Case: 19-2421 Document: 24 Page: 1 Filed: 03/23/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMAN A. HARRIS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2421
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3923, Chief Judge Robert N. Da-
vis.
______________________
Decided: March 23, 2020
______________________
NORMAN A. HARRIS, Greenville, IN, pro se.
ANTONIA RAMOS SOARES, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD,
ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK
SCADDEN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
Case: 19-2421 Document: 24 Page: 2 Filed: 03/23/2020
2 HARRIS v. WILKIE
______________________
Before WALLACH, PLAGER, and STOLL, Circuit Judges.
PER CURIAM.
Appellant Norman A. Harris appeals a decision of the
U.S. Court of Appeals for Veterans Claims (“Veterans
Court”), affirming the Board of Veterans’ Appeals’
(“Board”) denial of entitlement to an effective date before
July 29, 2002, for the award of service-connected disability
benefits for Mr. Harris’s skin condition. Harris v. Wilkie,
No. 17-3923, 2019 WL 1995773, at *3–4 (Vet. App. May 7,
2019). Because we lack jurisdiction, we dismiss.
DISCUSSION
I. Standard of Review and Legal Standard
“The jurisdiction of this court to review decisions of the
Veterans Court is limited by statute.” Gazelle v. Shulkin,
868 F.3d 1006, 1009 (Fed. Cir. 2017) (citation omitted). We
may “review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof . . .
and . . . interpret constitutional and statutory provisions,
to the extent presented and necessary to a decision.”
38 U.S.C. § 7292(c) (2012). Absent a constitutional issue,
however, we lack subject matter jurisdiction over “(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.” Id. § 7292(d)(2); see Wanless v. Shinseki, 618 F.3d
1333, 1336 (Fed. Cir. 2010).
II. We Lack Jurisdiction over Mr. Harris’s Appeal
Mr. Harris’s appeal involves neither the interpretation
of a statute or regulation nor a constitutional issue; in-
stead, Mr. Harris raises only issues of fact that we may not
review. See generally Appellant’s Br. First, Mr. Harris
contends that “[t]he Board refused to grant service connec-
tion benefits for his diagnosed skin condition[] effective to
Case: 19-2421 Document: 24 Page: 3 Filed: 03/23/2020
HARRIS v. WILKIE 3
1985 by attempting to discredit [his] evidence[.]” Id. at 3.
Mr. Harris, a U.S. Army veteran who served in Vietnam,
A. App. 87, 1 “suffers from a service-connected skin condi-
tion, characterized as contact dermatitis and a latex al-
lergy,” Harris, 2019 WL 1995773, at *1. On January 24,
1985, a U.S. Department of Veterans Affairs (“VA”) medi-
cal examiner diagnosed Mr. Harris with “[m]aculopapular
exfoliative dermatitis . . . highly suggestive of contact der-
matitis, with a history of allergy to rubber and new plas-
tics . . . , but not related to Agent Orange.” A. App. 87, 89–
90. 2 In 2001, however, a different VA medical examiner
concluded that “Mr. Harris’s skin condition resulted from
exposure to Agent Orange.” Harris v. McDonald, No. 14-
0649, 2015 WL 6087176, at *1 (Vet. App. Oct. 16, 2015).
On July 29, 2002, the VA received a document “indicat[ing]
that [Mr. Harris] wanted to claim service connection for
[his] skin condition . . . as a result of Agent Orange expo-
sure.” In re Harris, No. 07-16 417, slip op. at 12 (Bd. Vet.
App. June 27, 2017). In 2006, the VA regional office
granted Mr. Harris service connection for his skin condi-
tion “with an evaluation of [ten] percent effective July 29,
2002.” A. App. 92; see A. App. 92–94 (Rating Decision). Mr.
Harris appealed to the Board, arguing that two forms com-
pleted during his 1985 VA medical examination consti-
tuted a claim for disability benefits, and thus, the effective
date for his skin condition should be the date of that exam-
ination, i.e., January 24, 1985. Harris, slip op. at 10; see A.
App. 83–91 (1985 Medical Examination Forms). In the de-
cision from which Mr. Harris currently appeals, the Board
found, and the Veterans Court affirmed, that “neither
[form] constitute[d]” a claim for disability benefits, Harris,
1 “A. App.” refers to the Appellee Secretary of Veter-
ans Affairs’ Appendix attached to the response brief.
