NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LARRY ELLIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7139
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3182, Judge Margaret C.
Bartley.
______________________
Decided: January 17, 2014
______________________
LARRY ELLIS, of Milwaukee, Wisconsin, pro se.
JEFFREY A. REGNER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director, and
KIRK T. MANHARDT, Assistant Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, and CHRISTINA L. GREGG, Attorney, United
2 ELLIS v. SHINSEKI
States Department of Veterans Affairs, of Washington,
DC. Of counsel was LARA K. EILHARDT, Attorney.
______________________
Before NEWMAN, PROST, and TARANTO, Circuit Judges.
PER CURIAM.
Larry Ellis appeals a decision of the United States
Court of Appeals for Veterans Claims that affirmed an
August 2, 2011 decision of the Board of Veteran’s Appeals.
The affirmed 2011 Board decision had found no clear and
unmistakable error in an earlier Board decision, from
March 5, 1990. Ellis v. Shinseki, No. 11-3182 (Vet. App.
June 12, 2013). Because Mr. Ellis has not presented any
issue that falls within our limited jurisdiction to review
decisions of the Veterans Court, we dismiss the appeal.
BACKGROUND
Mr. Ellis served on active duty in the United States
Army from March 3, 1971, to November 14, 1972, the last
nine months as a military policeman in Vietnam. He
received the Bronze Star Medal, Vietnam Service Medal,
and Vietnam Campaign Medal for his service.
In January 1985, Mr. Ellis filed a claim for post-
traumatic stress disorder (PTSD) based on his service in
Vietnam. The United States Department of Veteran’s
Affairs denied his claim, finding both that PTSD had not
been diagnosed at the time of his service and that there
was no verifiable “stressor” shown in his records. After
Mr. Ellis appealed, the Board remanded his claim for
consideration of additional evidence, including testimony
from Mr. Ellis regarding his traumatic experiences in
Vietnam, testimony from a doctor who had treated Mr.
Ellis for seven months and had diagnosed him with
PTSD, a report from a psychologist who had seen Mr.
Ellis for two months and also diagnosed him with PTSD,
and psychological evaluations by two additional VA
ELLIS v. SHINSEKI 3
psychiatrists who found no evidence of PTSD. In May
1989, the VA confirmed its previous finding that he had
not shown PTSD connected to his service. On March 5,
1990, the Board likewise denied Mr. Ellis’s claim, stating
that “the evidence does not establish that his recollections
are of an intrusiveness characteristic of post-traumatic
stress disorder”; that despite receiving various decora-
tions, Mr. Ellis “received no combat related or valor
awards” and was not otherwise “shown to have been
engaged in or exposed to significant combat or other
catastrophic events”; and that his “disturbing experiences
in Vietnam . . . are not shown to have been of a nature or
magnitude to constitute a stressor.” App. 25-26. Almost a
decade later, Mr. Ellis succeeded in petitioning to reopen
his claim, receiving a finding of service-connected PTSD
effective January 20, 1999.
Yet another decade later, on November 2, 2009, Mr.
Ellis filed a claim alleging that the March 5, 1990 Board
decision contained clear and unmistakable error. He
based his claim on the 1990 Board’s finding that he “re-
ceived no combat related or valor awards” and was not
otherwise “shown to have been engaged in or exposed to
significant combat,” which he contended was clear and
unmistakable error because his Bronze Star Medal proved
that he participated in combat. On August 2, 2011, the
Board found no clear and unmistakable error in the 1990
Board decision. The 2011 Board noted that a Bronze Star
Medal without a “V” device—the medal Mr. Ellis re-
ceived—could be awarded for “achievement or service”
during either war or peace, while a Bronze Star Medal
awarded specifically for valor in combat would include a
“V” device. The 2011 Board concluded that because Mr.
Ellis did not receive a Bronze Star Medal with a “V”
device, reasonable minds could disagree about whether
his medal proved that he participated in combat. The
Board also concluded that, regardless of whether the 1990
Board should have found that Mr. Ellis participated in
4 ELLIS v. SHINSEKI
combat and therefore demonstrated the requisite in-
service stressor, the mistake could not constitute clear
and unmistakable error because it was not the case that
“the result would have been manifestly different but for
the error.” 38 C.F.R. § 20.1403(a). The 2011 Board
reasoned that, because the 1990 Board also found no clear
diagnosis of PTSD at all, even finding that Mr. Ellis had
participated in combat would not have changed the 1990
Board’s decision.
Mr. Ellis appealed the 2011 Board’s finding of no clear
and unmistakable error to the Veterans Court, asserting
again that his Bronze Star Medal is proof of combat
sufficient to establish an in-service stressor, that the 2011
Board improperly substituted its own reasoning for that
expressed in the 1990 Board decision, and that the 2011
Board’s decision was not supported by an adequate
statement of reasons or bases. The Veterans Court af-
firmed the 2011 Board decision. Ellis v. Shinseki, No. 11-
3182 (Vet. App. June 12, 2013). Mr. Ellis now appeals the
Veterans Court’s decision, reiterating his contention that
his service “in a combat zone . . . should have warranted a
[diagnosis] of PTSD” and that “all requirements were met
to determine a diagnosis of PTSD.” Appellant’s Br. ¶¶ 3,
5.
DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is limited. See 38 U.S.C. § 7292. We have
jurisdiction to decide appeals insofar as they challenge a
decision of the Veterans Court with respect to a rule of
law, including the interpretation or validity of any statute
or regulation. Id. § 7292(a), (d)(1). We do not have juris-
diction to review a challenge to a factual determination or
a challenge to a law or regulation as applied to the facts of
a particular case, except to the extent an appeal presents
a constitutional issue. Id. § 7292(d)(2).
ELLIS v. SHINSEKI 5
Mr. Ellis’s appeal does not raise any issue within our
limited jurisdiction. Mr. Ellis concedes in his opening
brief that his appeal does not involve any constitutional
issues. Although he includes a single sentence in his
reply brief asserting that he should be “allowed his Fifth
Amendment Due Process Rights,” this statement is insuf-
ficient to confer jurisdiction. See Helfer v. West, 174 F.3d
1332, 1335 (Fed. Cir. 1999) (appellant’s mere characteri-
zation of the question presented as constitutional in
nature did not confer jurisdiction that the court otherwise
lacked). Similarly, although Mr. Ellis states in his reply
that the Veterans Court “failed to apply statutory regula-
tions as defined in 38 U.S.C.,” he does not identify any
statute or regulation that the Veterans Court failed to
apply, much less misinterpreted.
Mr. Ellis contends that the Veterans Court incorrectly
resolved factual issues concerning his alleged in-service
stressor and his disputed diagnosis of PTSD. He also
states that 38 C.F.R. § 3.304(f) “should apply to this case,”
but he does not identify any legal error in the Veterans
Court’s analysis of that regulation. Because Mr. Ellis’s
appeal challenges only factual determinations and the
application of the relevant regulations to the facts of his
particular case, which are matters outside our jurisdic-
tion, we are without power to hear his appeal.
No costs.
DISMISSED