Case: 19-2448 Document: 34 Page: 1 Filed: 01/15/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CORY D. BECK,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2448
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-732, Judge Amanda L. Mere-
dith.
______________________
Decided: January 15, 2021
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, BRANDON A.
Case: 19-2448 Document: 34 Page: 2 Filed: 01/15/2021
2 BECK v. WILKIE
JONAS, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Before TARANTO, BRYSON, and HUGHES, Circuit Judges.
PER CURIAM.
Appellant Cory D. Beck challenges the decision of the
Court of Appeals for Veterans Claims (“the Veterans
Court”), which rejected his claim that the Board of Veter-
ans’ Appeals committed clear and unmistakable error
when it denied his claim to benefits in 1989. We dismiss
the appeal for lack of jurisdiction.
I
Mr. Beck asks this court to interpret 38 U.S.C.
§ 1112(a)(1), a statute favorable to veterans in certain vet-
eran benefits cases. 1 For purposes of establishing a vet-
eran’s entitlement to benefits for a service-connected injury
or disease, section 1112(a)(1) creates a presumption of ser-
vice connection in certain cases based on evidence of post-
service disease. Specifically, section 1112(a)(1) provides
that if a chronic disease becomes “manifest to a degree of
10 percent or more within one year from the date of sepa-
ration,” the disease will be regarded as incurred in or ag-
gravated by the veteran’s service, even if there is no
medical record of the disease during the period of service.
Section 1112(a)(1) provides that the presumption is “sub-
ject to section 1113.” Section 1113 provides, inter alia, that
“[w]here there is affirmative evidence to the contrary,”
1 At the time of Mr. Beck’s original claim at issue in
this case, the statute was codified as 38 U.S.C. § 312(a)(1).
It has been recodified as 38 U.S.C. § 1112(a)(1). For sim-
plicity, we refer to the statute by its current designation.
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BECK v. WILKIE 3
service-connection pursuant to section 1112 “will not be in
order.” Id. § 1113(a).
Mr. Beck does not dispute that the presumption set out
in section 1112 can be rebutted by contrary evidence under
section 1113. His argument regarding the proper interpre-
tation of section 1112 is that if the veteran introduces any
evidence that a chronic disease covered by section 1112 is
manifest to a degree of 10 percent or more within one year
from the date of the veteran’s separation from service, the
presumption of section 1112 is triggered even if there is
conflicting evidence, including a contradictory diagnosis.
The government argues that Mr. Beck’s interpretation of
section 1112 is erroneous. Citing Madden v. Gober, 125
F.3d 1477 (Fed. Cir. 1997), the government contends that
the section 1112 presumption of service connection does not
apply if the Board concludes from conflicting evidence that
the disease did not become manifest to a degree of 10 per-
cent or more within a year of the veteran’s separation.
II
Mr. Beck served on active duty in the United States
Navy from February 1977 to April 1978. Shortly after his
separation from service, he was hospitalized for six weeks
with a diagnosis of paranoid schizophrenia. He was subse-
quently transferred to a Veterans Administration hospital,
where he was diagnosed with drug abuse and an antisocial
personality, not schizophrenia. Two years later, Mr. Beck
was again hospitalized, this time with a diagnosis of explo-
sive personality.
In 1987, Mr. Beck filed a claim for veterans’ benefits,
alleging service-connected “aggravation of psychosis.” A
regional office of the Veterans Administration denied his
claim, finding that there was no objective evidence that Mr.
Beck suffered from chronic psychosis, either in service or
within one year from his separation from service.
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4 BECK v. WILKIE
On appeal, the Board of Veterans’ Appeals acknowl-
edged that a chronic disease will be presumed to have been
incurred in service if it becomes manifest to a degree of 10%
within one year of the veteran’s discharge, even if there is
no evidence of the disease during service. The Board noted,
however, that the evidence as to Mr. Beck’s disease was
mixed. The Board pointed out that although Mr. Beck was
diagnosed with paranoid schizophrenia at one hospital,
that diagnosis “was not substantiated, and it was not, in
fact, until early 1987 that any emotional difficulties previ-
ously experienced by the veteran could reasonably be per-
ceived as having achieved the proportions of an acquired
psychiatric disorder.” Accordingly, in January 1989, the
Board concluded that there was “a distinct absence of in-
formation sufficiently supportive of the requisite diagnosis
within a period sufficiently proximate to service” and that
schizophrenia therefore could not be presumed to have
been incurred in service.
