Duncan v. Shinseki , 565 F. App'x 905 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BERNARD DUNCAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7043
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3665, Chief Judge Bruce E.
Kasold.
______________________
Decided: May 14, 2014
______________________
BERNARD DUNCAN, of Chase City, Virginia, pro se.
MARTIN M. TOMLINSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT SNEE, Acting Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and AMANDA R. BLACKMON,
2 DUNCAN v. SHINSEKI
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before NEWMAN, PLAGER, and MOORE, Circuit Judges.
PER CURIAM.
Mr. Bernard Duncan pro se appeals from the judg-
ment of the United States Court of Appeals for Veterans
Claims (“CAVC”). The CAVC affirmed the decision by the
Board of Veterans Appeals (“Board”) denying (1) an
effective date prior to April 22, 1998, for assignment of a
50-percent disability rating and (2) a disability rating in
excess of 60-percent from August 30, 2002, for a service-
connected skin disability. Because Mr. Duncan does not
raise any challenges to statutory, regulatory, or constitu-
tional interpretation or application, we dismiss this
appeal for lack of jurisdiction.
BACKGROUND
Mr. Duncan served on active duty from March 1978 to
May 1980. While in service, he was treated for the skin
condition pseudofolliculitis barbae (“PFB”). Mr. Duncan
filed several claims for service connection for his skin
disability, including a claim in 1983, which was denied for
failure to prosecute, and a claim in 1986 in which the
Department of Veterans Affairs (“VA”) regional office
(“RO”) granted service connection for PFB, determining
that the severity of the condition warranted the assign-
ment of a 10-percent disability rating. Mr. Duncan did
not appeal either of these findings and they were made
final.
Mr. Duncan’s present claim dates back to March 1999
when he filed a claim seeking a higher disability rating
and asserted, for the first time, that his service-connected
PFB affected his ability to obtain employment. Since
1999, Mr. Duncan has filed a variety of appeals to the
DUNCAN v. SHINSEKI 3
Board and to the CAVC, and undergone multiple VA
examinations seeking to alter his disability rating. The
Board issued a May 2003 decision, awarding Mr. Duncan
an effective date of April 22, 1998, for the 30 percent
rating for the skin disorder and increased the rating for
the skin disorder from 30 to 50 percent, which the RO, in
June 2003, made effective April 22, 1998, and increased
the rating for the skin disorder to 60 percent, effective
August 30, 2002.
The present case stems from Mr. Duncan’s petition to
the CAVC appealing an October 27, 2011 Board decision.
In a July 24, 2013 decision, the CAVC affirmed the Board
decision denying an effective date prior to April 22, 1998,
for a 50% disability rating, and denying a disability rating
in excess of 60% from August 30, 2002, for a service-
connected skin disorder. Duncan v. Shinskei, No. 11-3665
(Vet. App. Jul. 24, 2013). 1
Mr. Duncan petitioned to this court to review the
CAVC’s affirmance of the Board decision. Pursuant to 38
U.S.C. § 7292(d), we lack jurisdiction over this case.
DISCUSSION
This court has jurisdiction to review a decision of the
CAVC “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 [CAVC]
in making the decision.” 38 U.S.C. § 7292(a). Pursuant to
38 U.S.C. § 7292(c), we also have jurisdiction “to review
and decide any challenge to the validity of any statute or
regulation or any interpretation thereof brought under
1 Mr. Duncan filed a motion for panel review, and a
three-judge panel affirmed the underlying single-judge
decision. Duncan v. Shinskei, No. 11-3665 (Vet. App. Oct.
24, 2013).
4 DUNCAN v. SHINSEKI
this section, and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a
decision.”
On appeal, Mr. Duncan makes three main arguments:
(1) that the Board and CAVC did not accept the “whole”
record before rendering their decision, Appellant Br. 3; (2)
that the examination report based on a medical examina-
tion performed by Dr. Cynthia McMurtry in May 2011 is
“bogus, ‘fraudulent’ and retaliating,” id. 2, as well as
“‘fraudulent and deceitful,’ racist and retaliating” id. 4;
and (3) that the CAVC decision affirms a decision of the
Board that was based upon an “incomplete record.” Id. 6-
7.
In contesting whether the Board considered certain
evidence in conducting its analysis, Mr. Duncan appeals a
procedural issue, rather than the review of the CAVC’s
interpretation or application of any statute or regulation.
This argument is outside the jurisdiction of this court.
See 38 U.S.C. § 7292(a). Additionally, Mr. Duncan’s
argument that the Board’s decision is based on an alleg-
edly “fraudulent” medical report fails to point to any
statute or regulation interpreted or applied by the CAVC.
Instead, Mr. Duncan’s argument goes to the weight that
the Board gave this evidence, a factual finding beyond
this court’s jurisdiction under 38 U.S.C. § 7292(d)(2).
Further, Mr. Duncan’s argument that the Board
failed to consider all of the evidence by failing to consider
an October 2013 medical report in reaching its determina-
tion omits the fact that the October 2013 medical exami-
nation was not before the Secretary and the Board
because the Board issued its decision in 2011, prior to this
medical examination. Therefore, the medical examination
was not part of the record the CAVC reviewed. See 38
U.S.C. § 7252(b) (“[r]eview in the [CAVC] shall be on the
record of proceedings before the Secretary and the
Board.”). A challenge to the CAVC’s application of 38
DUNCAN v. SHINSEKI 5
U.S.C. § 7252(b) to its review of Mr. Duncan’s case is
outside of this court’s jurisdiction because it does not
involve the interpretation of a statute, only its application
to Mr. Duncan’s particular case. See, e.g., Ferguson v.
Principi, 273 F.3d 1072, 1076 (Fed. Cir. 2001) (holding
that “[w]hen . . . a statute is unambiguous on its face, the
parties do not argue for differing interpretations, and the
Court of Appeals for Veterans Claims opinion is silent on
adopting a particular statutory construction, the only
logical conclusion is that the statute was not being inter-
preted, only applied”); 38 U.S.C. § 7292(d)(2).
Mr. Duncan’s arguments do not raise any issues relat-
ing to the CAVC’s interpretation of any statute or regula-
tion or relating to the CAVC’s decision to apply or not
apply a particular statute. 2 Therefore, we may not exer-
cise jurisdiction over this appeal under 38 U.S.C.
§ 7292(d)(2)(B).
CONCLUSION
We have considered the remaining arguments and do
not find them persuasive. For the foregoing reasons, the
appeal is dismissed for lack of jurisdiction.
DISMISSED
COSTS
No costs.
2 Although in his informal brief Mr. Duncan checks
the “yes” box for the question “Did the Court of Appeals
for Veterans Claims decision involve the validity or inter-
pretation of a statute or regulation?,” he fails to make
such an argument in his attached papers.