Lynch v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ISAAC J. LYNCH, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7175
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-2981, Judge William A.
Moorman
__________________________
Decided: March 15, 2012
__________________________
ISAAC J. LYNCH, JR., of Petersburg, Virginia, pro se.
SARAH A. MURRAY, 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 BRIAN
LYNCH v. DVA 2
M. SIMKIN, Assistant Director. Of counsel on the brief
was DAVID J. BARRANS, Deputy Assistant General Coun-
sel, United States Department of Veterans Affairs, of
Washington, DC.
__________________________
Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
PER CURIAM.
Isaac J. Lynch, Jr. served on active duty in the U.S.
Army from September 1970 to December 1970. He also
participated in the Reserve Officer Training Corps Pro-
gram in the summer of 1969. Mr. Lynch appeals the
decision of the Court of Appeals for Veterans Claims
(“Veterans Court”) that affirmed the denial of his entitle-
ment to service-connected disability benefits for (a) re-
siduals of a back injury; (b) residuals of a left knee injury;
(c) rhinitis; (d) pharyngitis; (e) residuals of a neck injury;
and (f) an ear disorder. Mr. Lynch also raises on appeal
several other substantive and procedural issues. Lynch v.
Shinseki, No. 08-2981 (Vet. App. June 6, 2011) (“Vet. Ct.
Op.”). We affirm-in-part and dismiss-in-part the decision
of the Veterans Court.
I
On April 9, 1976, the Regional Office (“RO”) denied
Mr. Lynch’s claims for service-connected disability bene-
fits. In December 2002, Mr. Lynch requested that the
Board of Veterans’ Appeals (“Board”) reopen his claims for
(a) residuals of a back injury; (b) residuals of a left knee
injury; (c) rhinitis; (d) pharyngitis; (e) residuals of a neck
injury; and (f) an ear disorder (“various physical disabili-
ties”). The Board issued a decision on July 13, 2004,
denying Mr. Lynch’s request on grounds that he had not
3 LYNCH v. DVA
submitted new and material evidence following the 1976
decision of the RO.
Mr. Lynch appealed to the Veterans Court. During
the appeal, the government and Mr. Lynch agreed that
Mr. Lynch had submitted additional medical evidence to
the RO after the April 9, 1976 rating decision and prior to
the expiration of the appeal period. The government
stipulated that Mr. Lynch’s previous claim remained
pending under 38 C.F.R. § 3.156(b), which provides that
new and material evidence received prior to the expira-
tion of the appeal period, or prior to the appellate decision
will be considered as having been filed in connection with
the claim which was pending at the beginning of the
appeal period. As a result, in September 2005, the Veter-
ans Court vacated the Board’s July 2004 decision and
remanded Mr. Lynch’s claims to the Board, and the Board
remanded the claims to the RO.
The Department of Veterans Affairs (“VA”) provided a
medical examination for Mr. Lynch in January 2006. He
was diagnosed with lumbar degenerative disc disease and
degenerative joint disease; rhinitis with no pathology to
render a diagnosis; pharyngitis with no pathology to
render a diagnosis, cervical degenerative disc disease and
degenerative joint disease; and an ear disorder with no
pathology to render a diagnosis. Based on a review of Mr.
Lynch’s file and the examination, the examining physi-
cian stated that “it is this examiner’s opinion that it is
less likely than not that any back, left knee, rhinitis,
pharyngitis, neck and ear disability, were incurred in or
aggravated by his military service.” Joint Appendix at 38.
In February 2007, the Board reviewed the examining
physician’s report and remanded Mr. Lynch’s claim to the
RO for further development. In a March 2007 letter, the
LYNCH v. DVA 4
Appeals Management Center requested information from
Mr. Lynch, including medical records, authorization and
consent to release forms, and names of health care pro-
viders who might have information. Mr. Lynch responded
to the request and, among other things, identified over
400 sources of information. The VA obtained information
from a portion of the sources that Mr. Lynch identified.
In a September 12, 2008 decision, the Board found
that there was no evidence of a service connection to Mr.
Lynch’s various physical disabilities. The Board also
addressed Mr. Lynch’s assertion that the VA had not
complied with the requirements of the Veterans Claims
Assistance Act of 2000 (“VCAA”), which in general pro-
vides that the VA has a duty to notify and assist claim-
ants in substantiating claims for VA benefits. See, e.g., 38
U.S.C. § 5103A. The Board reviewed the claims file and
determined that the VA had complied with the VCAA
mandate. The Board determined that if there was any
failure to meet the requirements of the VCAA, any poten-
tial harm had been mitigated because Mr. Lynch was
represented by a highly qualified service organization,
and because Mr. Lynch had years to submit evidence
regarding his claims. Mr. Lynch appealed the Board’s
decision to the Veterans Court.
