NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CLEVEN L. ROBERSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7112
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-2481,
Judge Alan G. Lance, Sr.
___________________________
Decided: November 9, 2010
___________________________
CLEVEN L. ROBERSON, Baltimore, Maryland, pro se.
DANIEL G. KIM, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
ROBERSON v. DVA 2
F. HOCKEY, JR., Assistant Director. Of counsel on the
brief was DAVID J. BARRANS, Deputy Assistant General
Counsel, United States Veterans Affairs, of Washington,
DC.
__________________________
Before NEWMAN, CLEVENGER, and BRYSON, Circuit
Judges.
PER CURIAM.
Cleven L. Roberson appeals from the final decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) which affirmed the July 24, 2008,
decision of the Board of Veterans’ Appeals (“Board”) that
denied Mr. Roberson an earlier effective date for the
award of his nonservice-connected disability pension. See
Dorsey v. Shinseki, No. 08-2481 (Vet. App. Feb. 23, 2010).
We dismiss Mr. Roberson’s appeal.
I
Mr. Roberson served in the United States Air Force
from September 1962 until December 1964. His initial
request for entitlement to nonservice-connected pension
benefits was denied in March 1984. He did not appeal
from this adverse decision, which thereby became final.
His attempt to reopen that claim was denied in October
1998, and again he did not appeal that ruling, which also
became final. On April 13, 2004, Mr. Roberson again
applied for a nonservice-connected disability pension.
This time he was successful, and the Baltimore regional
office granted him an effective date of April 13, 2004. Mr.
Roberson, however, disagreed with the assigned effective
date and argued that he was entitled to an effective date
of October 31, 1991, when the Social Security Administra-
3 ROBERSON v. DVA
tion determined that he was disabled. After an extended
period of discussion with the regional office, Mr.
Roberson’s request for an earlier effective date was de-
nied, and he appealed to the Board.
Mr. Roberson was afforded a hearing by the Board
chaired by Veterans Law Judge Keith Allen. Judge Allen
explained to Mr. Roberson that the effective date of a
claim is determined by the date the claim is made, and
that by failing to appeal from the denials of his requests
for benefits in 1984 and 1998 he lost the opportunity to
establish effective dates relative to those claims. The
possibility of an effective date retroactive from the April
13, 2004 filing was discussed, but not resolved, at the
hearing.
Shortly after the hearing, Judge Allen issued the
Board’s written decision denying Mr. Roberson an earlier
effective date from his April 13, 2004 claim. The decision
again noted that the effective date of a claim is tied to its
submission date, citing 38 U.S.C. § 5110(a) and 38 C.F.R.
§ 3.400. Under certain circumstances, the effective date
can be retroactive, see 38 C.F.R. § 3.400(b)(ii), however,
the regulations require a veteran to file his request for a
retroactive award within one year of the claimed disabil-
ity date. Because there is no evidence that Mr. Roberson
made a prior application that was not denied with final
and binding effect within one year of his claimed disabil-
ity date, the Board concluded that he failed to qualify for
a retroactive effective date based on § 3.400(b)(ii).
Mr. Roberson appealed the adverse Board decision to
the Veterans Court. With regard to Mr. Roberson’s
request for an earlier effective date, the Veterans Court
noted that the question of the proper effective date is a
question of fact, reviewable in that court for clear error.
ROBERSON v. DVA 4
Because the facts demonstrated that Mr. Roberson failed
to meet the one year filing time for a retroactive effective
date, the Board’s decision on that issue was affirmed.
The Veterans Court then turned to other issues raised by
Mr. Roberson.
Mr. Roberson raised the issue of the termination of
his benefits in 2006, apparently for failure to submit
required information and because of an overpayment of
benefits. Mr. Roberson had requested a waiver of the
debt resulting from the overpayment, but had not re-
ceived a decision on his waiver request at the time the
Board was reviewing his case. The Veterans Court con-
cluded that the Board had not adjudicated the issue of
termination of benefits, and consequently the Veterans
Court lacked authority to review the issue on appeal from
the Board’s decision. Mr. Roberson also raised the ques-
tion of whether Judge Allen should have recused himself
from making the decision of the Board because he had
served as the hearing official. The Veterans Court re-
jected this argument because the Board’s rules on recusal,
see 38 C.F.R. § 19.12, do not prevent the same Board
member from conducting a hearing and also deciding an
appeal.
Mr. Roberson timely sought review in this court of the
adverse final decision of the Veterans Court.
II
The jurisdiction of this court to hear appeals from the
Veterans Court is limited by statute. Under 38 U.S.C. §
7292(a), this court may 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
5 ROBERSON v. DVA
by the [Veterans Court] in making the decision.” Section
7292(c) vests this court with 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 constitutional
and statutory provisions, to the extent presented and
necessary to a decision.” Section 7292(d)(2) mandates
that, except to the extent an appeal from the Veterans
Court presents a constitutional issue, this court “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.”
Mr. Roberson’s appeal to this court does not expressly
challenge the rejection of his request for a retroactive
effective date. The determination of the effective date of a
claim is a question of fact. See Butler v. Shinseki, 603
F.3d 922, 926 (Fed. Cir. 2010). Even assuming that Mr.
Roberson is presenting his retroactive effective date
argument to this court, the argument raises nothing to us
other than an assessment of the facts as found by the
Board and the Veterans Court. We lack the authority to
review that issue, and thus dismiss it from the case.
Mr. Roberson raises what appears to be a new issue in
this court, which is whether the regional office erred by
issuing a supplemental statement of the case while his
request for an earlier effective date was under considera-
tion. Mr. Roberson cites 38 C.F.R. § 19.29(c) as grounds
for error by the regional office. That provision relates to
the contents of a statement of the case, and does not
restrict the timing of issuance of such statements. It
appears that Mr. Roberson is complaining that he was
notified by letter that he could not appeal the decision to
grant extraschedular nonservice-connected benefits
because the decision was in his favor. Mr. Roberson does
ROBERSON v. DVA 6
not dispute, however, that he also received a statement of
the case noting that his request for entitlement to an
earlier effective date was denied and the applicable laws
and regulations. The provision thus does not avail Mr.
Roberson.
Mr. Roberson renews his objection to Judge Allen
serving in a dual role in his case, but with a new twist.
Citing 38 C.F.R. § 19.2, Mr. Roberson avers that Keith
Allen as Chairman of the Board cannot also serve as a
Veterans Law Judge. Mr. Roberson relies on the tran-
script of his hearing, which refers to Judge Allen as
“Chairman.” While it is true that the actual Chairman of
the Board does not serve as a Veterans Law Judge, there
are two short answers to Mr. Roberson’s contention.
First, by referring to the presiding official at the hearing
as the Chairman of the hearing, that person does not
become the actual Chairman of the Board, which is a
position requiring confirmation by the United States
Senate. In fact, Mr. James P. Terry was confirmed by the
Senate for a six-year term as Chairman in July 2005.
Second, there is no legal error raised by a deciding judge
also serving as the Chairman of a Board hearing.
Finally, Mr. Roberson refers to the issue of the termi-
nation of his benefits in 2006 and his request for a waiver
of the debt associated with the overpayment of benefits.
Because there was no decision on this issue at the Board
or the Veterans Court, there is no actual decision for us to
review. We do note that the record before us shows that
Mr. Roberson’s request for a waiver was approved on May
12, 2010.
For the reasons stated above, Mr. Roberson’s appeal
presents issues that are beyond the reach of our jurisdic-
tion, and accordingly we dismiss his appeal.
7 ROBERSON v. DVA
COSTS
No costs.