Levario v. McDonough ( 2021 )


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  • Case: 21-1358    Document: 26     Page: 1   Filed: 10/12/2021
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    MIKE R. LEVARIO,
    Claimant-Appellant
    v.
    DENIS MCDONOUGH, SECRETARY OF
    VETERANS AFFAIRS,
    Respondent-Appellee
    ______________________
    2021-1358
    ______________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in No. 19-9109, Judge Michael P. Allen.
    ______________________
    Decided: October 12, 2021
    ______________________
    MIKE R. LEVARIO, San Antonio, TX, pro se.
    VIJAYA SURAMPUDI, Commercial Litigation Branch,
    Civil Division, United States Department of Justice, Wash-
    ington, DC, for respondent-appellee. Also represented by
    BRIAN M. BOYNTON, ERIC P. BRUSKIN, ROBERT EDWARD
    KIRSCHMAN, JR.; AMANDA BLACKMON, BRIAN D. GRIFFIN,
    Office of General Counsel, United States Department of
    Veterans Affairs, Washington, DC.
    ______________________
    Case: 21-1358     Document: 26     Page: 2    Filed: 10/12/2021
    2                                     LEVARIO   v. MCDONOUGH
    Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.
    PER CURIAM.
    Many years after completing his service in the Marine
    Corps, Mike R. Levario sought benefits from the Depart-
    ment of Veterans Affairs (VA) for residual effects of a cer-
    vical spine surgery conducted at a VA facility, as well as for
    a vocal cord condition and a throat condition. The relevant
    VA regional office (RO) and then the Board of Veterans’ Ap-
    peals denied the requested benefits, both under 
    38 U.S.C. § 1110
     (service-connected disability based on wartime ser-
    vice) and under 
    38 U.S.C. § 1151
     (compensation for disabil-
    ity from VA medical treatment). When Mr. Levario
    appealed the Board’s decision to the Court of Appeals for
    Veterans Claims (Veterans Court), that court dismissed
    the appeal as to Mr. Levario’s § 1110 claims and affirmed
    the Board’s denial as to his § 1151 claims. Levario v.
    Wilkie, No. 19-9109, 
    2020 WL 5200655
     (Vet. App. Aug. 31,
    2020); Supplemental Appendix (SAppx.) 1–9. Mr. Levario
    now appeals to us. We must dismiss the appeal, because
    we lack jurisdiction to decide the issues he raises.
    I
    We recite the background facts based on the factual
    findings and premises set forth by the Board and the Vet-
    erans Court, which (as noted infra) we lack jurisdiction to
    question in this case. Mr. Levario served in the Marine
    Corps from October 1971 to August 1974, a period of war.
    In May 2007, he sought treatment at a VA medical center
    for a cervical spine condition and underwent surgery at a
    VA facility. In 2011, Mr. Levario filed a claim for disability
    benefits, under 
    38 U.S.C. § 1110
    , for residuals from his cer-
    vical spine surgery, a vocal cord condition, and a throat
    condition, which he alleged were service connected.
    In June 2013, the relevant RO denied those claims,
    stating that there was no evidence that the cervical spine
    Case: 21-1358    Document: 26      Page: 3    Filed: 10/12/2021
    LEVARIO   v. MCDONOUGH                                     3
    surgery, vocal cord condition, and throat condition were
    connected to his military service. SAppx. 38–39. Mr. Le-
    vario appealed to the Board. In a January 2019 decision,
    the Board found that Mr. Levario’s claims were more ap-
    propriately characterized as claims for compensation un-
    der 
    38 U.S.C. § 1151
    , which allows a veteran disabled
    because of VA medical treatment to receive compensation
    for a qualifying disability in specified circumstances in the
    same manner as if the disability were service connected.
    SAppx. 34. Accordingly, without reviewing the denial of
    the § 1110 claims, the Board remanded to the RO with in-
    structions to also “develop and adjudicate” Mr. Levario’s
    claims under § 1151. SAppx. 35.
    On remand, the RO obtained additional medical rec-
    ords and arranged for and received a VA medical opinion
    concerning Mr. Levario’s § 1151 claims. In August 2019,
    the RO denied Mr. Levario’s claims, finding that the claims
    did not meet the requirements for compensation under
    § 1151 and its implementing regulation, 
    38 C.F.R. § 3.361
    .
    Specifically, the RO found that the throat condition was re-
    lated to extrinsic compression of the esophagus, not to the
    spine surgery. SAppx. 29. The RO also found that, while
    there was evidence of a nerve injury that resulted in a tran-
    sient vocal cord condition following surgery, that condition
    had resolved, and, more generally, there was no evidence
    that it had resulted from carelessness, negligence, lack of
    proper skill, error in judgment, or similar instance of fault
    on the part of VA and no evidence that it was not reasona-
    bly foreseeable. SAppx. 28–29. The RO further noted the
    absence in this case of any other “residuals of spinal cord
    surgery.” SAppx. 28. Mr. Levario appealed the RO’s deci-
    sion to the Board, which in December 2019 affirmed both
    the August 2019 RO decision concerning the § 1151 claims
    and the June 2013 RO decision concerning the § 1110
    claims. SAppx. 13–23.
    Mr. Levario then appealed the Board’s decision to the
    Veterans Court, which issued a single-judge decision on
    Case: 21-1358     Document: 26      Page: 4   Filed: 10/12/2021
    4                                     LEVARIO   v. MCDONOUGH
    August 31, 2020. The court dismissed the appeal concern-
    ing the § 1110 claims, finding Mr. Levario’s arguments too
    undeveloped to address. Levario, 
    2020 WL 5200655
    , at *2.
