Elliot Bender v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELLIOT BENDER,
Claimant-Appellant,
v.
Eric K. Shinseki,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
______________________
2012-7175
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-3707, Judge William A. Moor-
man.
______________________
Decided: March 12, 2013
______________________
ELLIOT BENDER, of Las Vegas, Nevada, pro se.
DANIEL RABINOWITZ, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy
2 ELLIOT BENDER v. SHINSEKI
Assistant General Counsel, and JOSHUA P. MAYER, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before DYK, MAYER, and MOORE, Circuit Judges.
PER CURIAM.
Claimant-Appellant Elliot Bender appeals from the
decision of the United States Court of Appeals for Veter-
ans Claims (Veterans Court) affirming two decisions of
the Board of Veterans’ Appeals (Board). Bender v.
Shinseki, No. 10-3707, 2012 WL 1739713 (Vet. App. May
17, 2012). For the reasons stated below, we dismiss for
lack of jurisdiction.
BACKGROUND
Mr. Bender served on active duty in the Army from
January 1956 to January 1958. While in service, he
received treatment for tinea versicolor, “a common, chron-
ic, usually symptomless disorder, characterized by macu-
lar patches of various sizes and shapes.” A1 n.1 (quoting
Dorland’s Illustrated Medical Dictionary 1930 (32d ed.
2012)). Upon separation from service, Mr. Bender re-
ceived a medical examination in which he indicated a
history of a skin condition. A clinical evaluation at sepa-
ration, however, found that Mr. Bender’s skin appeared
normal.
In November 1958, Mr. Bender filed a claim of enti-
tlement to service connection for his skin condition. The
Regional Office (RO) denied his claim (1958 Rating Deci-
sion). The RO found no evidence that Mr. Bender had a
residual skin condition after his discharge based on a
November 1958 statement in which he denied receiving
any skin treatment after service. Mr. Bender did not
appeal the 1958 Rating Decision, and it became final.
ELLIOT BENDER v. SHINSEKI 3
In January 2004, Mr. Bender filed another claim of
entitlement to service connection for his on-going skin
condition. The RO granted his claim and assigned a 10%
disability rating, effective January 6, 2004. Mr. Bender
appealed to the Board, asserting clear and unmistakable
error (CUE) in the 1958 Rating Decision and seeking an
earlier effective date. The Board, however, denied both
claims in 2007. This decision became final after the
Board denied Mr. Bender’s motion for reconsideration.
Mr. Bender then filed a claim with the RO claiming
CUE in the 2007 decision, which was denied in 2008. Mr.
Bender again appealed to the Board, which issued two
decisions in November 2010 (Board’s 2010 Decisions).
First, the Board found no CUE in its prior 2007 decision.
Second, the Board found that Mr. Bender and his repre-
sentative had withdrawn his claim for an earlier effective
date at a hearing before the presiding judge in January
2010.
Mr. Bender appealed to the Veterans Court, which af-
firmed the Board’s decisions. Bender, 2012 WL 1739713,
at *7. First, the Veterans Court affirmed the Board’s
2010 decision finding that there was no CUE in the
Board’s 2007 Decision because certain allegedly over-
looked records about Mr. Bender’s skin treatments during
service, even if considered, would not have resulted in a
“manifestly different” outcome about the absence of
evidence of a residual condition after service. Id. at *5.
Second, the Veterans Court considered Mr. Bender’s
argument that the 1958 Rating Decision failed to apply
the chronic condition provision of 38 C.F.R. § 3.303(b). It
determined that the issue was not properly on appeal
because Mr. Bender had not raised it below. Id. Third,
the Veterans Court found no error in the Board’s deter-
mination that Mr. Bender had withdrawn his appeal of
the denial of an earlier effective date. Id. at *6. Mr.
Bender timely appealed to our court.
4 ELLIOT BENDER v. SHINSEKI
DISCUSSION
We have jurisdiction to review “the validity of a deci-
sion 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 also have exclusive
jurisdiction to “review and decide any challenge to the
validity of any statute or regulation or any interpretation
thereof brought under this section, and to interpret con-
stitutional and statutory provisions, to the extent pre-
sented and necessary to a decision.” Id. § 7292(c). We
lack jurisdiction, however, to review a challenge to factual
determinations or the application of a law or regulation to
particular facts, except to the extent that an appeal
presents a constitutional issue. Id. § 7292(d)(2).
Mr. Bender contends that the Veterans Court decision
involved the validity or interpretation of a regulation.
Appellant’s Informal Br. (App. Br.), Resp. No. 2; Reply Br.
at 1-3. The only regulation he cites is 38 C.F.R. §
3.303(b), which provides that, “[w]ith chronic disease
shown as such in service . . . so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to intercur-
rent causes.” Mr. Bender also appears to argue that
records of his treatment for skin conditions during service
from 1956-1957 establish a chronic condition under §
3.303(b), yet were ignored in prior proceedings. We do not
have jurisdiction based on these arguments for two rea-
sons.
First, the Veterans Court did not address § 3.303(b).
It found that Mr. Bender made no such arguments before
the Board and that it would not address issues raised for
the first time on appeal. Bender, 2012 WL 1739713, at *5.
Accordingly, the Veterans Court did not make a decision
ELLIOT BENDER v. SHINSEKI 5
on, or interpret, any aspect of § 3.303(b) in rendering its
judgment, as is required to establish our jurisdiction. 38
U.S.C. § 7292(a). Further, “it would be imprudent for us
to address the issue without the benefit of its having been
properly presented to, and decided by, the Veterans
Court.” Emenaker v. Peake, 551 F.3d 1332, 1339 (Fed.
Cir. 2008). Second, the Veterans Court found that evi-
dence regarding Mr. Bender’s treatment during service
would not have resulted in a “manifestly different” out-
come because the original 1958 Rating Decision relied on
his recovery after service. 2012 WL 1739713, at *5. Mr.
Bender asks us to review how the Veterans Court evalu-
ated facts about his skin condition in applying a regula-
tion, and that is beyond our jurisdiction. See Conway v.
Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004).
Mr. Bender next alleges that the VA deprived him of
his constitutional rights by requiring him to appoint a
representative before adjudicating the 2010 Board pro-
ceeding. Reply Br. at 3. We disagree. The VA did not
require Mr. Bender to appoint a representative to proceed
with his case. See Reply Br. at Attachment B. On these
facts, we find that Mr. Bender has not raised a constitu-
tional issue. Moreover, the Veterans Court determined
that Mr. Bender’s claim for an earlier effective date was
an improper attempt to overcome the finality of the 1958
Rating Decision. 2012 WL 1739713, at *6. That determi-
nation did not hinge on the constitutional issue Mr.
Bender alleges.
Finally, Mr. Bender argues that the Board’s 2010 De-
cisions failed to address “new and material evidence,”
which presumably refers to his in-service medical records.
App. Br., Resp. Nos. 4-5. The Veterans Court addressed
those records and determined that they would not result
in a “manifestly different” outcome. 2012 WL 1739713, at
*5-6. That was a factual evaluation that we lack jurisdic-
tion to review. Conway, 353 F.3d at 1372.
6 ELLIOT BENDER v. SHINSEKI
We have considered Mr. Bender’s arguments on ap-
peal, and conclude that they do not present an issue over
which we have jurisdiction.
DISMISSED
COSTS
No costs.