Veteranclaims’s Blog

April 13, 2022

FedCir. Review; lack of subject matter jurisdiction; in Butler v. Shinseki we held that “when a disability was claimed or service connection established” are questions of fact “not subject to our review.” 603 F.3d 922, 926 (Fed. Cir. 2010); see also Echevarria-North v. Shinseki, 437 F. App’x 941, 945 (“The Board’s determination of an effective filing date is a finding of fact that the Veterans Court reviews for clear error, and it is a factual determination that is unreviewable by this court.” (citing Butler, 603 F.3d at 926));

Filed under: Uncategorized — veteranclaims @ 12:33 am

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit


CAROLE EVANS, SUBSTITUTED FOR JAMES E.
EVANS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1487


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6676, Judge Joseph L. Toth.


Decided: April 12, 2022


CAROLE EVANS, Weiner, AR, pro se.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M.
MCCARTHY; CHRISTOPHER O. ADELOYE, BRIAN D. GRIFFIN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 21-1487 Document: 44 Page: 1 Filed: 04/12/2022
2 EVANS v. MCDONOUGH


Before CHEN, SCHALL, and STOLL, Circuit Judges.
PER CURIAM.
Appellant Carole Evans, substituting for her deceased
spouse James E. Evans, appeals the decision of the Court
of Appeals for Veterans Claims (Veterans Court) affirming
a decision of the Board of Veterans’ Appeals (Board) granting
Mr. Evans an effective date of December 28, 20101 for
service-connected coronary artery disease (CAD). The Veterans
Court held that the Board did not clearly err in finding
that the earliest CAD diagnosis occurred on the
awarded effective date. The Veterans Court also found
that the Board did not err in concluding that a 1969 submission
of Department of Defense Form 664 did not constitute
an application for benefits. On appeal, Mrs. Evans
argues that the Veterans Court erred in both determinations.
Because Mrs. Evans raises only factual disputes, we
dismiss the appeal for lack of subject matter jurisdiction.
BACKGROUND
Mr. Evans served on active duty in the United States
Army from January 1968 to October 1969, during which he
deployed to Vietnam. Evans v. Wilkie, No. 19-6676, 2020
WL 6734865, at *1 (Vet. App. Nov. 17, 2020) (Veterans
Court Decision). Upon separation, Mr. Evans signed Form
664, indicating that he had filed a claim for benefits with
1 The Veterans Court and Board sometimes refer to
an effective date of December 29, 2010. This appears to be
a typographical error as the referenced document is dated
December 28, 2010. For consistency, we use a corrected
date of December 28, 2010. As the Government notes in its
responsive brief, this difference of one day would not affect
the award or calculation of benefits. Appellee’s Br. 4 n.4
(citing 38 U.S.C. § 5111(a)).
Case: 21-1487 Document: 44 Page: 2 Filed: 04/12/2022
EVANS v. MCDONOUGH 3
the Department of Veterans Affairs (VA). Appx. 30.2 The
record does not indicate that he filed additional documents
with the VA at or around that time. Mr. Evans did, however,
file a claim for benefits in September 2006 that the
VA ultimately denied. Appx. 8; Appx. 49. In that filing,
Mr. Evans identified CAD as one service-connected disability.
Appx. 54. Only later, in August 2010, did the VA add
CAD to the list of conditions presumed to be service-connected
due to herbicide exposure. 38 C.F.R § 3.309(e). In
response, the VA awarded Mr. Evans benefits and assigned
a ten-percent disability rating for CAD effective May 31,
2011, and a thirty-percent disability rating for CAD effective
September 28, 2011. Veterans Court Decision, at *1
n.1.
Mr. Evans continued to challenge the effective date in
subsequent proceedings and, in 2019, Mr. Evans appealed
the VA determinations to the Board. Id. at *1. The Board
concluded that Mr. Evans was first diagnosed with CAD on
December 28, 2010. Id.; Appx. 8; Appx. 70–72. Accordingly,
the Board awarded Mr. Evans retroactive benefits to
that date. Appx. 6, 23–24. Mr. Evans then appealed the
Board’s effective date determination to the Veterans Court,
which affirmed. Veterans Court Decision, at *1. The Veterans
Court found that the Board did not clearly err in
awarding an effective date of December 28, 2010 “because,
although the veteran filed a claim in 2006, there was no