    The court affirmed the Board’s rejection of the § 1151
    claims, rejecting Mr. Levario’s arguments that the Board
    failed to ensure compliance with its January 2019 remand,
    improperly relied on the VA medical opinion, and did not
    sufficiently explain its decision. Id. at *2–4. On September
    29, 2020, a three-judge panel of the Veterans Court
    adopted the one-judge decision as the decision of the Veter-
    ans Court. SAppx. 1–2. Mr. Levario timely appealed.
    II
    This court’s jurisdiction to review decisions of the Vet-
    erans Court, defined by 
    38 U.S.C. § 7292
    , is limited. We
    have jurisdiction to decide an appeal insofar as it presents
    a challenge to a Veterans Court’s decision regarding a rule
    of law, including a decision about the interpretation or va-
    lidity of any statute or regulation. 
    Id.
     § 7292(a), (d)(1). We
    do not have jurisdiction to review a challenge to a factual
    determination or a challenge to the application of a law or
    regulation to the facts of a particular case, except to the
    extent that an appeal presents a constitutional issue. Id.
    § 7292(d)(2). Under those standards, Mr. Levario has not
    presented an issue that is within our jurisdiction.
    Mr. Levario has not shown that the Veterans Court ex-
    pressly or implicitly interpreted or ruled on the validity or
    interpretation of a statute or regulation or other rule of
    law. He questions many aspects of the Veterans Court’s
    decision. App. Inf. Br. at 4–7 (questioning the Veteran
    Court’s dismissal of the § 1110 claims); 1 id. at 1–2, 9–10
    1  It is unclear whether Mr. Levario contends that the
    Veterans Court was incorrect to conclude that he had not
    adequately presented arguments concerning the Board’s
    adjudication of his § 1110 claims or, instead, was incorrect
    Case: 21-1358    Document: 26      Page: 5    Filed: 10/12/2021
    LEVARIO   v. MCDONOUGH                                     5
    (questioning the determination that the Board complied
    with the 2019 remand order, sufficiently explained its rea-
    soning, and permissibly relied on an adequate medical
    opinion); see also App. Inf. Reply Br. at 1–3 (elaborating on
    compliance with remand arguments); id. at 3–5 (question-
    ing the Veteran Court’s understanding of § 1151 and of 
    38 C.F.R. § 3.102
    ). Although he asserts that Veterans Court’s
    conclusions were “based on an incorrect understanding of
    the governing law,” App. Inf. Br. at 6, we see nothing be-
    yond challenges to the Veterans Court’s application of gov-
    erning legal standards to the facts of this case (or
    challenges to Board findings of fact)—challenges that are
    outside our jurisdiction where no constitutional issue is
    meaningfully presented.
    The Veterans Court applied the proper legal standard
    concerning the threshold for sufficiently developed argu-
    ments and determined that any appeal concerning § 1110
    claims for benefits for service-connected disabilities—to
    the extent Mr. Levario even raised such arguments—
    should be dismissed. Levario, 
    2020 WL 5200655
    , at *2.
    The Veterans Court also applied proper legal standards in
    affirming the Board’s § 1151 decision—concerning review
    of Board determinations of the adequacy of medical opin-
    ions, the right to compliance with a remand order, and the
    requirement that the Board provide adequate reasoning.
    Id. at *2–4. These types of determinations are either a “fac-
    tual determination” under § 7292(d)(2)(A) or the applica-
    tion of law to “the facts of a particular case” under
    § 7292(d)(2)(B) and thus not within this court’s appellate
    jurisdiction in the absence of a constitutional challenge.
    See, e.g., Dyment v. Principi, 
    287 F.3d 1377
    , 1381 (Fed. Cir.
    to address the § 1110 claims at all (since he had not in-
    cluded such claims in his notice of appeal to the Veterans
    Court). This distinction does not affect our determination
    that we lack jurisdiction.
    Case: 21-1358     Document: 26      Page: 6    Filed: 10/12/2021
    6                                     LEVARIO   v. MCDONOUGH
    2002); Rascoe v. Wilkie, 842 F. App’x 568, 570–71 (Fed. Cir.
    2021); Smith v. McDonough, 856 F. App’x 297, 298–99 (Fed
    Cir. 2021); Sharkozy v. Shinseki, 524 F. App’x 694, 697
    (Fed. Cir. 2013).
    Mr. Levario has not stated a constitutional challenge.
    Citing Conroy v. Aniskoff, 
    507 U.S. 511
    , 514 (1993), Mr. Le-
    vario argues that the Veterans Court “[failed] to provide an
    accurate and complete written definition of 38 USC section
    1151 pursuant to . . . 38 CFR section 3.361.” App. Inf. Br.
    at 2, 8–9; see also App. Inf. Reply Br. at 3. He also repeats
    his arguments concerning alleged non-compliance with the
    Board’s 2019 remand order, App. Inf. Br. at 9; App. Inf.
    Suppl. Br. at 4–6; contends that the Board failed to con-
    sider all theories of entitlement, App. Inf. Br. at 9, 11; and
    argues that the Veterans Court intentionally ignored rele-
    vant questions of law, improperly relied on his lack of legal
    knowledge, and disregarded his constitutional and statu-
    tory rights to “fair and equal due process,” id. at 2, 11. But
    these bare invocations of constitutional labels do not give
    rise to a recognizable constitutional violation, and this is
    not a case where a constitutional claim is apparent in the
    absence of explanation. See Helfer v. West, 
    174 F.3d 1332
    ,
    1335 (Fed. Cir. 1999) (holding there is no § 7292 jurisdic-
    tion based on bare invocation of constitutional label). Ac-
    cordingly, we must dismiss for lack of jurisdiction.
    III
    For the foregoing reasons, Mr. Levario’s appeal is dis-
    missed.
    The parties shall bear their own costs.
    DISMISSED