2 Agent Orange is an “herbicide agent” used during
the Vietnam War. Procopio v. Wilkie, 913 F.3d 1371, 1373
(Fed. Cir. 2019) (en banc).
Case: 19-2421 Document: 24 Page: 4 Filed: 03/23/2020
4 HARRIS v. WILKIE
slip op. at 12, and thus, Mr. Harris was not “[e]ntitle[d] to
an effective date prior to July 29, 2002[,]” id. at 21. To the
extent Mr. Harris seeks review of this finding, it is a factual
determination that cannot be disturbed by this court. See
38 U.S.C. § 7292(d)(2)(A); see also Ellington v. Peake, 541
F.3d 1364, 1371 (Fed. Cir. 2008) (holding that “we lack ju-
risdiction to consider [the veteran’s] claim for entitlement”
to an earlier effective date for his service-connected medi-
cal conditions, as “the interpretation of the contents of a
claim for benefits [i]s a factual issue over which we d[o] not
have jurisdiction”).
Second, Mr. Harris contends that the Veterans Court
erred in affirming the Board’s reliance on Ellington. See
generally Appellant’s Br. Specifically, Mr. Harris argues
that, by relying on Ellington, the Board misapplied the
“standards” set forth in Moody v. Principi, 360 F.3d 1306
(Fed. Cir. 2004), Szemraj v. Principi, 357 F.3d 1370 (Fed.
Cir. 2004), and Roberson v. Principi, 251 F.3d 1378 (Fed.
Cir. 2001), Appellant’s Br. 5–6, which require the VA to
“fully and sympathetically develop the veteran’s claim to
its optimum before deciding it on its merits[,]” Roberson,
251 F.3d at 1383 (internal quotation marks and citation
omitted). As with the veteran in Ellington, however,
Mr. Harris “[can]not argue that the Veterans Court failed
to consider or misinterpreted Moody, Szemraj, or Rob-
erson[,]” as the Veterans Court “explicitly acknowledged
[the] obligation to sympathetically read Mr. [Harris’s]
claims in light of [those cases].” Ellington, 541 F.3d at 1372
(internal quotation marks omitted); see Harris, 2019 WL
1995773, at *3 (explaining that the Board’s findings were
based on a “sympathetic or liberal reading” of the evi-
dence); Harris, 2015 WL 6087176, at *4 (remanding to the
Board for consideration of the evidence in light of Moody,
Szemraj, and Roberson). Rather, Mr. Harris essentially ar-
gues that the Veterans Court erred in concluding that the
Board satisfied its duty to sympathetically construe his
claim when it concluded that his 1985 medical examination
Case: 19-2421 Document: 24 Page: 5 Filed: 03/23/2020
HARRIS v. WILKIE 5
forms did not raise an informal claim for disability benefits,
see, e.g., Appellant’s Br. 5–7, “a matter over which we lack
jurisdiction,” as it “implicate[s] the application of law to
fact,” Ellington, 541 F.3d at 1372; see 38 U.S.C.
§ 7292(d)(2)(B).
Finally, Mr. Harris broadly alleges “violation[s] of [his]
Constitutional Rights for fair and impartial review,” Appel-
lant’s Br. 11, and “due process of law,” id. at 7; see id. at 4,
5. Mr. Harris’s arguments are, however, “constitutional in
name only,” as “he has simply put a [constitutional] label
on his contention” that the Veterans Court erred in affirm-
ing the Board’s reliance on Ellington. Helfer v. West, 174
F.3d 1332, 1335 (Fed. Cir. 1999); see Payne v. McDonald,
587 F. App’x 649, 651 (Fed. Cir. 2014) (“Absent an expla-
nation providing an adequate basis for [the veteran’s]
claims, mere assertions of constitutional violations cannot
invoke our jurisdiction.”). See, e.g., Appellant’s Br. 5 (“The
Veterans Court ha[s] instead affirmed the Board[’s] review
of the evidence of ‘that case[,’] Ellington, introduced by the
Board, without the required standard of review for ‘preju-
dicial error[,’] . . . violating [Mr. Harris’s] due process for
fairness.”). Accordingly, we lack jurisdiction over Mr. Har-
ris’s appeal.
CONCLUSION
We do not have jurisdiction to review this appeal. Ac-
cordingly, Mr. Harris’s appeal from the U.S. Court of Ap-
peals for Veterans Claims is
DISMISSED