On June 6, 2011, the Veterans Court found that it had
jurisdiction over Mr. Lynch’s claims for entitlement to
service-connected disability benefits for his various physi-
cal disabilities, and upheld the Board’s decision denying
Mr. Lynch’s entitlement to benefits. The Veterans Court
also addressed procedural issues, including that the
record before the agency was incomplete (two volumes
missing out of 28 volumes) and Mr. Lynch’s request to
exceed the page limits for informal briefs. The Veterans
Court allowed Mr. Lynch to submit five additional pages
5 LYNCH v. DVA
in his informal brief, but denied his request for additional
pages in his reply brief. The Veterans Court also ordered
the VA to serve Mr. Lynch with a complete copy of the
record that was before the agency.
The Veterans Court also reviewed Mr. Lynch’s claim
related to Severe Obstruction Sleep Apnea (“Sleep Ap-
nea”) and held that it lacked jurisdiction to address the
merits of the claim because the issues had not been raised
before the Board and were not part of the Board’s Sep-
tember 12, 2008 decision. The Veterans Court remanded
this claim and directed the Board to issue a decision
concerning the Sleep Apnea claim. The Veterans Court
also held that it lacked jurisdiction to review issues
related to 33 ailments that Mr. Lynch had listed in a
December 21, 2000 statement to the RO, because this
claim had also not been raised before the Board.
Discussing the remainder of Mr. Lynch’s arguments
on appeal, the Veterans Court stated that it could not
review the claims because Mr. Lynch had not presented
allegations of error with necessary particularity.
Mr. Lynch timely appealed the judgment of the Vet-
erans Court to this court.
II
Mr. Lynch presents the following issues to this court:
(1) the Veterans Court erred when it determined it did
not have jurisdiction over Mr. Lynch’s Sleep Apnea claim
and his claims involving the 33 other ailments; (2) the
Veterans Court erred when it affirmed the Board’s deter-
mination denying Mr. Lynch’s claims for various physical
disabilities; (3) the Veterans Court erred when it found
that the VA did not violate the VCAA and fourteen other
LYNCH v. DVA 6
statutes; (4) the Veterans Court erred in its determina-
tion concerning various procedural issues. In addition,
Mr. Lynch requests that this court appoint legal represen-
tation.
A
This court may not review a Veterans Court’s decision
involving a challenge to a factual determination, or a
challenge to a law or regulation as applied to the facts of a
particular case, except to the extent that an appeal from
the Veterans Court’s decision presents a constitutional
issue. 38 U.S.C. § 7292(e)(1). In other words, we gener-
ally lack jurisdiction to review factual determinations
made by the Board. See, e.g., Johnson v. Derwinski, 949
F.2d 394, 395 (Fed. Cir. 1991).
This court reviews de novo whether the Veterans
Court has jurisdiction to entertain an appeal. Ledford v.
West, 136 F.3d 776, 778 (Fed. Cir. 1998); In re Wick, 40
F.3d 367, 370 (Fed. Cir. 1994). We lack jurisdiction to
review factual findings of the Veterans Court relating to
jurisdictional issues or to review the Veterans Court’s
application of its jurisdictional statutes to the facts of a
particular case. Albun v. Brown, 9 F.3d 1528, 1530 (Fed.
Cir. 1993). Whether claims for specific disabilities were
raised to and decided by the VA is a factual matter out-
side this court’s jurisdiction. See Ellington v. Peake, 541
F.3d 1364, 1371-1372 (Fed. Cir. 2008).
B
Mr. Lynch argues that the Veterans Court erred when
it found that it did not have jurisdiction over his Sleep
Apnea claim and his claim for his 33 other ailments. As
to both of these claims, the Veterans Court stated that
7 LYNCH v. DVA
“[t]here is no evidence that the appellant’s additional
claims were subject to a[n] RO decision that was timely
appealed to the Board.” Vet. Ct. Op. at 1, n.1.
The Board must first review RO decisions before the
Veterans Court may render a determination on an issue,
and the Veterans Court may only exercise jurisdiction
over an issue if a party files a timely notice of appeal from
the Board’s decision. 38 U.S.C. §§ 7252(a) and 7266(a).
Whether these claims were properly presented to the RO
and the Board is a factual determination that falls outside
this court’s jurisdiction. As such, we dismiss the appeal
as to these claims.
Mr. Lynch appeals the decision of the Veterans Court
to deny service-connected disability benefits on Mr.
Lynch’s claims for various physical disabilities. The
Veterans Court found that “the Board did not clearly err
in regard to its implicit determination that the 2006 VA
examination was adequate and in denying the appellant
entitlement to service connection for rhinitis, pharyngitis,
a chronic ear condition, and residuals of a back injury, left
knee injury, and neck injury.” Vet. Ct. Op. at 3. In order
to receive compensation for disabilities, a veteran must
establish that an injury is service-connected. See 38
U.S.C. § 1110. Establishing that an injury is ser-
vice-connected is a factual determination, which this
court cannot review. 38 U.S.C. § 7292(e)(1). As a result,
we dismiss the appeal as to the service-connected claim
for various disabilities.
Mr. Lynch argues that the Veterans Court erred when
it determined that the VA did not violate the VCAA.
