NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
Is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-7083
HENRY L. KINCE,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED June 9, 2005
___________________________
Before RADER, GAJARSA, and DYK, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims (Veterans Court)
affirmed the Board of Veterans’ Appeals’ (Board) determination of no clear and
unmistakable error (CUE) in a 1973 decision denying Henry L. Kince a service
connection for a knee disorder. Kince v. Principi, No. 01-653 (Vet. App. Oct. 14, 2004).
The Veterans Court also determined that Mr. Kince affirmatively withdrew his pending
petitions for review with the Board in 1990. Id. Because Mr. Kince’s claim of CUE does
not challenge the validity of any rule of law or the validity or interpretation of any statute
or regulation relied upon by the Veterans Court, this court dismisses that claim for lack
of jurisdiction. Because the Board did not misapply any law or regulation or violate the
Constitution in accepting Mr. Kince’s written withdrawal of his pending petitions for
review by the Board, the dismissal of those claims is affirmed.
I
Mr. Kince served in the United States Air Force from 1966 to 1970 as an operator
of heavy equipment. Mr. Kince was diagnosed with a congenital knee disorder two
years after his service ended. He filed a petition for service connection for his knee
problem. The Board denied that petition in 1973. The Board reasoned that the knee
problem had been diagnosed two years after his release from service, that Mr. Kince’s
service record showed no history of a knee injury, and that the knee condition had no
relation to Mr. Kince’s service-connected back disorder.
On December 19, 1988, Mr. Kince requested increased disability evaluations
stating that his other service-connected disorders had worsened. The Board denied this
request on March 31, 1989. Mr. Kince then sent a letter of disagreement in June or July
of 1989. In August of the same year, the Board confirmed its denial of service
connection for the knee disorder. The Regional Office sent Mr. Kince a statement of the
case outlining the decisions regarding the knee disorder and the denial of increased
disability evaluations.
In October 1989, Mr. Kince received a medical examination for one of his
service-related disorders, a skin condition, which was one of the issues for which he
had requested an increased disability rating. In December 1989, Mr. Kince’s
representative notified the Regional Officer that Mr. Kince would accept a 10% disability
rating for the skin condition as satisfying his claim. In January of 1990, the Regional
Officer notified Mr. Kince that he would receive the 10% rating for the skin condition and
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requested his written acceptance of the rating along with confirmation that he would be
withdrawing his appeal to the Board regarding the skin condition. Mr. Kince sent a letter
accepting the 10% rating and affirmatively discontinuing his appeal on the skin disorder.
At the same time, he stated that he was also discontinuing his appeal to the Board on
his back and knee disorders. Mr. Kince indicated that he would resubmit the back and
knee claims after obtaining further documentation.
In April 1990, the Regional Officer sent a letter to Mr. Kince requesting that he
notify them if he was not satisfied with his benefits. Mr. Kince replied again by letter
accepting his current disability rating and stating that he was discontinuing his claims on
appeal to the Board.
In May 1996, the Regional Officer notified Mr. Kince that the March 1989
confirmation of denial of increased disability ratings left no open claims before the
Board. Mr. Kince, however, appealed that determination. In March 2001, the Board
concluded that Mr. Kince had already affirmatively withdrawn his pending claims with
the letters he had written to the Regional Officer. The Board further concluded that Mr.
Kince had not shown that the 1973 Board decision denying him service connection for
his knee disorder was the result of CUE. The Veterans Court affirmed the Board’s
decisions on October 14, 2004. Mr. Kince appeals.
II
This court has jurisdiction to review Veterans Court’s decisions to determine if
any regulation or interpretation thereof relied upon by the Veterans Court was 1)
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2)
contrary to constitutional right, power, privilege, or immunity; 3) outside the Veterans
05-7083 3
Court’s jurisdiction or a violation of statutory right; or 4) not in accordance with the
required procedure. Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000); 38 U.S.C.
§ 7292(d)(1). This court does not have jurisdiction to review a Veterans Court’s
decision as to 1) a challenge to a factual determination or, 2) a challenge to a law or
regulation as applied to the facts of a specific case. 38 U.S.C. § 7292 (d)(2).
On appeal, Mr. Kince argues first that there was evidence of CUE in his 1973
board decision refusing service connection for a knee condition. Specifically, he argues
that if his medical records had been analyzed correctly then the Board and the Veterans
Court would have come to a different conclusion as to his service connection regarding
the knee disorder. Mr. Kince does not challenge the validity of the laws governing CUE
or any other laws relied upon by the Veterans Court in denying his claim of CUE. Nor
does he argue that procedures and regulations were not properly followed. Mr. Kince
argues that he has not received due process under the Constitution on his petition for
service connection for his knee disorder, but he does not support this contention with
any facts or argument. Consequently, Mr. Kince has not raised a Constitutional issue
regarding his claim of CUE. See Helfer v .West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)
(finding no jurisdiction to review claim that was “constitutional in name only”). Because
Mr. Kince’s arguments on appeal regarding his CUE claim rely solely on interpretation
of his medical records, an issue of fact, this court lacks jurisdiction to address Mr.
Kince’s appeal of the Veterans Court’s denial of his claim for CUE.
Mr. Kince’s second argument on appeal is that the Veterans Court misapplied the
pertinent regulations and denied him due process by “permit[ting] a veteran to sign a
document waving his rights to further appeal his claim.” (Appellant’s Reply Br. at 1.)
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However, 38 C.F.R § 19.125(b)&(c) expressly allow a claimant to withdraw a
substantive appeal in writing at any time before the Board issues a decision. The Board
did not misapply these regulations by allowing Mr. Kince to exercise his right to
withdraw his petitions for appeal. Mr. Kince’s voluntary withdrawal of his appeal also
does not violate due process. Consequently, this court affirms Mr. Kince’s voluntary
withdrawal of his pending petitions for review before the Board.
III
Because Mr. Kince relies solely upon factual arguments regarding the appeal of
his claim for CUE in connection with his knee disorder, this court dismisses that claim
for lack of jurisdiction. Because the Board properly applied 38 C.F.R. § 19.125(b)&(c) in
allowing Mr. Kince to withdraw his pending petitions for review by the Board, the
dismissal of those claims is affirmed.
05-7083 5