Ellington v. Peake

United States Court of Appeals for the Federal Circuit
2008-7012

THOMAS ELLINGTON, JR.,

Claimant-Appellant,

v.

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

Respondent-Appellee.

Sandra E. Booth, of Columbus, Ohio, argued for claimant-appellant.

Meredyth D. Cohen, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director.
Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and
Jamie L. Mueller, Attorney, United States Department of Veterans Affairs, Office of the
General Counsel, Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Alan G. Lance, Sr.
United States Court of Appeals for the Federal Circuit

2008-7012

THOMAS ELLINGTON, JR.,

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 04-0403, Judge
Alan G. Lance, Sr.

DECIDED: September 16, 2008

Before NEWMAN, SCHALL, and MOORE, Circuit Judges.

SCHALL, Circuit Judge.

Thomas Ellington, Jr. is a veteran. In April of 2002, the Cleveland Regional

Office (“RO”) of the Department of Veterans Affairs (“VA”) awarded Mr. Ellington

secondary service connection for two disabilities, diabetes mellitus and hypertension.

Ellington v. Nicholson, 22 Vet. App. 141, 143 (2007) (“Ellington II”). At the same time, it

set an effective date of September 10, 1998, for the conditions. Id. Mr. Ellington

appealed that decision to the Board of Veterans’ Appeals (“Board”), seeking to move

the effective date back to either October 1990 or October 1993. The Board affirmed the
RO’s assignment of a September 10, 1998 effective date, In re Ellington, No. 03-18 043

(Bd. Vet. App. Mar. 8, 2004) (“Ellington I”), and Mr. Ellington appealed to the Court of

Appeals for Veterans Claims (“Veterans Court”). The Veterans Court affirmed the

decision of the Board. See generally Ellington II. Mr. Ellington now appeals to us. We

affirm.

BACKGROUND

I.

Mr. Ellington served on active duty in the United States Navy from October 1963

through September 1967. Id. at 142. During that time, he was exposed to jet fuel

solvents and electromagnetic radiation, both of which are carcinogens. In October of

1990, after being diagnosed with non-lymphocytic leukemia, Mr. Ellington filed a claim

with the Cleveland RO for service connection for the condition. Id.

The RO twice denied Mr. Ellington’s claim for service connection for his

leukemia, once in June 1992 and again in January 1993. Id. Following the second

denial, on October 6, 1993, Mr. Ellington underwent a VA Compensation and Pension

Rating Examination to determine the service connectedness of his leukemia. Id. As

part of that examination, Mr. Ellington completed a Report for Medical Examination for

Disability Evaluation, known as VA Form 21-2545. Id. In response to a question on the

form asking him to list his symptoms, Mr. Ellington provided the following information:

“FATIGUE, SKIN PROBLEMS FROM CHEMOTHERAPY; EAR PROBLEMS, HIGH

BLOOD PRESSURE; BORDERLINE DIABETIC.” Id.

2008-7012 2
 In September of 1996, following his appeal, the Board concluded that Mr.

Ellington’s leukemia was service connected and awarded him an effective date for the

condition of October 31, 1990, the date his claim was filed. Id.

On September 10, 1998, the Cleveland RO received a letter from Mr. Ellington’s

representative purporting to be an “‘an informal claim’” for service connection for

diabetes and hypertension. Id. at 142–43. An informal claim is “[a]ny communication or

action, indicating an intent to apply for one or more benefits under the laws

administered by the Department of Veterans Affairs, from a claimant, his or her duly

authorized representative, a Member of Congress, or some person acting as next friend

of a claimant who is not sui juris.” 38 C.F.R. § 3.155(a) (2007); see also Rodriguez v.

West, 189 F.3d 1351, 1353 (Fed. Cir. 1999). The RO initially denied Mr. Ellington’s

claim for service connection for these two ailments. Ellington II, 22 Vet. App. at 143. In

March of 2002, however, the Board awarded Mr. Ellington service connection for both

diabetes and hypertension as conditions secondary to his leukemia. Id. A secondary

condition is a “disability which is proximately due to or the result of a service-connected

disease or injury.” 38 C.F.R. § 3.310(a). One month later, the RO assigned each

disability a September 10, 1998 effective date. Ellington II, 22 Vet. App. at 143.

Mr. Ellington appealed the Cleveland RO’s assignment of a September 10, 1998

effective date to the Board. Before the Board, Mr. Ellington raised numerous

arguments, only one of which is relevant to the present appeal. Specifically, Mr.

