Sheldon v. Peake

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2007-7304

FRANK E. SHELDON,

Claimant-Appellant,

v.

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

Respondent-Appellee.

Todd Hettenbach, Wilmer Cutler Pickering Hale and Dorr LLP, of Washington,
DC, argued for claimant-appellant. With him on the brief was Edward C. DuMont. Of
counsel was Barton F. Stichman, National Veterans Legal Services, of Washington, DC.

Tara K. Hogan, 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 Attorney Attorney
General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director.
Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel,
and Ethan G. Kalett, Attorney, United States Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2007-7304

FRANK E. SHELDON,

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 05-0119, Chief
Judge William P. Greene, Jr.

___________________________

DECIDED: June 17, 2008

Before MAYER, SCHALL, and LINN, Circuit Judges.

SCHALL, Circuit Judge.

DECISION

Frank E. Sheldon appeals the final decision of the United States Court of

Appeals for Veterans Claims (“Veterans Court”) which sustained the decision of the

Board of Veterans’ Appeals (“Board”) determining that there was no clear and
unmistakable error (“CUE”) in three separate 1947 Department of Veterans Affairs

(“VA”) regional office (“RO”) decisions. The three decisions denied Mr. Sheldon’s claim

of service connection for disability of the left arm and hand. At the same time, the

Veterans Court dismissed without prejudice for lack of jurisdiction what it described as

Mr. Sheldon’s “CUE motions” regarding the RO’s 1947 application of extant law.

Sheldon v. Peake, No. 05-0119, 2007 WL 1597986, at *3 (May 31, 2007). The result of

the court’s decision was an affirmance of the Board’s decision that Mr. Sheldon was not

entitled to an effective date earlier than April of 2003 for his disability.

On appeal, Mr. Sheldon argues that the Veterans Court erred when it concluded

that the RO decisions were based on a weighing of the facts when, according to Mr.

Sheldon, the relevant facts were “completely one-sided” in his favor. He also argues

that the Veterans Court erred when it dismissed his argument that the 1947 RO

decisions were tainted by CUE because they misapplied extant regulations governing

service connection. Because Mr. Sheldon’s first argument is beyond the scope of our

jurisdiction, we do not consider it. Exercising jurisdiction over his second argument,

however, we conclude that the Veterans Court erred when it dismissed his “CUE

motions.” We therefore reverse the decision of the Veterans Court on that point and

remand the case to the court so that it may consider Mr. Sheldon’s argument that the

1947 RO decisions misapplied extant regulations governing service connection.

DISCUSSION

I.

Our jurisdiction to review decisions of the Veterans Court is limited. Specifically,

absent a constitutional issue, we are without jurisdiction to review a factual

2007-7304 2
determination or an application of law to the facts of a particular case. Moody v.

Principi, 360 F.3d 1306, 1310 (Fed.Cir 2004). It is for this reason that we lack

jurisdiction to consider Mr. Sheldon’s argument that the Veterans Court erred when it

concluded that the 1947 RO decisions were based on a weighing of the facts. As

noted, Mr. Sheldon bases this argument on the contention that there could be no

weighing of the facts because the relevant facts were “completely one-sided” in his

favor. This argument is beyond the scope of our jurisdiction. That is because it plainly

involves a challenge to the factual determinations of the Board, as affirmed by the

Veterans Court. Thus, we may not consider the argument.

II.

Mr. Sheldon also argues on appeal that the Veterans Court erred when it

dismissed for lack of jurisdiction his argument that an April 1947 RO rating decision and

RO decisions in July and December of 1947 confirming the April decision were tainted

by CUE because they misapplied extant regulations governing service connection. Mr.

Sheldon contended before the court that the 1947 decisions were in error because,

instead of following regulations that required him to show that his disability was

“incurred” in service, the RO rejected his claim on the ground that his disability was not

“demonstrated,” or did not manifest itself, during his period of service. As seen, the

Veterans Court described this argument as being embodied in Mr. Sheldon’s “CUE

motions.” This argument we do have jurisdiction to consider. That is because the

argument concerns the Veterans Court’s interpretation of its jurisdictional statute, 38

U.S.C. § 7252(a). Andre v. Principi, 301 F.3d 1354, 1358 (Fed.Cir. 2002). We review

legal issues, including whether the Veterans Court properly declined to exercise

2007-7304 3
jurisdiction under section 7252(a), without deference. Maggitt v. West, 202 F.3d 1370,

1374 (Fed.Cir. 2000).

In dismissing the “CUE motions,” the Veterans Court relied upon Andre. In so

doing, the court stated that Mr. Sheldon’s assertion concerning the extant law in 1947

was an entirely distinct CUE theory from that which was presented to and adjudicated

by the RO and the Board, and that the Board’s decision contained no discussion of the

law of service connection extant at the time of the RO decisions in 1947. Sheldon, 2007

WL 1597986, at *2. In Andre, we noted that, in order for the Veterans Court to review

the denial of a CUE claim, there must be a decision of the Board on the specific CUE

issue. 301 F.3d at 1361. We stated: “[E]ach ‘specific’ assertion of CUE constitutes a

claim that must be the subject of a decision by the [Board] before the Veterans Court

can exercise jurisdiction . . . .” Id.

Having reviewed the record before us, we are unable to say that the Veterans

Court did not have jurisdiction to consider Mr. Sheldon’s argument that there was CUE

in the 1947 RO decisions because they misapplied extant regulations governing service

connection. It is true that, in his submission before the Board, Mr. Sheldon did not

mention the 1947 version of the regulation currently found at 38 C.F.R. § 3.303 or

Veterans Administration Technical Bulletin 8-43, a predecessor to section 3.303.

Nevertheless, we think that the argument he made before the Board (“All the evidence

necessary to grant my claim in 1947 was in the VA claims folder. . . . There was no

plausible basis for the finding that the condition was not service-connected.”)

necessarily was premised upon the long-standing governing principle—stated in the

1947 regulation—that in order to establish service connection for a disability, a veteran

2007-7304 4
had to demonstrate that the disability “was incurred coincident with service in the Armed

Forces.” This, coupled with the Board’s statement that “[a]n April 1947 rating decision

and decisions in July and December 1947 confirming the April 1947 rating decision . . .

were consistent with the law and regulations then in effect,” In re Sheldon, No. 04-31-

092, slip op. at 2 (Bd. Vet. App. Jan. 4, 2005), leads us to conclude that Mr. Sheldon did

not advance a new CUE claim when he argued before the Veterans Court that the 1947

RO decisions were contrary to extant regulations.

III.

For the foregoing reasons, we conclude that the Veterans Court erred in

dismissing without prejudice for lack of jurisdiction what the court described as Mr.

Sheldon’s “CUE motions.” The decision of the court dismissing the “CUE motions” is

therefore reversed. The case is remanded to the court so that it may consider and

adjudicate Mr. Sheldon’s claim that the April, July, and December 1947 RO decisions

were tainted by CUE because they misapplied extant law governing service connection.

2007-7304 5