Proceviat v. Peake

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-7113

RICHARD A. PROCEVIAT,

Claimant-Appellant,

v.

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

Respondent-Appellee.

Richard A. Proceviat, of Elma, Manitoba, Canada, pro se.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the
brief was Michael J. Timinski, Deputy Assistant General Counsel, Office of the General
Counsel, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Robert N. Davis
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-7113

RICHARD A. PROCEVIAT,

Claimant-Appellant,

v.

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 05-3073, Judge
Robert N. Davis.

___________________________

DECIDED: October 15, 2008
___________________________

Before LOURIE, RADER and BRYSON, Circuit Judges.

PER CURIAM.

The United States Court of Appeals for Veterans Claims (Veterans Court) upheld

the Board of Veterans’ Appeals’ (Board) denial of Mr. Richard A. Proceviat’s claim for

an effective date earlier than June 7, 1996 for the award of a special monthly pension

(SMP). The Veterans Court also affirmed the Board’s finding that there was no clear

and unmistakable error (CUE) in a November 29, 1989, rating decision. Because Mr.

Proceviat only challenges the lower courts’ factual determinations and application of law

to the facts, this appeal falls outside this court’s jurisdiction. This court therefore

dismisses Mr. Proceviat’s appeal.
 I

Mr. Proceviat served in active duty from June 1970 to February 1972. In March

1987, Mr. Proceviat wrote a letter to the Department of Veterans Affairs (VA) indicating

that he wanted to apply for VA pension benefits. Upon receiving an application, Mr.

Proceviat applied for nonservice-connected pension benefits in July 1987. In this

application, Mr. Proceviat reported a history of rheumatoid arthritis (RA). Attached to

this application was a July 1987 statement from a private physician indicating that he

had treated Mr. Proceviat for RA and severe hand deformities.

In January 1989, the Department of Veterans Affairs (VA) Regional Office (RO)

denied Mr. Proceviat’s claim for pension benefits because the appellant was not

precluded from gainful employment. After receiving a statement from the appellant

indicating that he had to quit his job as a construction worker due to his RA, the VA

examined Mr. Proceviat in July 1989. In a November 1989 rating decision, the RO

granted Mr. Proceviat nonservice-connected pension benefits effective as of August

1989. The RO found that the veteran’s RA was 60 percent disabling for the purposes of

his nonservice-connected pension claim.

In May 1996, Mr. Proceviat applied for SMP based on the need for regular aid

and attendance of another person. In his application, Mr. Proceviat noted that he had

difficulties performing the usual activities of daily life. In an October 1996 rating

decision, the RO granted Mr. Proceviat’s SMP application and assigned an effective

date of June 7, 1996.

In a March 1997 statement to the RO, Mr. Proceviat indicated that the VA should

have construed his March 1987 claim for nonservice-connected pension benefits as a

2008-7113 2
claim for SMP based on the need for aid and attendance.

In November 1997, Mr. Proceviat filed a notice of disagreement seeking an

earlier effective date. Mr. Proceviat also alleged that the RO committed a CUE in its

November 1989 rating decision. In March 1998, the RO responded that equitable relief

was not warranted because evidence did not indicate a need for regular aid and

attendance prior to June 7, 1996.

In a November 2001 statement, Mr. Proceviat argued that the RO had not

considered his entitlement to aid and attendance, and that the RO’s rationale for his

November 1989 disability rating was inadequately explained.

In August 2005, the Board denied both of Mr. Proceviat’s claims. Regarding

appellant’s claim for a March 1987 effective date, the Board rejected Mr. Proceviat’s

assertion that his 1987 claim for pension benefits should have been treated as an

informal claim for SMP. The Board also rejected Mr. Proceviat’s allegation of CUE,

noting that the November 1989 decision evaluated and weighed evidence and, thus, did

not provide a sufficient basis for a finding of CUE.

In October 2007, the Veterans Court affirmed the Board’s decision. In April

2008, the Veterans Court entered judgment. This appeal followed.

II

This court has limited jurisdiction to review the decisions of the Veterans Court.

See 38 U.S.C. §7292 (2008). As proscribed by 38 U.S.C. § 7292(d)(2), except for

constitutional issues, this court “may not review any ‘challenge to a factual

determination’ or any ‘challenge to a law or regulation as applied to the facts of a

2008-7113 3
particular case.’” Buchanan v. Nicholson, 451 F.3d 1331, 1334 (Fed. Cir. 2006) (citing

38 U.S.C. § 7292(d)(2)).

A. Entitlement to an Earlier Effective Date

On appeal, Mr. Proceviat argues that he is entitled to an earlier effective date

based on the submission of a July 1987 medical report attached to his original pension

application. According to Mr. Proceviat, the attached medical report “constitute[d] an

informal claim for SMP A&A [aid and attendance].” See Attachment to Claimant-

Appellant’s Brief at 3.