Ellington argued that his secondary conditions, diabetes and hypertension, arose from

his original condition of leukemia and must therefore receive an identical effective date.

Ellington I, slip op. at 15. The Board summarily rejected this argument, concluding that

2008-7012 3
it would be illogical to always extend the effective date for secondary conditions to the

effective date for the underlying primary condition when the secondary conditions could

potentially arise years after the onset of the primary condition. Id. Accordingly, the

Board affirmed the RO’s decision to assign a September 10, 1998 effective date to the

secondary conditions. Id. at 16.

Mr. Ellington appealed the Board’s decision to the Veterans Court. On

September 13, 2006, the court affirmed the Board’s decision in a single-judge decision.

Ellington II, 22 Vet. App. at 143. Mr. Ellington then moved for panel reconsideration,

which the court granted. Id. Accordingly, the court withdrew the single-judge decision

and heard Mr. Ellington’s appeal as a panel. Id.

II.

Before the Veterans Court, Mr. Ellington raised two alternative arguments, each

directed at establishing an earlier effective date for his diabetes and hypertension. First,

Mr. Ellington argued that he was entitled to an October 31, 1990 effective date. Id. at

144. In support of this argument, Mr. Ellington pointed to 38 C.F.R. § 3.310(a), which

provides in relevant part that “[w]hen service connection is . . . established for a

secondary condition, the secondary condition shall be considered a part of the original

condition.” Id. Mr. Ellington maintained that section 3.310(a) must be read literally to

provide that a secondary condition be treated completely identically to the original

condition, which includes assigning to it the same effective date as the original

condition. Id. Alternatively, Mr. Ellington argued that he had made an informal claim for

service connection for diabetes and hypertension when he listed those two symptoms

2008-7012 4
on VA Form 21-2545 on October 6, 1993, and that he should therefore have that date

as the effective date for his secondary conditions. Id. at 145.

The Veterans Court rejected both of these arguments. With respect to Mr.

Ellington’s argument that 38 C.F.R. § 3.310(a) requires that a secondary condition

receive an effective date identical to that assigned to the underlying primary condition,

the court concluded that its decision in Roper v. Nicholson, 20 Vet. App. 173 (2006),

aff’d, 240 Fed. Appx. 422 (2007), foreclosed such an interpretation of section 3.310(a).

Ellington II, 22 Vet. App. at 145. In Roper, the Veterans Court held that section 3.310(a)

deals solely with entitlement to disability ratings, not with the administrative details of

assigning such ratings. 20 Vet. App. at 180. Furthermore, the court noted, Roper held

that primary and secondary conditions must be afforded the same treatment. Ellington

II, 22 Vet. App. at 145; Roper, 20 Vet. App. at 181. Thus, the court concluded, the

effective dates for both primary and secondary conditions are governed by 38 C.F.R.

§ 3.400, which provides that the effective date is the later of the date the condition arose

or the date the veteran applied for benefits. Ellington II, 22 Vet. App. at 145.

Accordingly, the court reasoned that since Mr. Ellington applied for benefits on

September 10, 1998, and since his diabetes and hypertension likely arose prior to that

date, making the application date later than the date the conditions arose, he was

properly assigned September 10, 1998 as the effective date for his diabetes and

hypertension secondary conditions. Id.

In addressing Mr. Ellington’s argument that he informally filed for benefits on

October 6, 1993 upon completing VA Form 21-2545, the Veterans Court pointed to 38

C.F.R. § 3.155(a). That regulation requires a veteran filing an informal claim to

2008-7012 5
“indicat[e] an intent to apply for one or more benefits under the laws administered by the

[VA].” 38 C.F.R. § 3.155(a). While acknowledging its obligation to “sympathetically

read” a veteran’s filing to determine if it constitutes an informal claim, Moody v. Principi,

360 F.3d 1306, 1310 (Fed. Cir. 2004), the court nonetheless concluded that, even

reading Mr. Ellington’s submissions in VA Form 21-2545 sympathetically, it was unable

to conclude that he had expressed a sufficient “intent to apply” for service connection for

diabetes and hypertension in 1993, Ellington II, 22 Vet. App. at 145–46. The court

stated:

VA Form 21-2545 is designed to elicit information from a claimant for
diagnostic purposes only. VA had no reason to assume—and the
appellant had no reason to believe—that an application for benefits was
being filed each time he answered a question on the form by providing
current medical information.

