relied in making its decision. See id. Because Mr. Panton
challenges only factual determinations and we lack juris-
diction to review them, his appeal is
DISMISSED
No costs.