evidence of CAD at that time” and “entitlement to service
connection [did not] arise until his disability manifested in
2010.” Id. Similarly, the Veterans Court found that “[t]he
Board did not err in its assessment that the checked block
on the veteran’s DA Form 664 did not constitute a claim or
otherwise suffice to demonstrate that a claim existed.” Id.
at *2. This appeal followed.
2 All Appx. citations refer to the appendix filed concurrently
with Appellant’s brief.
Case: 21-1487 Document: 44 Page: 3 Filed: 04/12/2022
4 EVANS v. MCDONOUGH
On appeal, Mrs. Evans, substituting for her deceased
spouse, argues that Mr. Evans was entitled to an earlier
effective date of October 4, 1969, the date of his separation.
Appellant’s Br. 5, 11. The Veterans Court, Mrs. Evans argued,
erred by “interpreting [the] October 4, 1969 submission
as not filing a claim for VA Benefits” and
“determin[ing] that Claimant-Appellant’s CAD was not
disabling prior to December 2[8], 2010.” Id. at 5–6, 12.
Mrs. Evans also argues that the VA failed to fulfill its
“Duty to Assist” between 1969 and 2006, resulting in delay
and an incomplete record. Id. at 10–13.
DISCUSSION
Our authority to review decisions of the Veterans Court
is limited by statute. Goodman v. Shulkin, 870 F.3d 1383,
1385 (Fed. Cir. 2017). While we have jurisdiction to “review
the legal determinations of the Veterans Court,” we
“may not review the Veterans Court’s factual findings or
its application of law to facts absent a constitutional issue.”
Singleton v. Shinseki, 659 F.3d 1332, 1334 (Fed. Cir. 2011);
see also 38 U.S.C. § 7292. Accordingly, where an appeal
challenges factual determinations by the Veterans Court,
we lack subject matter jurisdiction and dismissal is required.
Mrs. Evans identifies two errors in the Veterans Court
decision: (1) the effective date of Mr. Evans’s CAD disability,
and (2) whether Form 664 constitutes the filing of a
claim with the VA. We have consistently treated both
questions as issues of fact not subject to our review. For
example, in Butler v. Shinseki we held that “when a disability
was claimed or service connection established” are
questions of fact “not subject to our review.” 603 F.3d 922,
926 (Fed. Cir. 2010); see also Echevarria-North v. Shinseki,
437 F. App’x 941, 945 (“The Board’s determination of an
effective filing date is a finding of fact that the Veterans
Court reviews for clear error, and it is a factual determination
that is unreviewable by this court.” (citing Butler, 603
Case: 21-1487 Document: 44 Page: 4 Filed: 04/12/2022
EVANS v. MCDONOUGH 5
F.3d at 926)). There, like here, the appellant sought an
earlier effective date than the date granted by the Board
and subsequently affirmed by the Veterans Court. Butler,
603 F.3d at 925. Similarly, we have found that “the determination
as to whether evidence of record establishes that
the claimant filed a claim for benefits” is a factual determination
outside of this court’s jurisdiction. Harris v.
Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013); see also Bonner
v. Nicholson, 497 F.3d 1323, 1328 (Fed. Cir. 2007) (finding
that the interpretation of the scope of an earlier claim
“is essentially a factual inquiry . . . beyond our jurisdiction”).
While Mrs. Evans asserts that “[t]he issues on appeal
are entirely issues of law,” Appellant’s Br. 1, this
appeal does not present a “challenge to the validity of any
statute or regulation or any interpretation thereof” nor any
constitutional question subject to our review, 38 U.S.C. §
7292.
Mrs. Evans’s arguments that the VA failed to fulfill its
“duty to assist” Mr. Evans in filing and substantiating his
claim depend on the unreviewable factual determination
that Mr. Evans did not file a claim on October 4, 1969. Appellant’s
Br. 13; see also Sellers v. Wilkie, 965 F.3d 1328,
1338 (Fed. Cir. 2020) (explaining that the “duty to assist
begins upon receipt of a formal [or informal] claim that
identifies the medical condition for which benefits are
sought”). Accordingly, we cannot address that issue.
CONCLUSION
We have considered Mrs. Evans’s remaining arguments
and do not find them persuasive. For the foregoing
reasons, we dismiss the appeal for lack of subject matter
jurisdiction.
DISMISSED
COSTS
No costs.
Case: 21-1487 Document: 44 Page: 5 Filed: 04/12/2022

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