Id. The Veterans Court did not, however, hold that statements made on VA Form 21-

2545 could never constitute an informal claim. The court observed: “We de not hold

that the submission of a document in connection with a VA examination could never

constitute an informal claim.” Id. at 146. Rather, the court concluded that, in Mr.

Ellington’s case, the VA could not properly discern an “intent to apply” for benefits from

his mere listing of symptoms. Id. As the court observed, Mr. Ellington listed five

symptoms on VA Form 21-2545. Id. Yet, he only claimed service connection for two of

those five symptoms, without providing any methodology by which the VA could

distinguish symptoms for which service connection was claimed from those for which it

was not claimed. Id. Thus, the Veterans Court concluded, Mr. Ellington’s statements

on VA Form 21-2545 in 1993 did not constitute an informal claim, and he therefore

2008-7012 6
could not claim an entitlement date earlier than September 10, 1998 for his secondary

conditions. Id. at 146–47.

DISCUSSION

I.

Pursuant to 38 U.S.C. § 7292(c), we have limited jurisdiction to review decisions

of the Veterans Court. Boggs v. Peake, 520 F.3d 1330, 1333 (Fed. Cir. 2008).

Specifically, we possess “exclusive jurisdiction to review and decide any challenge to

the validity of any statute or regulation or any interpretation thereof . . . and to interpret

constitutional and statutory provisions, to the extent presented and necessary to a

decision.” 38 U.S.C. § 7292(c) (2000). We also have jurisdiction to review decisions of

the Veterans Court on issues of law. Jordan v. Nicholson, 401 F.3d 1296, 1297 (Fed.

Cir. 2005). However, “[e]xcept 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.

§ 292(d)(2). Thus, we have jurisdiction to hear Mr. Ellington’s appeal only to the extent

that it raises issues of law. To the extent that Mr. Ellington’s appeal raises issues of fact

or issues of law applied to fact, we do not have jurisdiction to consider his claims.

In considering any issues of law properly raised by Mr. Ellington’s appeal, we

review de novo the decision of the Veterans Court. Boggs, 520 F.3d at 1334; Summers

v. Gober, 225 F.3d 1293, 1295 (Fed. Cir. 2000). We set aside the Veterans Court’s

conclusions on an issue of law if they are found to be “(a) arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law; (b) contrary to constitutional right,

power, privilege, or immunity; (c) in excess of statutory jurisdiction, authority, or

2008-7012 7
limitations, or in violation of a statutory right; or (d) without observance of procedure

required by law.” 38 U.S.C. § 7292(d)(1).

On appeal, Mr. Ellington raises two contentions. First, he argues that he is

entitled to an October 31, 1990 effective date for his diabetes and hypertension. As he

did before the Veterans Court, he urges that primary and secondary conditions must be

treated identically and therefore must be assigned identical effective dates.

Alternatively, he argues that he is entitled to an October 6, 1993 effective date for his

secondary conditions. He contends that his submission of VA Form 21-2545

constituted an informal claim and that his effective date should therefore arise upon the

submission of that form. We address these contentions in turn.

II.

A.

In arguing for an October 31, 1990 effective date, Mr. Ellington contends that the

Veterans Court misinterpreted 38 C.F.R. §§ 3.310 and 3.400 in determining that a

veteran cannot receive secondary service connection for a disability until he or she has

specifically filed a claim for service connection for that disability. Pointing out that

section 3.400 does not distinguish between primary and secondary conditions, he

argues that this lack of a distinction implicitly establishes that both types of claims must

be treated identically, which includes the receipt of identical effective dates. Mr.

Ellington further argues that section 3.310 reinforces such equal treatment of primary

and secondary conditions. That section provides that secondary conditions are to be

considered “part of the original condition.” 38 C.F.R. § 3.310. For secondary conditions

2008-7012 8
to be treated as “part of the original condition,” Mr. Ellington argues, they must receive

the same effective date.

Mr. Ellington also contends that the Veterans Court erred in its reliance on

Roper. Specifically, Mr. Ellington maintains that Roper presented a different legal issue

from the one presented in this case and is distinguishable on the facts. In addition, he

states that Roper contains language suggesting that original and secondary conditions

should receive similar treatment. See 20 Vet. App. at 181 (“Based on the regulatory

history, we find that the plain meaning of the regulation is and has always been to

require VA to afford secondarily service-connected conditions the same treatment (no

more or less favorable treatment) as the underlying service-connected conditions for all

determinations.”). This language, Mr. Ellington asserts, supports his contention that his

secondary conditions should receive an effective date identical to that for his primary

condition.

