NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7293
WILLIAM A. ERNE,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.
Dawn S. Conrad, Trial 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 R. McLenachen, Deputy Assistant General Counsel,
and Tracey P. Warren, Attorney, 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 Lawrence B. Hagel
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7293
WILLIAM A. ERNE,
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 05-1745, Judge
Lawrence B. Hagel.
___________________________
DECIDED: July 3, 2008
___________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.
PER CURIAM.
The United States Court of Appeals for Veterans Claims (Veterans Court) upheld
the denial of an effective date earlier than April 11, 1990, for Mr. Erne’s 100% disability
rating for his service-connected post-traumatic stress disorder (PTSD) and for alcohol
abuse and personality disorder secondary to his PTSD. Further, the Veterans Court
upheld the denial of Mr. Erne’s claim for a rating of total disability based on individual
unemployability before April 11, 1990. Because Mr. Erne seeks review of factual
issues, this case falls outside this court’s jurisdiction. This court therefore dismisses.
I
Mr. Erne served in the U.S. Army from July 1968 to January 1973. In 1987, the
Department of Veterans Affairs (VA) regional office (RO) awarded Mr. Erne service
connection for PTSD, and assigned an initial rating of 50% disability, effective February
21, 1985. Mr. Erne filed a Notice of Disagreement. The RO subsequently reduced the
disability rating from 50 to 30%. Mr. Erne appealed to the Board of Veterans’ Appeals
(the Board), seeking a higher rating and an earlier effective date. In his October 1989
correspondence submitted in support of his appeal, Mr. Erne argued that he was
entitled to a total disability rating. On December 6, 1989, the Board restored Mr. Erne’s
disability rating to 50% but denied an effective date before February 21, 1985.
On April 11, 1990, Mr. Erne was hospitalized for his service-connected PTSD.
The RO treated the VA medical record as an informal claim for an increased rating. The
RO denied the claim on July 23, 1990. Mr. Erne appealed to the Board, and then to the
Veterans Court. The matter was remanded to the Board, and then in turn, to the RO. In
November 1994, the RO awarded Mr. Erne service-connection for alcohol abuse and
personality disorder secondary to PTSD and assigned a 100% disability rating, effective
April 11, 1990. Mr. Erne appealed to the Board, seeking an earlier effective date.
In March 1998, the Board denied an effective date earlier than April 11, 1990, for
the total rating. Mr. Erne appealed to the Veterans Court. While that appeal was
pending, on March 24, 2000, the Board denied an effective date earlier than April 11,
1990 for service-connection for alcohol abuse secondary to his PTSD. Mr. Erne also
appealed this decision to the Veterans Court. Because the issues in both appeals were
intertwined, the Veterans Court consolidated the appeals and remanded to the Board
2007-7293 2
upon the joint motion of the parties to assess the impact, if any, of the Veterans Claims
Assistance Act of 2000.
On February 6, 2002, the Board again denied Mr. Erne’s request for an earlier
effective date. Mr. Erne appealed the Board’s decision to the Veterans Court. On
December 10, 2002, the Veterans Court granted the motion for remand to the Board.
The Board remanded Mr. Erne’s claims to the RO on July 14, 2003.
In August 2004, the RO found clear and unmistakable error (CUE) on the basis
that Mr. Erne’s October 1989 correspondence to the Board should have been treated as
an informal claim for an increased disability rating. The RO assigned a 100% disability
rating for service-connected PTSD with alcohol abuse and personality disorder, with an
effective date of October 12, 1989. Mr. Erne appealed to the Board, seeking an earlier
effective date.
In its March 2005 decision, the Board disagreed with the RO. The Board held
that the August 2004 RO decision was an improper revision of the Board’s final
December 1989 decision because the RO does not have the authority to review and
revise Board determinations. The Board then denied an effective date earlier than April
11, 1990, for all of Mr. Erne’s claims. Mr. Erne appealed to the Veterans Court.
On May 29, 2007, the Veterans Court affirmed the Board’s March 2005 decision,
reviewing the Board’s factual determinations for clear error. Mr. Erne timely appealed to
this court. Mr. Erne submits that the August 2004 RO decision finding CUE was in
reference to its own 1994 decision, not the Board’s December 1989 decision.
2007-7293 3
II
This court has limited jurisdiction to review the decisions of the Veterans Court.
38 U.S.C. §7292. In the absence of a constitutional issue, 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 particular case.” 38 U.S.C. § 7292(d)(2); Buchanan v.
Nicholson, 451 F.3d 1331, 1334 (Fed. Cir. 2006).
Mr. Erne argues that this court has jurisdiction under 38 U.S.C. § 7292(a), as
interpreted by this court’s precedent in Morgan v. Principi, 327 F.3d 1357 (Fed. Cir.
2003), because the Veterans Court’s decision was a “decision . . . on a rule of law.” 1
This argument lacks merit. The Veterans Court’s decision on appeal was not a
“decision . . . on a rule of law.” As Mr. Erne concedes, the Veterans Court correctly
understood the rule in Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). Because Mr.
Erne is not challenging the Veterans Court’s interpretation or understanding of any rule
of law, Congress’ limited additional grant of jurisdiction under 38 U.S.C. § 7292(a) does
not encompass this appeal.
Further, this court lacks jurisdiction to review the Veterans Court’s factual
determination with respect to an earlier effective date for benefits or to review the
Veterans Court’s application of law in its decision to uphold the April 11, 1990 effective
date.
For these reasons, this appeal is dismissed for lack of jurisdiction.
1
Congress expanded this court’s jurisdiction in 2002, amending § 7292(a) to provide
that any party to a case before the Court of Appeals for Veterans Claims “may obtain a
review of the decision with respect to the validity of a decision of the Court on a rule of
law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on
by the Court in making the decision.” § 7292(a).
2007-7293 4
DISMISSED
COSTS
Each party shall bear its own costs.
2007-7293 5