38 C.F.R. § 3.155 governs informal claims and provides that “[a]ny

communication or action, indicating an intent to apply for one or more benefits . . . from

a claimant . . . may be considered an informal claim.” 38 C.F.R. § 3.155(a) (2008).

Furthermore, the “informal claim must identify the benefit sought. “ Id.

Determining whether an informal claim for aid and attendance has been filed

requires an application of the law, that is, applying the definition of an informal claim

under § 3.155(a) to the facts of a particular case. Contrary to Mr. Proceviat’s allegation

that the VA failed to acknowledge, consider, or even discuss the July 1987 medical

report, the Board found that “a July 1987 statement from the veteran’s private physician

… [provided] no indication that the veteran was unable to dress, keep himself clean and

presentable, feed himself, or attend to the wants of nature due to his RA.” In the Appeal

of Richard A. Proceviat, Bd. Vet. App. Docket No. 95-18 908 at 20 (Order, Aug. 24,

2005). Based on Mr. Proceviat’s “earlier [1987] pension application, as well as other

evidence,” the Veterans Court stated that it was “unable to conclude that the appellant

intended to make such a claim [for aid and attendance] prior to the current effective

2008-7113 4
date.” Proceviat v. Mansfield, Ct. Vet. App. Docket No. 05-3073 at 3 (Memorandum

Decision, Oct. 22, 2007). Because this court “may not review any challenge to a . . .

regulation as applied to the facts of a particular case”, this court lacks jurisdiction to

decide whether the attached medical report constitutes an informal claim. Buchanan,

451 F.3d at 1334.

Mr. Proceviat further argues that the VA should have construed his July 1987

medical report as an informal claim under 38 C.F.R. § 3.157(b)(2). § 3.157(b) provides

that

(b) … Once a formal claim for pension or compensation has been allowed . . .
receipt of one of the following will be accepted as an informal claim for increased
benefits
...
(2) Evidence from a private physician or layman. The date of receipt of
such evidence will be accepted when the evidence furnished . . .
shows the reasonable probability of entitlement to benefits.

§ 3.157(b) (2008) (emphasis added). Although Mr. Proceviat failed to make this

argument in lower proceedings, the Board’s and Veterans Court’s analysis of the

1987 private medical report suggests that even if the medical report was treated

as an informal claim, there was no “reasonable probability of entitlement to

benefits.” As mentioned above, both the Board and Veterans Court found no

indication that Mr. Proceviat intended to apply for enhanced benefits from the

1987 medical report. Thus, Mr. Proceviat’s alternative reliance on § 3.157(b)(2)

is unavailing.

For these reasons, this appeal is dismissed for lack of jurisdiction.

B. Allegation of a Clear and Unmistakable Error

Mr. Proceviat contends that the Board erred in finding no CUE in the November

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1989 rating decision. 1 A clear and unmistakable error is “a very specific and rare kind

of error . . . that when called to the attention of later reviewers compels the conclusion,

to which reasonable minds could not differ, that the result would have been manifestly

different but for the error.” 38 C.F.R. § 20.1403(a) (2008). § 20.1403(d) identifies

examples of situations that are not clear and unmistakable error. See § 20.1403(d).

Among these examples, § 20.1403(d)(3) states that “disagreement[s] as to how the

facts were weighed or evaluated” cannot raise a CUE. Id.

On appeal, Mr. Proceviat argues that the RO erred in assigning a 60 percent

disability rating. Both the Board and Veterans Court explained that determinations

concerning the application of the diagnostic code do not support a finding of CUE

because such decisions involve the weighing and evaluation of the evidence under §

20.1403(d)(3). The Board found and the Veterans Court agreed that although Mr.

Proceviat “had marked deformity of his hands and feet due to RA … [t]here … [was] no

indication … that the veteran required assistance with his activities of daily living.” In

the Appeal of Richard A. Proceviat, Bd. Vet. App. Docket No. 95-18 908 at 23. Because

Mr. Proceviat has not raised a CUE, this court dismisses Mr. Proceviat’s appeal.

DISMISSED

COSTS

Each party shall bear its own costs.

1
Mr. Proceviat asserts without explanation or analysis that his CUE claim is also governed by “the cases
of Moody, Roberson, Hodge, Andrews, Szemraj, and Richardson and VA General Counsel Opinion 4-
2004.” Attachment to Claimant-Appellant’s Brief at 1, 4. The cited cases and the VA General Counsel
Opinion are inapposite and do not apply. This court cannot consider the Andrews decision as no
identifying citation is provided.

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