The government takes the position that we have jurisdiction to hear Mr.

Ellington’s claim for the October 31, 1990 effective date, which depends upon the purely

legal issue of the proper interpretation of certain regulations. On the merits, the

government responds to Mr. Ellington’s contentions by arguing that his literal reading of

38 C.F.R. § 3.310 conflicts both with the plain-meaning of 38 C.F.R. § 3.400 and with

the Veterans Court’s decision in Roper. Under section 3.400, the government argues,

the effective date for any disability, primary or secondary, is the “date of receipt of claim,

or [the] date entitlement arose, whichever is later.” Thus, the government contends, the

effective date for a secondary condition cannot arise any earlier than the date on which

a veteran applies for benefits related to that condition. According to the government,

2008-7012 9
because Mr. Ellington did not submit an application for benefits related to diabetes and

hypertension until September 10, 1998, his effective date for those benefits can be no

earlier than that date.

The government further notes that Roper forecloses a literal interpretation of

section 3.310 that would require secondary and primary conditions to receive identical

effective dates. According to the government, in Roper the Veterans Court held that

section 3.310 deals only with entitlement to service connection and leaves to other

provisions of the regulations, such as section 3.400, the details of assigning effective

dates.

B.

We agree with the parties that we have jurisdiction to consider Mr. Ellington’s

claim. Mr. Ellington’s claim to an October 31, 1990 effective date depends entirely upon

the interpretation of certain regulations, specifically 38 C.F.R. §§ 3.310 and 3.400. We

are thus presented with a purely legal issue, which we have the authority to adjudicate.

Mr. Ellington correctly notes that section 3.310 provides that “[w]hen service

connection is . . . established for a secondary condition, the secondary condition shall

be considered a part of the original condition.” However, a requirement that a

secondary condition “be considered a part of [an] original condition” does not, in our

view, establish that the original condition and the secondary condition must receive

identical effective dates. Indeed, a per se rule requiring identical effective dates for

primary and secondary conditions would be illogical, given that secondary conditions

may not arise until years after the onset of the original condition. For instance, in the

present case, the Board noted that the evidence suggested that Mr. Ellington did not

2008-7012 10
develop diabetes or hypertension until after the effective date of his primary condition

(leukemia). Ellington I, slip op. at 15. In addition, it is undisputed that Mr. Ellington did

not file a claim for service connection for diabetes and hypertension until September 10,

1998. Accordingly, it would be illogical to award Mr. Ellington an October 31, 1990

effective date for diabetes and hypertension when the evidence indicates that those

conditions did not develop until some later date. Thus, we agree with the Veterans

Court that the effective date for secondary conditions is governed by section 3.400,

which establishes the effective date as the “date of receipt of claim, or [the] date

entitlement arose, whichever is later.” We think this result is consistent with 38 U.S.C.

§ 5110, the statute which governs the effective date of awards. Section 5110(a)

provides generally that “[u]nless specifically provided otherwise in this chapter, the

effective date of an award based on an original claim . . . shall be fixed in accordance

with the facts found, but shall not be earlier than the date of receipt of application

therefor.” The statute contains no exception to this rule for a claim, such as the one

filed in this case, seeking service connection for an alleged secondary condition.

Our view is in accord with the Veterans Court’s Roper decision, which we

affirmed without opinion. See 240 Fed. Appx. at 423. In that case, veteran Benny R.

Roper argued, inter alia, that he was entitled to an increased disability rating for hearing

loss and depression resulting from his service. See generally Roper. Specifically, Mr.

Roper incurred bilateral hearing loss from acoustic trauma caused by friendly gunshot

fire during his service in Korea. Id. at 175. He received service connection for his

hearing loss in November 1970. Id. His hearing worsened over the years, however,

and he eventually developed depression as a consequence. Id. He applied for

2008-7012 11
secondary service connection for the depression, which his RO awarded in April 1999.

Id. The RO determined that Mr. Roper was entitled to a 50% disability rating for the

hearing loss and a 50% disability rating for the depression. Id. Pursuant to a table set

forth at 38 C.F.R. § 4.25, the RO combined these disability ratings to arrive at an overall

disability rating of 80%. Id. Mr. Roper appealed the RO’s decision to combine the

disability ratings to the Board, which affirmed the RO’s determination. Id. at 174.

