Johnson v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CHARLES W. JOHNSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7180
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-3377, Judge Mary J.
Schoelen.
_________________________
Decided: June 11, 2012
_________________________
CHARLES W. JOHNSON, of Martinsburg, West Virginia,
pro se.
ALEXANDER V. SVERDLOV, Trial Attorney, Commercial
Litigation Branch, Civil Branch, 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,
JOHNSON v. SHINSEKI 2
and STEVEN J. GILLINGHAM, Assistant Director. Of coun-
sel on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and CHRISTA A. SHRIBER, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before DYK, SCHALL, and REYNA, Circuit Judges.
PER CURIAM.
Charles W. Johnson appeals the final decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) that affirmed the decision of the Board
of Veterans Appeals (“Board”) denying him entitlement to
an effective date earlier than November 18, 1999, for the
award of Department of Veterans Affairs (“VA”) pension
benefits. Johnson v. Shinseki, No. 09-3377, 2011 WL
1827867 (Vet. App. May 11, 2011). We dismiss for lack of
jurisdiction.
DISCUSSION
I.
Mr. Johnson served on active duty in the United
States Marine Corps from August 1974 to September
1976. In March 1996, he filed a claim with the VA for
non-service connected pension benefits. Pursuant to 38
U.S.C. § 1521(a), such benefits are paid to a “veteran of a
period of war who meets [certain service requirements]
and who is permanently and totally disabled from non-
service connected disability not the result of the veteran’s
willful misconduct.” The regional office (“RO”) denied the
claim in May 1996 and Mr. Johnson did not appeal.
In March 2004, Mr. Johnson filed a request to reopen
his claim. The following month, the RO awarded non-
service-connected pension benefits, effective from March
3 JOHNSON v. SHINSEKI
25, 2004, the date the RO received the request to reopen.
There then ensued a period of time during which Mr.
Johnson sought an earlier effective date for his benefits.
In December 2007, the VA issued a decision granting an
effective date of November 18, 1999 for the benefits.
Asserting, however, that his medical records established
that he was disabled as early as 1996, Mr. Johnson ap-
pealed to the Board. Subsequently, on May 13, 2009, the
Board rendered a decision in which it denied entitlement
to an effective date earlier than November 18, 1999. In re
Johnson, No. 05-13 864 (Bd. Vet. App. May 13, 2009).
The basis for the Board’s decision was its conclusion that
the preponderance of the evidence did not support a
finding that Mr. Johnson was permanently and totally
disabled prior to November 1999. Id. at 8.
On appeal to the Veterans Court, Mr. Johnson argued
that, in its decision, the Board had failed to provide an
adequate statement of reasons and bases for its decision.
He also contended that the VA had not complied with its
duty to assist him because it had failed to obtain certain
medical records. Mr. Johnson argued further that the
Board had improperly weighed the evidence and had
failed to consider all the evidence of record. The Veterans
Court rejected all three of Mr. Johnson’s arguments. As
far as the first argument was concerned, the court noted
that the Board had discussed at length the pertinent
medical records and had provided a detailed discussion of
the evidence. Johnson, 2011 WL 1827867 at *3-*4.
Accordingly, the court determined that the Board’s deci-
sion was supported by sufficient reasons and bases. Id. at
*4. Addressing the duty-to-assist argument, the court
pointed out that Mr. Johnson had not identified any
specific records that the VA had failed to obtain. Further,
it concluded that, to the extent there were missing re-
cords, there was no evidence that the absence of the
JOHNSON v. SHINSEKI 4
records had prejudiced Mr. Johnson. Id. at *5. Finally,
the Veterans Court determined that the Board’s factual
findings relevant to the effective date issue were not
clearly erroneous and that Mr. Johnson had not identified
any evidence that the Board failed to consider. Id. at *4.
The court therefore affirmed the Board’s decision; this
appeal followed.
II.
This court's ability to review a decision of the Veter-
ans Court is limited. Pursuant to 38 U.S.C. § 7292(a), we
may review “the validity of a decision of the [Veterans]
Court on a rule of law or of any statute or regula-
tion . . . or any interpretation thereof (other than a deter-
mination as to a factual matter) that was relied on by the
[Veterans] Court in making the decision.” We have
exclusive jurisdiction “to review and decide any challenge
to the validity of any statute or regulation or any inter-
pretation thereof brought under [38 U.S.C. § 7292], and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). However, except to the extent 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.” 38 U.S.C. § 7292(d)(2).
On appeal, Mr. Johnson argues that the Veterans
Court and the Board did not properly consider the evi-
dence regarding his disabilities and that the Veterans
Court therefore erred in affirming the Board’s ruling that
he was not entitled to an effective date earlier than No-
vember 18, 1999 for his pension benefits. This clearly is a
challenge to a factual determination, a matter over which
we lack jurisdiction. See Bastien v. Shinseki, 599 F.3d
1301, 1305-06 (Fed. Cir. 2010) (dismissing for lack of
5 JOHNSON v. SHINSEKI
jurisdiction because the appeal required the review of
factual determinations). Mr. Johnson also contends that,
in its decision, the Veterans Court erred in its interpreta-
tion of certain statutes and regulations, specifically: 38
U.S.C. § 7104(d)(1), 38 U.S.C. § 1521(a), and 38 C.F.R.
§§ 4.16, 4.17. Examination of the Veterans Court’s deci-
sion, however, makes it clear that the court did not inter-
pret any of these provisions, but rather applied their
requirements to the facts of the case. This also is a de-
termination which we do not have jurisdiction to review.
See Leonard v. Gober, 223 F.3d 1374, 1375-76 (Fed. Cir.
2000) (dismissing for lack of jurisdiction because the
appeal involved the application of law to the facts of the
case).
III.
Because all of Mr. Johnson’s arguments on appeal are
fact-based, they are beyond our jurisdiction. The appeal
is therefore dismissed.
Each party shall bear its own costs.
DISMISSED