NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BOB H. SCHELLINGER,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7070
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2254, Judge Alan G. Lance, Sr.
______________________
Decided: October 1, 2015
______________________
BOB H. SCHELLINGER, Putnam, CT, pro se.
PETER ANTHONY GWYNNE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., SCOTT D. AUSTIN; Y. KEN LEE, CHRISTINA
LYNN GREGG, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
2 SCHELLINGER v. MCDONALD
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
NEWMAN, Circuit Judge.
Mr. Bob H. Schellinger appeals the decision of the
United States Court of Appeals for Veterans Claims
(CAVC) affirming the decision of the Board of Veterans’
Appeals that denied an effective date earlier than No-
vember 15, 2007, for the award of service connection for
heart disease, including hypertensive heart disease and
coronary artery disease. Bob H. Schellinger v. Robert A.
McDonald, Sec. of Veterans Affairs, No. 13-2254 (Vet.
App. Jan 16, 2015). The appeal is dismissed, for it raises
only factual questions whose review is not within our
appellate jurisdiction.
BACKGROUND
Mr. Schellinger served in the U.S. Marine Corps from
November 1961 until September 1963. On May 21, 1970,
he filed a claim for compensation, claiming service connec-
tion for “high blood pressure and a skin condition caused
by nerves.” Record before the Agency at 2335. On June
9, 1970, the Department of Veterans Affairs (VA) granted
service connection for the anxiety disorder but denied
service connection for hypertension, concluding that Mr.
Schellinger’s hypertension was caused by obesity and was
not service connected. By statute, a Notice of Disagree-
ment must be filed within one year.
The VA’s records show receipt, on November 15, 2007,
of a copy of a letter dated September 1970, stating Mr.
Schellinger’s disagreement with the denial of his hyper-
tension claim. Part of the debate concerns when this
letter was first sent to the VA. Apparently the letter
whose copy was received on November 15, 2007, did not
receive acknowledgement in 1970. On November 18,
2011, the VA’s Hartford Regional Office granted Mr.
Schellinger service connection “for heart disease to in-
SCHELLINGER v. MCDONALD 3
clude hypertensive heart disease and coronary artery
disease,” and assigned a 100 percent disability rating
with an effective date of November 15, 2007.
On November 5, 2012, Mr. Schellinger challenged the
effective date, citing his letter of September 1970. The
Board issued a decision on July 2, 2013, including finding
of the following facts:
The RO denied the Veteran’s claim for service
connection for hypertension in June 1970; he did
not disagree with this decision; and he has not
claimed it was tainted by clear and unmistakable
error.
A letter dated in September 1970 was initially re-
ceived by VA in November 2007.
The Veteran filed an initial claim for service con-
nection for heart disease in November 2007; noth-
ing in the file could be construed as an earlier
informal claim for service connection for heart dis-
ease.
Bd. Op. at 2. The Board found that “the earliest indication
that the Veteran desired service connection for heart
disease as secondary to his psychiatric disorder was the
November 2007 formal claim for that benefit.” Bd. Op. at
11.
The Board also analyzed whether Schellinger’s several
hospitalizations with the VA starting in 1995, could be
considered an informal claim for service connection for his
hypertension. The Board concluded the hospitalizations
were not an informal claim because his claim for service
connection for hypertension had been “denied outright” in
1970, and medical records may only be used as informal
claims “for increase or to reopen” claims for an “already
service-connected condition.” Id. at 8 (citing 38 C.F.R.
§ 3.157 and King v. Shinseki, 23 Vet. App. 464, 468
(2010)). The Board also concluded that “the simple
4 SCHELLINGER v. MCDONALD
existence of medical records reflecting diagnosis and
treatment of heart disease, without any communication
from Schellinger himself, cannot be construed as an
intention to reopen the prior denial of service connection
for hypertension.” Id. at 9–10.
The Board denied Schellinger’s claim that he was enti-
tled to an effective date earlier than November 15, 2007
for his award of secondary service connection for heart
disease. Id. at 11. Mr. Schellinger appealed to the CAVC.
On March 21, 2014, as an attachment to his informal
brief, Schellinger attached a copy of the September 1,
1970 letter to the Board that, the CAVC observed, “ap-
pears to contain two date stamps.” CAVC Op. 3. One of
the date stamps is May 21, 1970 (the date the original
claim was filed), and the other date stamp is November
15, 2007 (the date a copy of the letter was received by the
VA as contained in the VA’s records).
The CAVC ruled that the Board had correctly denied
an effective date earlier than November 15, 2007. The
CAVC also found that despite the September 1, 1970 date
on the letter, the earliest that the VA received the letter
was November 15, 2007. Applying the presumption of
administrative regularity as discussed in Fithian v.
Shinseki, 24 Vet.App. 146, 151 (2010), the CAVC ruled
that even if Schellinger had sent the letter in 1970, that
would be insufficient to rebut the presumption that the
VA did not receive the letter because the VA is presumed
to have acknowledged or acted in some way on the letter,
had it been received. The CAVC affirmed the Board’s
ruling that no Notice of Disagreement was filed within the
statutory one-year period.
The CAVC also agreed with the Board that nothing in
the record could be construed as an informal claim for
service connection for heart disease prior to the November
15, 2007 letter. Thus the CAVC affirmed that the earliest
SCHELLINGER v. MCDONALD 5
date for which Mr. Schellinger was entitled to service
connection for heart disease was November 15, 2007.
The CAVC ruling was a one-judge decision, as the
court’s rules authorize. Mr. Schellinger moved for recon-
sideration, or for a panel decision. The CAVC granted
the motion for a panel decision. The panel then held that
Mr. Schellinger had not demonstrated that “1) the single-
judge memorandum decision overlooked or misunderstood
a fact or point of law prejudicial to the outcome of the
appeal, 2) there is any conflict with precedential decisions
of the Court, or 3) the appeal otherwise raises an issue
warranting a precedential decision.” CAVC Op. at 1.
On appeal to this court, Mr. Schellinger states that the
law was incorrectly applied in determining whether a
timely Notice of Disagreement was filed.
DISCUSSION
This Court may review a Veterans Court decision on
“all relevant questions of law, including interpreting
constitutional and statutory provisions” and may set aside
any regulation or interpretation thereof that is “(A) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (B) contrary to constitutional
right, power, privilege, or immunity; (C) in excess of
statutory jurisdiction, authority, or limitations, or in
violation of a statutory right; or (D) without observance of
procedure required by law.” 38 U.S.C. § 7292(d)(1).
Except to the extent that an appeal from a CAVC decision
presents a constitutional issue, we “may not review (A) a
challenge to a factual determination, 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); Mayfield, 499 F.3d at 1321.
We recognize that the Appellant is acting pro se. We
apply the principle that “pro se pleadings are to be liberal-
ly construed.” Hughes v. Rowe, 449 U.S. 5, 9–10 (1990);
6 SCHELLINGER v. MCDONALD
Forshey v. Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002)
(en banc).
Mr. Schellinger filed a statement with the court on
September 2, 2015, directing the court to various parts of
the record, and providing five documents as attachments.
We have accepted these materials as a Memorandum in
Lieu of Oral Argument, and observe that the documents
enclosed and referenced were before the VA. These filings
have been duly considered.
The only issue is the factual question of whether a
timely NOD was filed in 1970. Appellant’s Br. at 1. We
discern no basis for reversing the CAVC’s conclusion,
which was based on the presumption of administrative
correctness, and the undisputed finding that Mr. Schel-
linger made no inquiry until 2007.
No constitutional or statutory issues are present.
Since the only issues raised are questions of fact, the
appeal is dismissed.
No costs.
DISMISSED