Mr. Roper appealed the Board’s decision. On appeal, Mr. Roper argued that the

plain meaning of 38 C.F.R. § 3.310(a), dealing with secondary conditions, requires the

VA to “unify” the disability ratings of primary and secondary conditions by adding the

percentages associated with each disability rating. Id. at 177. Thus, he maintained that

he was entitled to a 100% disability rating, the sum of the two 50% disability ratings,

rather than an 80% disability rating prescribed by the table at 38 C.F.R. § 4.25. Id. The

Veterans Court rejected his argument. In so doing, it noted that any application for

disability compensation consists of five elements: “(1) Veteran status; (2) existence of a

disability; (3) a connection between the veteran’s service and the disability; (4) degree

of disability; and (5) effective date of the disability.” Id. at 178. The court concluded that

section 3.310(a) dealt with only one of those five elements, the connection between the

veteran’s service and disability. Id. at 180. Thus, it held that section 3.310(a) did not

address the determination of the degree of disability. Id. at 181. It therefore determined

that that section did not prevent the combining of disability ratings in line with section

4.25. Id.

As noted, Mr. Ellington points to language in Roper stating that the meaning of

38 C.F.R. §3.310 “is and always has been to require VA to afford secondarily service-

2008-7012 12
connected conditions the same treatment (no more or less favorable treatment) as the

underlying service-connected conditions for all determinations.” Id. What Mr. Ellington

overlooks, however, is that the Veterans Court also stated in Roper that it could “find no

evidence, persuasive or otherwise, that section 3.310(a) was intended to govern any

element of disability benefit decisionmaking other than the determination of service

connection.” Id. at 180. We find the reasoning of Roper persuasive. Section 3.310(a)

is concerned only with entitlement to service connection and is silent with respect to the

proper effective date for service connection. See id. Section 3.400, on the other hand,

specifically addresses the proper effective date for claims for benefits; as discussed

above, it provides that an effective date can arise no earlier than the date on which

application for benefits for the condition at issue was made.

We therefore conclude that the Veterans Court properly interpreted 38 C.F.R.

§ 3.400 in light of Roper, and accordingly affirm its decision declining to award Mr.

Ellington an October 31, 1990 effective date for his secondary conditions of diabetes

and hypertension.

III.

Mr. Ellington also contends, in the alternative, that he is entitled to an October 6,

1993 effective date for diabetes and hypertension, arguing that his listing those

symptoms in VA Form 21-2545 qualified as an informal claim for benefits. Specifically,

Mr. Ellington argues that the Veterans Court’s failure to interpret his listing of symptoms

in that form as an informal claim constituted a violation of the requirement that veterans’

applications for benefits be construed generously. See Moody, 360 F.3d at 1310;

Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251

2008-7012 13
F.3d 1378, 1384 (Fed. Cir. 2001). In Roberson, we held that the VA has a duty to fully

develop any filing made by a veteran by determining all potential claims raised by the

evidence. 251 F.3d at 1384. We reiterated this requirement in Szemraj, where we

stated that the VA must generously construe a veteran’s filing to discern all possible

claims raised by the evidence. 357 F.3d at 1373. Finally, in Moody, we held that any

ambiguity in a filing that could be construed as an informal claim must be resolved in the

veteran’s favor. 360 F.3d at 1310. Mr. Ellington maintains that his October 6, 1993

submissions in VA Form 21-2545 were at least ambiguous with respect to whether he

sought service connection for diabetes and hypertension, and that this ambiguity must

be resolved in his favor.

The government counters that we lack jurisdiction to consider Mr. Ellington’s

claim because it requires the application of law to fact. The government argues that the

Veterans Court’s determination of whether Mr. Ellington’s statements in VA Form 21-

2545 constituted an informal claim fundamentally involves an issue of law, i.e. the

requirements of 38 C.F.R. § 3.155(a), applied to fact, i.e. the contents of Mr. Ellington’s

VA Form 21-2545. Alternatively, the government argues that, assuming we have

jurisdiction, we should affirm the Veterans Court’s decision.