First, Mr. Lynch contends that the VA violated the VCAA
when it failed to mail all of the more than 400 signed
medical release forms that Mr. Lynch provided. Second,
LYNCH v. DVA 8
Mr. Lynch argues that the VA intentionally misplaced or
“lost” documents to keep them out of the record before the
agency. Third, he contends that the VA physician who
provided his discharge medical exam in 1974 made nega-
tive and abrasive statements to Mr. Lynch, and that those
statements are missing from the record.
We agree with the government that Mr. Lynch’s claim
regarding the VA’s compliance with the VCAA is outside
our jurisdiction. An inquiry on whether the VA complied
with the VCCA involves factual issues. See DeLaRosa v.
Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Glover v.
West, 185 F.3d 1328, 1333 (Fed. Cir. 1999); Garrison v.
Nicholson, 494 F.3d 1366, 1370 (Fed. Cir. 2007) (“deter-
mining compliance with 38 U.S.C. § 5103(a) is a fact
issue”). This court may not review the factual findings or
application of law to the facts. See 38 U.S.C. § 7292(d)(2);
Epps v. Gober, 126 F.3d 1464, 1466 (Fed. Cir. 1997) (“Our
jurisdiction does not extend to challenges either to factual
determinations or to the law as applied to the facts of a
particular case.”). We therefore dismiss this aspect of the
appeal for lack of jurisdiction.
Mr. Lynch argues that the Veterans Court did not
consider certain claims regarding his civilian career that
mirrored his military career, and that his Equal Employ-
ment Opportunity Commission claim should be reopened.
Also, for the first time on this appeal, Mr. Lynch cites 14
statutes and regulations besides the VCAA that he as-
serts the VA and the Veterans Court “violated”.
We affirm the Veterans Court determination that
“[t]hose arguments that do not relate to the claims on
appeal,” such as appellant’s arguments asserting em-
ployment discrimination or workers compensation, were
not properly before it. Vet. Ct. Op. at 3. The Board may
9 LYNCH v. DVA
only hear claims related to Title 38 of the United States
Code, and cannot entertain naked citations to other U.S.
laws and statutes unless the citations are legitimately
connected to the claims properly before it. As such, we
have no jurisdiction over claims related to Mr. Lynch’s
civilian career, or that concern purported violation of laws
and regulations that are brought for the first time on
appeal before this court. Forshey v. Principi, 284 F.3d
1335, 1351 (Fed. Cir. 2002) (en banc). See 38 U.S.C.
§§ 7252(a) and 7266(a).
Mr. Lynch further argues that the VA renumbered
pages, causing “wrong” facts to be raised before the Vet-
erans Court. The record reflects that the Veterans Court
ordered the VA to serve Mr. Lynch with a copy of the
complete record before the agency. The VA revised the
record and served Mr. Lynch in compliance with the
order. The Veterans Court reviewed his arguments and
disagreed with Mr. Lynch that the record of proceedings
necessarily required the same numbers as the revised
record. The Veterans Court’s rules of procedure provide
that “[i]f any dispute arises as to the preparation or
content of the [record before the agency], the [Veterans]
Court, on motion of any party, will resolve the matter.”
U.S. VET. APP. R. 10(b).
Similarly, Mr. Lynch contends that the Veterans
Court “seriously limited (constrained) my complaints, and
my ability to present proof for my claims (issues)” by
denying his motion for an increase in the page limitation
for his informal briefs. Appellant Br. at 23. The Veterans
Court’s rules of procedure provide that an informal brief
may not be longer than 30 pages. U.S. VET. APP. R. 28(e).
Although the Veterans Court denied Mr. Lynch’s request
to allow a 270 page brief, it allowed Mr. Lynch to add an
additional five pages to his briefs and denied any page
LYNCH v. DVA 10
increase to his reply brief. The Veterans Court’s enforce-
ment of its own procedural rules is entitled to substantial
discretion, and we see no abuse of discretion in this case.
See Carbino v. West, 168 F.3d 32, 35 (Fed. Cir. 1999). We
will not in this case overrule the Veterans Court with
respect to enforcement of its appellate rules of procedure,
such as the content of the record, or page limitations.
Mr. Lynch argues that he was not provided legal rep-
resentation and that the lack of legal counsel combined
with his disabilities so as to hinder his ability to fully
develop his case, all of which led to the Veterans Court
affirming the Board’s determination. The government
argues that Mr. Lynch was free to obtain legal counsel,
and it cites the Veterans Court website, which provides
claimants the ability to search for attorneys admitted to
practice before the Veterans Court. Further, the Veter-
ans Court provides claimants with copies of its rules and
procedures and information on how to appeal without
legal representation. We find no evidence in the record
that the Veterans Court or the VA affirmatively acted to
deny Mr. Lynch the opportunity to obtain legal counsel.
Mr. Lynch requests that this court appoint legal coun-
sel to represent him. In particular, Mr. Lynch argues
that he needs an attorney to pursue law suits that are not
before this court. We deny Mr. Lynch’s request for ap-
pointment of counsel as we generally do not appoint
counsel to represent petitioners.
Accordingly, we affirm-in-part and dismiss-in-part the
June 6, 2011 decision of the Veterans Court.
AFFIRMED-IN-PART and DISMISSED-IN-PART
Each party shall bear its own costs.