Hunt v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY G. HUNT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7039
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4707, Judge Lawrence B.
Hagel.
______________________
Decided: July 16, 2013
______________________
ANTHONY G. HUNT, of Adrian, Michigan, pro se.
DANIEL B. VOLK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
2 ANTHONY HUNT v. SHINSEKI
Assistant General Counsel, and CHRISTA A. SHRIBER,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before NEWMAN, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
Anthony G. Hunt appeals pro se from the decision of
the United States Court of Appeals for Veterans Claims
(the “Veterans Court”) affirming a decision by the Board
of Veterans’ Appeals (“Board”) denying him relief for
injuries alleged to have occurred during his time in ser-
vice. Hunt v. Shinsheki, No. 09-4707 (Vet. App. July 29,
2009). We dismiss for lack of jurisdiction Mr. Hunt’s
claim for a finding of clear and unmistakable error
(“CUE”) in a September 1983 rating decision because Mr.
Hunt’s arguments relate to the weighing of evidence and
do not challenge the Veterans Court’s decision regarding
the validity or interpretation of a statute or regulation.
We affirm the denial of vocational rehabilitation benefits
because Mr. Hunt does not qualify for the requested relief
under 38 U.S.C. § 3102.
BACKGROUND
Mr. Hunt served in the United States Air Force from
December 1973 to February 1975. At the time of separa-
tion, his medical examination did not reveal signs of
disease or psychiatric conditions. After leaving the Air
Force, Mr. Hunt filed a series of claims for benefits.
In September 1983, a Department of Veterans Admin-
istration (“VA”) regional office denied Mr. Hunt’s claim for
a nervous condition he argues led to an overdose of medi-
cation in 1979 (“first claim”). The decision, which at-
tributed Mr. Hunt’s condition to misconduct that included
substance abuse, was not appealed and became final.
ANTHONY HUNT v. SHINSEKI 3
In June 1988, Mr. Hunt filed for non-service-
connection pension benefits due to emotional instability
and paranoia (“second claim”). The regional office denied
the second claim and Mr. Hunt did not appeal.
In December 1992, Mr. Hunt requested that the VA
reopen his second claim, stating that in the years follow-
ing discharge he experienced a nervous breakdown,
depression, psychotic symptoms, a history of drug abuse,
and alcohol dependence. After undergoing a VA medical
examination in January 1993, the examiner determined
that he suffered from major depression with psychotic
features, as well as an adjustment disorder. The medical
examiner found that the social and vocational condition
was 70% disabling. The regional office awarded pension
benefits commensurate with the non-service-connected
condition.
In March 1994, Mr. Hunt submitted a service-
connection claim for a neurological disorder, severe de-
pression, migraines, blurred vision, memory problems,
dizziness, heart problems, breathing problems, and unex-
plainable rage (“third claim”). The regional office denied
relief for the third claim, and specifically advised that the
claim for depression was bound up with the first claim
filed in 1983. The VA sent Mr. Hunt a letter advising
that his claim for depression was finally denied in 1983
and it would not be reconsidered without new and mate-
rial evidence. Mr. Hunt responded with a request that
the VA obtain his psychiatric records from Sheppard Air
Force Base to establish service-connection. The VA was
unable to locate any records from Sheppard Air Force
Base, but did obtain Mr. Hunt’s post-service medical
records from Henry Ford Hospital. The regional office
denied the request to reopen the first claim because the
additional records were not new and material.
Lastly, Mr. Hunt filed a claim for vocational rehabili-
tation benefits in January 1995. He asserted that he was
4 ANTHONY HUNT v. SHINSEKI
entitled to these additional benefits based on his 70%
rating for non-service-connected disabilities. The regional
office denied the request for vocational rehabilitation
benefits because Mr. Hunt’s disability was a non-service-
connected psychiatric condition.