We agree with the government that we lack jurisdiction to consider Mr. Ellington’s

claim for entitlement to an October 6, 1993 effective date. In Bonner v. Nicholson, 497

F.3d 1323 (Fed. Cir. 2007), we held that the interpretation of the contents of a claim for

benefits was a factual issue over which we did not have jurisdiction, id. at 1328. In that

case, Elizabeth Bonner, a widow of a veteran, initially reported to the VA generally that

the cause of her husband’s death was “cancer.” Id. at 1324. In due course, an autopsy

2008-7012 14
revealed the exact cause of death to be Hodgkin’s disease, a type of cancer. Id. In

1975, the RO initially denied Mrs. Bonner’s claim for dependency and indemnity

compensation, concluding that no evidence of service connection for the Hodgkin’s

disease existed. Id. Roughly twenty years later, in 1995, Mrs. Bonner obtained an

analysis of cells taken from her husband’s body that indicated that he likely died from

Non-Hodgkin’s lymphoma, a different type of cancer. Id. at 1325. Mrs. Bonner

thereafter applied for service connection for the Non-Hodgkin’s lymphoma, seeking as

an effective date the date of her husband’s death. Id. The RO ultimately awarded

service connection beginning on November 1, 1995, the date the VA received a letter

from Mrs. Bonner reporting Non-Hodgkin’s lymphoma as the cause of her husband’s

death. Id.

Mrs. Bonner appealed the RO’s decision to the Board. Id. at 1326. The Board

concluded that Mrs. Bonner could not obtain benefits dating back to the 1975 date of

her husband’s death because the original denial of benefits was based upon a

purported cause of death, Hodgkin’s disease, which was no longer considered the

actual cause of death. Id. The Veterans Court affirmed the Board’s conclusion, stating:

“[T]he evidence established that Mrs. Bonner’s [1975] claim was one for Hodgkin’s

disease as the cause of her husband’s death, and, therefore, we cannot conclude that

the evidence reasonably raised any claims for [a] cause of death by types of cancer

other than Hodgkin’s disease.” Bonner v. Nicholson, 19 Vet. App. 188, 195 (2005).

Mrs. Bonner appealed the Veterans Court’s decision. On appeal, we held that

we lacked jurisdiction. Bonner, 497 F.3d at 1328. Before us, Mrs. Bonner argued that

the Veterans Court had misapplied Moody by failing to interpret her 1975 claim as an

2008-7012 15
application for service connection for all types of cancer, including Non-Hodgkin’s

lymphoma. Id. We rejected that argument, concluding that “the interpretation of the

1975 claim ‘is essentially a factual inquiry, and it is beyond our jurisdiction to make that

determination.’” Id. (quoting Moody, 360 F.3d at 1310). Indeed, Mrs. Bonner did not

argue that the Board misconstrued Moody or that it failed to consider the case but rather

that the Board misapplied Moody to the facts of her case, an issue of law applied to fact

over which we did not possess jurisdiction. Id.

Similarly, here, Mr. Ellington does not argue that the Veterans Court failed to

consider or misinterpreted Moody, Szemraj, or Roberson. Indeed, Mr. Ellington could

not make such an argument because the Veterans Court explicitly acknowledged its

obligation to “‘sympathetically read’” Mr. Ellington’s claims in light of Moody. Ellington II,

22 Vet. App. at 145. Rather, Mr. Ellington essentially argues that the Veterans Court

improperly concluded that the VA satisfied its duty to sympathetically construe his

claims when it concluded that his statements on VA Form 21-2545 did not raise an

informal claim for benefits. This is indistinguishable from Mrs. Bonner’s argument that

the VA failed to sympathetically construe her claim. Both claims implicate the

application of law to fact, a matter over which we lack jurisdiction. 38 U.S.C.

§ 7292(d)(2); Bonner, 497 F.3d at 1328.

Because we decide that we do not have jurisdiction to consider Mr. Ellington’s

argument that he is entitled to an October 6, 1993 effective date for diabetes and

hypertension, we do not reach the merits of his claim that the Veterans Court

misapplied Moody, Szemraj, and Roberson to the facts of his case.

2008-7012 16
 CONCLUSION

For the foregoing reasons, we agree with the Veterans Court that the effective

date for a secondary condition arises no earlier than the date for which a veteran

applies for service connection for that condition. Accordingly, we affirm the decision of

the Veterans Court affirming the decision of the Board that Mr. Ellington cannot obtain

an October 31, 1990 effective date for his diabetes and hypertension secondary

conditions. We do not consider Mr. Ellington’s alternative claim that, based upon his

completion of VA Form 21-2545, he is entitled to an effective date of October 6, 1993,

for his secondary conditions. That claim involves an application of law to fact and

therefore is beyond our jurisdiction under 38 U.S.C. § 7292(d).

COSTS

Each party shall bear its own costs.

AFFIRMED

2008-7012 17