NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JERRY C. HULSEY,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7112
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-642, Judge Coral Wong Pi-
etsch.
______________________
Decided: August 12, 2015
______________________
JERRY C. HULSEY, Talisay City, Philippines, pro se.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
STEVEN J. GILLINGHAM; TRACEY PARKER WARREN, DAVID J.
BARRANS, CHRISTINA LYNN GREGG, Office of General
2 HULSEY v. MCDONALD
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
Before PROST, Chief Judge, LOURIE and LINN, Circuit
Judges.
PER CURIAM.
Jerry C. Hulsey (“Hulsey”) appeals from the decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“Board”) that denied entitlement to an
effective date prior to December 26, 1996, for service
connection for bronchial asthma with chronic bronchitis
and bronchiectasis and sinusitis. See Hulsey v. McDon-
ald, No. 11-642, 2013 WL 5422976 (Vet. App. Sept. 30,
2013) (“Opinion”). Because Hulsey’s arguments challenge
only factual findings and an application of law to fact, we
dismiss for lack of jurisdiction.
BACKGROUND
Hulsey served on active duty in the Marines from
April to December 1969. In January 1970, Hulsey filed a
claim for Department of Veterans Affairs (“VA”) benefits
for chronic bronchitis with left lower lobe pneumonitis
and an ear condition. In May 1970, a VA Regional Office
(“RO”) granted entitlement to VA benefits for chronic
bronchitis with left lower lobe pneumonitis and assigned
a 30 percent disability rating, effective December 2, 1969.
The RO also granted entitlement to VA benefits for sinus-
itis and assigned a noncompensable rating, effective
December 2, 1969. The RO informed Hulsey of its deci-
sion in a letter in June 1970, but Hulsey did not file a
Notice of Disagreement.
That same month, Hulsey filed another claim for ben-
efits for chronic bronchitis, and the VA requested that
Hulsey undergo an examination. In December 1970, the
HULSEY v. MCDONALD 3
VA received a medical report from a private physician
noting that Hulsey’s lungs were clear. In January 1971,
Hulsey underwent a VA medical examination wherein he
reported experiencing a cough and shortness of breath. In
March 1971, the RO informed Hulsey that the new medi-
cal evidence did not establish entitlement to a disability
rating in excess of 30 percent for chronic bronchitis with
left lower lobe pneumonitis. Hulsey did not file a Notice
of Disagreement in response to the March 1971 decision.
In December 1996, Hulsey request an increased disa-
bility rating for his service-connected “lung condition.” Id.
at *2. The RO denied entitlement to increased ratings for
chronic bronchitis and sinusitis in November 1997, and
Hulsey appealed from the denial.
In January 2001, Hulsey underwent a VA examina-
tion of his nose, sinus, larynx, and pharynx, and later that
year, the RO granted a 100 percent disability rating for
bronchial asthma with chronic bronchitis and bronchiec-
tasis, effective December 26, 1996. Hulsey filed a Notice
of Disagreement as to the effective date and again ap-
pealed to the Board.
In July 2004, the RO increased Hulsey’s disability rat-
ing for sinusitis to 30 percent, effective December 26,
1996. Hulsey again appealed the effective date to the
Board, which remanded the case to obtain additional
records after 1970.
In October 2009, the Board denied entitlement to ef-
fective dates prior to December 26, 1996, for a 100 percent
disability rating for bronchial asthma with chronic bron-
chitis and bronchiectasis and for a 30 percent disability
rating for sinusitis. The Board found that Hulsey raised
several contentions regarding clear and unmistakable
error (“CUE”) in the 1970 and 1971 RO decisions, but the
Board found that those issues had not been adjudicated
by the RO and were not properly before the Board. The
Board then noted that Hulsey had failed to appeal the
4 HULSEY v. MCDONALD
1970 and 1971 RO decisions and found that those deci-
sions had become final. The Board concluded that De-
cember 26, 1996, was the earliest effective date for his
increased ratings.
