NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-7104
DAVID O. KEEL,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
David O. Keel, of Hyrum, Utah, pro se.
David Hibey, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With him
on the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Bryant G. Snee, Assistant Director. Of counsel on the brief were David J.
Barrans, 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
Judge Mary J. Schoelen
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
07-7104
DAVID O. KEEL,
Claimant-Appellant,
v.
R. JAMES NICHOLSON,
Secretary of Veterans Affairs,
Respondent-Appellee.
____________________
DECIDED: July 12, 2007
____________________
Before MICHEL, Chief Judge, LOURIE, Circuit Judge, and ROBERTSON, District
Judge. ∗
PER CURIAM.
David O. Keel appeals from an order of the United States Court of Appeals for
Veterans Claims (the “Veterans Court”) affirming the decision of the Board of Veterans’
Appeals (the “Board”) that denied his claims to reopen previously denied claims for
service-connected disability compensation and denied his new claims for service-
connected disability compensation. Keel v. Nicholson, No. 04-1613 (Vet. App. Sept. 19,
2006). Because Keel only challenges factual determinations on appeal, we dismiss for
lack of jurisdiction.
∗
Honorable James Robertson, District Judge, United States District Court
for the District of Columbia, sitting by designation.
BACKGROUND
Keel served on active duty in the United States Army from May to December
1980. In 1981, he filed several claims for service-connected disability compensation for
various conditions such as a hip injury, a back injury, and a broken nose. In December
1981, the VA Regional Office (“RO”) denied service-connected disability compensation
for those conditions. In 1998, Keel sought to reopen his claims, but the RO denied his
request. In 2001 and 2002, Keel again attempted to reopen his previously denied
claims and also filed new claims for service-connected disability compensation. The
RO denied all the claims.
On August 27, 2004, the Board denied his attempts to reopen the previously
denied claims and denied his new claims. The Board also addressed Keel’s contention
that certain post-service VA medical records existed, but that the VA had not obtained
them. The Board observed that while those records reflect treatment for a seizure that
Keel suffered, Keel had already admitted that he suffered a head injury post-service.
Because Keel did not allege that a head injury or seizure occurred during service, the
Board noted that any records pertaining to a post-service head injury would be
irrelevant to a claim for a service-connected disability. In any event, the Board noted
that the VA records were requested and obtained.
On September 16, 2006, the Veterans Court affirmed the decision of the Board.
The Veterans Court rejected Keel’s argument that he was discharged from service in
1986 and concluded that the record established that he was discharged in December
1980. The court therefore determined that Keel was only entitled to service-connected
disability compensation for conditions incurred during his period of active duty through
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1980. The Veterans Court also considered and denied two procedural motions,
including Keel’s motion to strike the VA’s citation to his DD Form 214, a form that states
that he was discharged in 1980 under honorable conditions, and his motion to
supplement the record with a letter dated subsequent to the Board’s decision.
Keel timely appealed, and we have jurisdiction, if at all, pursuant to 38 U.S.C.
§ 7292(a).
DISCUSSION
The scope of our review of a Veterans Court decision is limited by statute. 38
U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court with
respect to the validity of “any statute or regulation . . . or any interpretation thereof (other
than a determination as to a factual matter) that was relied on by the [Veterans] Court in
making the decision.” 38 U.S.C. 7292(a). Unless there is a constitutional issue
presented, we may not review challenges to factual determinations or to applications of
law to facts. 38 U.S.C. 7292(d)(2).
On appeal, Keel first states that the Veterans Court decision involved the validity
or interpretation of “Rule 35, 36,” although he does not provide further detail. Keel also
takes issue with the facts in DD Form 214, which states that he was honorably
discharged in December 1980, and argues that he was only released from active duty,
not discharged. Keel further argues that he was discharged in January 1986, not 1980,
as the Board and the Veterans Court determined. Keel also contends that his medical
records remained in Boise and that the VA knew of these records but refused to
consider them or turn them over to the Board.
07-7104 3
The government responds that Keel is challenging factual determinations, which
this court lacks jurisdiction to review. The government states that Keel’s reference to
Rules 35 and 36 most likely refers to the Veterans Court’s Rules of Practice and
Procedure (“P&P”), and that with regard to P&P Rule 36, which pertains to entry of a
judgment, there is no indication that the Veterans Court should not have entered
judgment. The government further responds that the Board correctly determined that
Keel was honorably discharged in 1980 and thus correctly denied Keel’s motion to strike
any reference to his DD Form 214, which stated that he was honorably discharged then
and which the VA relied on to describe the nature of Keel’s service. Moreover, to the
extent that Keel is challenging a procedural ruling, the government notes that such a
review is beyond the scope of this court’s jurisdiction. The government finally responds
that Keel’s other arguments relate to challenges to factual findings, and those
challenges are also beyond this court’s jurisdiction.
We agree with the government and conclude that we lack jurisdiction to decide
this appeal. As stated above, under 38 U.S.C. § 7292(d)(2), this court may not review a
challenge to a factual determination or a challenge to a law or regulation as applied to
the facts of a particular case. When asked in the informal brief form whether the
decision of the Veterans Court involved the validity or interpretation of a statute or
regulation, Keel checked the “yes” box and wrote “Rules 35, 36.” In the judgment form,
the court stated that it “has issued a decision in this case, and has acted on a motion
under Rule 35 of the Court’s Rules of Practice and Procedure. Under Rule 36,
judgment is entered on this date.” P&P Rule 35 is entitled “Motions for Reconsideration,
or for a Decision by a Panel or by the Full Court,” and P&P Rule 36 is entitled “Entry of
07-7104 4
Judgment.” It appears that, having seen Rules 35 and 36 mentioned in the judgment
form, Keel’s statement that he is challenging “Rules 35, 36” means he is generally
contesting the decision of the Veterans Court, rather than the court’s interpretation of a
particular statute or regulation. Thus, we do not find that Keel’s appeal involves a
challenge to the court’s interpretation of a statute or regulation.
Keel specifically challenges the contents of DD Form 214 including whether he
was in fact “honorably discharged” and whether that occurred in 1980. Those are
factual determinations that we lack the power to review. Keel further argues that
medical records existed but were not obtained by the VA. He also alleges that the VA
tampered with those records. Those arguments also involve challenges to factual
matters that we cannot review. Because Keel only challenges the Board’s factual
determinations and we lack jurisdiction to review them, his appeal is dismissed.
07-7104 5