Mr. Beck sought to reopen his claim in 2012. A medical
examination report at that time concluded that he was suf-
fering from schizophrenia and expressed the opinion that
the condition was related to his period of service between
1977 and 1978. Following that report, a regional office of
the Department of Veterans Affairs granted Mr. Beck’s
claim in August 2012. The regional office assigned him a
100% disability rating as of January 10, 2012, the date of
his request for reopening. That decision was not appealed
and became final.
In 2014, Mr. Beck sought revision of the 1989 Board’s
decision, claiming that it contained clear and unmistakable
error (“CUE”). He argued that in light of his diagnosis of
schizophrenia in 1978, which occurred within one year of
his separation from service, the Board should have
awarded him service-connected compensation effective as
of the day after his discharge. In October 2017, the Board
rejected Mr. Beck’s CUE claim. It noted that the 1989
Board’s decision considered his April 1978 diagnosis of
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BECK v. WILKIE 5
schizophrenia, but took into account contrary evidence, in-
cluding his diagnosis of drug abuse and antisocial behavior,
his diagnosis of explosive personality, and an assessment
that he was suffering from a personality disturbance des-
ignated as drug addiction. The 2017 Board therefore con-
cluded that Mr. Beck’s challenge to the 1989 Board’s
decision denying the presumption of service connection was
merely “a disagreement with how the facts were weighed.”
Because a “disagreement as to the weight that should have
been afforded the evidence does not rise to the level of
CUE,” the 2017 Board denied the motion to reverse the
1989 Board’s decision on the ground of CUE.
On appeal to the Veterans Court, Mr. Beck argued that
the presumption of service connection under section 1112
applies so long as there is some evidence that a qualifying
disease manifested to the requisite degree within the one-
year period after separation, even if other evidence indi-
cates the contrary. For that reason, he argued, the 2017
Board should have found that the 1989 Board committed
CUE when it found that, on balance, the evidence had not
shown that Mr. Beck was suffering from schizophrenia
within a year of his separation from service.
The Veterans Court found it unnecessary to address
the proper interpretation of section 1112. Instead, it held
that “even assuming that the Board in 2017 erred as a mat-
ter of law in concluding that the Board in 1989 was not re-
quired to find that the presumption of service connection
under section 1112 attached,” the error was harmless. The
court explained that the 2017 Board’s refusal to apply the
presumption did not affect the essential fairness of the
1989 adjudication or the 2017 Board’s determination that
the 1989 Board’s decision did not contain CUE.
The court explained that because the presumption set
forth in section 1112(a)(1) is rebuttable, as section 1113(a)
provides, it was not enough for Mr. Beck to show that the
presumption should have applied; in order to show
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6 BECK v. WILKIE
entitlement to service connection for his disease, he was re-
quired to demonstrate that the evidence of record in 1989
was insufficient to rebut the presumption. Because Mr.
Beck did not allege that the evidence of record in 1989 was
legally insufficient to rebut the presumption, the court con-
cluded that even if the 2017 Board erred in its interpreta-
tion of section 1112, Mr. Beck “has not demonstrated that
the Board could have found CUE in the 1989 Board deci-
sion because he has not demonstrated that the outcome of
the 1989 Board decision would have been manifestly differ-
ent.”
III
On appeal, Mr. Beck argues that the Veterans Court
erred by relying on a misinterpretation of 38 U.S.C. § 1112.
He further contends that the 1989 Board and the 2017
Board also misapplied section 1112. Finally, he contends
that the Veterans Court erroneously interpreted section
1112 in a way that infected its harmless error analysis.
There is a jurisdictional problem with Mr. Beck’s argu-
ments.. This court’s jurisdiction to review decisions of the
Veterans Court is limited. Section 7292(a) of Title 38 pro-
vides, in relevant part, that a party may appeal from a de-
cision of the Veterans Court “with respect to the validity of
a decision of the Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on by
the Court in making the decision.” 38 U.S.C. § 7292(a).