Hulsey then appealed to the Veterans Court, arguing
that the 1970 and 1971 RO decisions contain CUE and
were not final decisions. In a single-judge decision, the
Veterans Court affirmed the Board decision. Id. at *1.
The court first noted that Hulsey made numerous argu-
ments concerning claims for benefits for a foot condition
and an acquired psychiatric disorder, but the court con-
cluded that those matters were not before the court. Id.
at *3. The court then found that Hulsey’s CUE argu-
ments were being raised for the first time on appeal, and
as a result, the court did not have jurisdiction to consider
Hulsey’s new allegations of CUE. Id. With respect to the
finality of the 1970 and 1971 RO decisions, the court
found that Hulsey, by his own admission, had failed to file
Notices of Disagreement, and those decisions had become
final. Id. The court noted that Hulsey’s finality argu-
ments were “an attempt to collaterally attack” the 1970
and 1971 decisions, and the court repeated that it would
not consider challenges to those decisions on the basis of
CUE. Id. at *4.
In February 2014, Hulsey sought panel review of the
single-judge decision, and the panel granted Hulsey’s
motion and adopted the single-judge decision as the
decision of the panel. See Hulsey v. McDonald, No.
11-642, 2014 WL 718555 (Vet. App. Feb. 26, 2014). The
Veterans Court later denied Hulsey’s subsequent motion
for reconsideration by the panel and his motion for review
by the full Veterans Court. See Hulsey v. McDonald, No.
11-642, 2014 WL 2112044 (Vet. App. May 16, 2014).
Hulsey then appealed to this court seeking to invoke
our jurisdiction under 38 U.S.C. § 7292.
HULSEY v. MCDONALD 5
DISCUSSION
The scope of our review in an appeal from a Veterans
Court decision is limited. We may review a Veterans
Court decision with respect to the validity of a decision on
a rule of law or the validity or interpretation of any stat-
ute or regulation that was relied upon by the Veterans
Court in making the decision. 38 U.S.C. § 7292(a). We
may also review a Veterans Court decision with respect to
legal questions raised in an appeal that challenge the
Veterans Court’s denial of a petition for a writ of manda-
mus. Lamb v. Principi, 284 F.3d 1378, 1381–82 (Fed. Cir.
2002). Except with respect to constitutional issues, we
“may not review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
Hulsey challenges (1) the correctness of the 1996 ef-
fective date for his VA benefits; (2) the Veterans Court’s
determination that the 1970 and 1971 RO decisions had
become final; and (3) the Veterans Court’s conclusion that
certain claims were not before the Veterans Court. How-
ever, those arguments challenge only the Veterans
Court’s fact-finding and application of law to the facts of
Hulsey’s case, which are matters outside of our jurisdic-
tion. See id.; see also Conway v. Principi, 353 F.3d 1369,
1372 (Fed. Cir. 2004) (“[W]hile we can review questions of
law, we cannot review applications of law to fact.”). Here,
the Veterans Court decision did not involve any questions
regarding the validity or interpretation of a statute or
regulation. Rather, the Veterans Court merely applied
established law to the facts of Hulsey’s case. See Opinion,
at *3–5.
Hulsey further alleges constitutional violations in his
brief, including challenging the Veterans Court proce-
dures for panel review and motions for reconsideration.
Appellant’s Br. 8, 48–51. However, the Veterans Court
did not address any constitutional issues in its decision,
6 HULSEY v. MCDONALD
and Hulsey fails to cite any substantive legal or constitu-
tional provisions. Without an explanation providing an
adequate basis for Hulsey’s claims, they are constitutional
claims in name only and thus outside of our jurisdiction.
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)
(Characterization of an appeal as “constitutional in na-
ture does not confer upon us jurisdiction that we other-
wise lack.”).
We have considered the additional arguments pre-
sented in Hulsey’s appeal brief but do not find them
persuasive. Hulsey raises neither a substantial constitu-
tional issue nor other legal question. For the foregoing
reasons, the appeal is dismissed for lack of jurisdiction.
DISMISSED
COSTS
No costs.