THE APPELLATE LANDSCAPE
Mr. Hunt appealed the regional office’s decision not to
reopen the first claim and, after over a decade of adjudica-
tion and development, the case was remanded to deter-
mine whether the September 1983 regional office decision
denying service-connected benefits for a psychiatric
disorder contained CUE. In October 2008, the decision
review officer concluded that the September 1983 regional
office decision was properly decided based on the availa-
ble evidence of record at the time and the law then in
effect. Mr. Hunt appealed to the Board.
The Board affirmed all the issues presented on ap-
peal. The Board first affirmed that the 1983 regional
office decision was not the product of CUE. Mr. Hunt
argued that there was additional evidence that supported
his claim for service-connection benefits for a psychiatric
disorder and that the VA did not satisfy its duty to assist.
The Board acknowledged that the VA had not obtained
medical records from Sheppard Air Force Base, but de-
termined that further attempts to obtain such records
would be futile because they had either been destroyed,
or, in the event that Mr. Hunt never actually received in-
service psychiatric treatment, the records did not exist.
The Board also agreed that the records the VA obtained
from Henry Ford Hospital were not new and material.
The Board next determined as a matter of law that
Mr. Hunt was not entitled to vocational rehabilitation
benefits because he did not present a service-connected
disability.
ANTHONY HUNT v. SHINSEKI 5
In a single judge decision, the Veterans Court ad-
dressed all of Mr. Hunt’s arguments and affirmed the
Board’s decision. This appeal followed.
DISCUSSION
In his appeal to this court, Mr. Hunt returns to the
same issues on which his case was previously decided by
the Board and the Veterans Court. In particular, he
argues that the Veterans Court erred in not reversing the
decision finding no CUE in the September 1983 decision1
and he asserts that it is manifestly unjust to deny him
vocational rehabilitation benefits.
The CUE Challenge
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We have
jurisdiction over “all relevant questions of law, including
interpreting constitutional and statutory provisions.” 38
U.S.C. § 7292(d)(1). We lack jurisdiction, however, over
any “challenge to a factual determination” or “challenge to
a law or regulation as applied to the facts of a particular
case” absent a constitutional issue. 38 U.S.C. §
7292(d)(2). We therefore generally lack jurisdiction to
review challenges to the Board’s factual determinations.
See, e.g., Johnson v. Derwinski, 949 F.2d 394, 395 (Fed.
Cir. 1991).
1 Incorporated in Mr. Hunt’s arguments relating to
CUE are various complaints regarding the VA’s duty to
obtain evidence, including, in particular, medical records
from Sheppard Air Force Base. Both the Board and the
Veterans Court addressed these contentions in detail. We
do not discern any properly developed challenge to the
legal authority relied on by the Veterans Court that
would be sufficient to confer jurisdiction on this court over
his CUE claim.
6 ANTHONY HUNT v. SHINSEKI
The Veterans Court held, inter alia, that the Board
committed no CUE in denying the request to reopen Mr.
Hunt’s claim for a psychiatric disorder yet Mr. Hunt asks
us to overturn the September 1983 regional office deci-
sion. His arguments in support of the requested relief,
however, are premised on us reweighing and/or reevaluat-
ing the evidence in the record. As the Board pointed out,
“the gist of the Veteran’s arguments is that service con-
nection was wrongfully decided at that time. It is clear
that his attack on the September 1983 rating decision is a
disagreement as to how the facts were weighed and
evaluated.” J.A. 22.
This court has consistently held that a request to re-
weigh the evidence is not a valid CUE claim. E.g., Willsey
v. Peake, 535 F.3d 1368, 1373 (Fed. Cir. 2012). Rather,
the CUE provision applies when facts compel a conclu-
sion, to which reasonable minds could not differ. 38
C.F.R. § 20.1403; Yates v. West, 213 F.3d 1372, 1375 (Fed.