The statute further provides that this court “shall hold un-
lawful and set aside any regulation or any interpretation
thereof (other than a determination as to a factual matter)
that was relied upon in the decision” of the Veterans Court,
and that, except to the extent that a case presents a consti-
tutional issue, this court “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.” Id.
§ 7292(d).
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BECK v. WILKIE 7
In this case, Mr. Beck claims to be challenging the in-
terpretation of a statute—section 1112(a)—by the Veterans
Court. But his challenge is not within our jurisdiction, be-
cause the Veterans Court did not rely on an interpretation
of section 1112(a) in making its decision. To the contrary,
the Veterans Court expressly declined to interpret that
statute. Instead, the Veterans Court ruled that even if it
were to adopt Mr. Beck’s interpretation of the statute, it
would still uphold the decision of the Board of Veterans’
Appeals. For that reason, the court concluded, any error in
the Board’s interpretation of section 1112 was harmless.
Mr. Beck’s legal theory is that section 1112 requires the
presumption of service connection to be applied if there is
at least some evidence that the disease in question mani-
fested itself to a 10% degree of disability within one year of
the veteran’s discharge, regardless of any evidence to the
contrary. Mr. Beck acknowledges that the presumption set
forth in section 1112 is rebuttable under section 1113. He
argues, however, that contrary evidence may be considered
under section 1113 only for purposes of determining
whether the presumption, once established, has been re-
butted. In other words, he contends that rebuttal evidence
cannot be considered in determining whether the presump-
tion is available under section 1112 in the first instance.
But the question Mr. Beck asks us to resolve regarding the
interpretation of section 1112 is precisely the legal issue
that the Veterans Court found unnecessary to address.
The only issue the Veterans Court decided in this case
was whether, assuming Mr. Beck’s interpretation of section
1112 is correct, the Board’s error in interpreting the statute
was harmless as a factual matter. It is well settled that
this court lacks jurisdiction to review such harmless error
determinations by the Veterans Court. See, e.g., Jones v.
Wilkie, 964 F.3d 1374, 1381 (Fed. Cir. 2020); Pitts v.
Shinseki, 700 F.3d 1279, 1286–87 (Fed. Cir. 2012);
Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
Case: 19-2448 Document: 34 Page: 8 Filed: 01/15/2021
8 BECK v. WILKIE
2007); Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir.
2004).
In response to questions at oral argument, counsel for
Mr. Beck argued that even though the Veterans Court
based its decision on harmless error, this court still has ju-
risdiction over his appeal because the harmless error de-
termination itself was based on a misinterpretation of
section 1112. For that reason, his argument suggests, the
Veterans Court’s ruling “relied on” the interpretation of a
statute within the meaning of our jurisdictional statute,
section 7292(a).
The problem with that argument is that the Veterans
Court assumed that Mr. Beck’s legal interpretation of sec-
tion 1112 was correct before finding, as a factual matter,
that any error in construing that statute would be harm-
less. Because the Veterans Court concluded that Mr.
Beck’s CUE claim would have failed regardless of how the
Board interpreted section 1112, the court’s ruling could not
have been based on an interpretation of section 1112 that
was adverse to Mr. Beck. Accordingly, the jurisdictional
test of section 7292 has not been satisfied. 2
2 In his reply brief, Mr. Beck argues that the Veter-
ans Court’s harmless error analysis was legally flawed be-
cause it impermissibly relieved the agency of the burden of
showing that his disease was not incurred in service, a bur-
den that Mr. Beck contends the agency could not have met.
We disagree. The court found that in the CUE context Mr.
Beck was required to show that the evidence of record in
1989 was legally insufficient to rebut the section 1112(a)(1)
presumption and that he failed to do so; that is to say, the
court found that the evidence was sufficient to justify a con-
clusion that Mr. Beck’s disease was not incurred or aggra-
vated in service. We discern no legal error in the court’s
reasoning.
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BECK v. WILKIE 9
Because we lack jurisdiction to address the fact-based
harmless error determination, which was the only issue de-
cided by the Veterans Court, we must dismiss this appeal.
DISMISSED