Cir. 2000) (internal citations omitted). A valid CUE claim
requires showing that the alleged error, had it not been
made, “would have manifestly changed the outcome at the
time it was made.” Bustos v. West, 179 F.3d 1378, 1380
(Fed. Cir. 1999) (quoting Russell v. Principi, 3 Vet. App.
310, 313 (Vet. App. 1992)); see also Cook v. Principi, 318
F.3d 1334, 1343 (Fed. Cir. 2002) (en banc); Fugo v. Brown,
6 Vet.App. 40, 44 (1993) (“Even where the premise of
error is accepted, if it is not absolutely clear that a differ-
ent result would have ensued, the error complained of
cannot be, ipso facto, clear and unmistakable error.”).
While Mr. Hunt may be dissatisfied with how the re-
gional office weighed the evidence in 1983, such a disa-
greement is insufficient to establish CUE. 38 C.F.R. §
20.1403(d) (“disagreement as to how the facts were
weighed or evaluated” cannot constitute CUE). Mr. Hunt
does not make legal arguments to challenge the validity
or interpretation of a statute or regulation on which the
Veterans Court relied, and Mr. Hunt does not present
ANTHONY HUNT v. SHINSEKI 7
constitutional issues. Fairly read, the items discussed in
the informal brief deal with nothing more than the nature
and extent of Mr. Hunt’s condition.
This court does not have jurisdiction to review Mr.
Hun’s fact-based contentions on appeal. See Andino v.
Nicholson, 498 F.3d 1370, 1373 (Fed. Cir. 2007) (noting
that this court should not be “making credibility determi-
nations or weighing evidence—all of which is beyond our
jurisdiction”); Yates, 213 F.3d at 1375. We therefore
dismiss the claim to reopen the September 1983 decision
of the regional office.
The Vocational Rehabilitation Challenge
Mr. Hunt argues that the Board and the Veterans
Court misapplied 38 U.S.C. § 3102 regarding entitlement
to vocational rehabilitation benefits and that the denial of
his claim for such benefits is manifestly unfair. We detect
no error in the underlying legal analysis. Indeed, the
statute straightforwardly requires a service-connected
disability in order for Mr. Hunt to receive, or to elect to
receive, vocational rehabilitation benefits. The eligibility
provision states, in relevant part:
A person shall be entitled to a rehabilitation pro-
gram under the terms and conditions of this chap-
ter if the person is a veteran who has a service-
connected disability rated at 20 percent or more
which was incurred or aggravated in service on or
after September 16, 1940; or . . . the person is a
veteran who has a service-connected disability rat-
ed at 10 percent which was incurred or aggravat-
ed in service on or after September 16, 1940.
38 U.S.C. § 3102(a) (emphases added) (non-pertinent
subsections omitted).
In this case the Board found that “the Veteran does
not have any service-connected disability” and he there-
fore did not “meet the basic prerequisite legal criteria for
8 ANTHONY HUNT v. SHINSEKI
[vocational rehabilitation] benefits.” J.A. 27. To the
extent Mr. Hunt now argues that he is eligible for voca-
tional rehabilitation benefits based on his psychiatric
condition, we do not revisit issues of fact on appeal. We
agree with the Veterans Court’s legal conclusion that
entitlement to non-service-connected pension benefits
does not, under the statute, confer service-connected
compensation benefits. Because Mr. Hunt does not meet
the statutory requirements to receive vocational rehabili-
tation benefits, the corresponding discussion in the Veter-
an Court’s decision is affirmed.
CONCLUSION
The Veterans Court, in a thorough and detailed anal-
ysis, considered all of Mr. Hunt’s arguments and conclud-
ed that Mr. Hunt failed to show any basis for relief. We
have again considered Mr. Hunt’s grievances on appeal.
Because Mr. Hunt’s CUE arguments are beyond the scope
of this court’s jurisdiction, we dismiss claims arising out
of those arguments. We affirm the Veterans Court’s
decision denying all other relief.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
Each party shall bear its own costs.