Mathis v. Dept. Of Veterans Affairs , 494 F. App'x 78 ( 2012 )

Case: 12-7093 Document: 21 Page: 1 Filed: 09/20/2012
NOTE: This order is nonprecedential.
Wntteb ~tate~ Qrourt of ~peaI~
for tbe jfeberaI Qtircuit
GEIRY L. MATHIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
2012-7093
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-2052, Judge Mary J.
Schoelen.
Before BRYSON, MOORE, and O'MALLEY, Circuit Judges.
PER CURIAM.
ORDER
While serving on active duty in the U.S. Army from
June 1968 to September 1969, Geiry L. Mathis was in-
jured as a result of a gunshot wound to the left side of his
head. A Department of Veterans Affairs Regional Office
(RO) granted Mr. Mathis service-connected disability
status, rating his residual wounds at 10% disabling and
his headaches and tinnitus as the result of the trauma as
Case: 12-7093 Document: 21 Page: 2 Filed: 09/20/2012
GEIRY MATHIS v. SHINSEKI 2
10% disabling. The RO subsequently increased Mr.
Mathis's combined disability rating to 60% disabling
based on the finding that he was entitled to service con-
nection for a nonpsychotic organic brain syndrome (OBS)
condition with brain trauma and tinnitis.
In March 1979, the RO issued a decision, reducing
Mr. Mathis's disability rating for OBS from 50% to 30%
disabling. That decision rendered Mr. Mathis ineligible
for compensation for a total disability rating based on
individual unemployability (TDIU).
In May 1989, the RO denied Mr. Mathis entitlement
to service connection for post-traumatic stress disorder
(PTSD), and denied him an increased disability rating for
his tinnitus with headaches. Mr. Mathis sought to reopen
that decision with regard to his PTSD claim and was
eventually granted entitlement to service connection at
100% disabling, effective January 20, 1991.
The decision of the United States Court of Appeals for
Veterans Claims (the Veterans Court) on appeal ad-
dressed a number of asserted errors in the March 1979
and May 1989 RO decisions. With regard to the March
1979 decision, the Veterans Court affirmed a favorable
ruling by the Board of Veterans' Appeals finding clear and
unmistakable error (CUE) in that 1979 decision to reduce
his disability rating. The Veterans Court also affirmed
the Board's decision to remand the matter to the RO for a
determination in the first instance on whether at the time
of that decision he was entitled to TDIU.
, As to Mr. Mathis's PTSD condition, the Veterans
Cpurt found that he did not assert any error with regard
to the Board's factual finding that his January 20, 1991
correspondence was the earliest correspondence after May
1989 that could serve as the effective date for his PTSD
clkim, and therefore affirmed that determination. How-
ever, because the Board failed to adjudicate whether the
Case: 12-7093 Document: 21 Page: 3 Filed: 09/20/2012
3 GEIRY MATHIS v. SHINSEKI
May 1989 decision was the product of CUE insofar as it
denied entitlement to compensation for PTSD, the Veter-
ans Court remanded for proper adjudication.
Finally, with regard to his tinnitus condition, the Vet-
erans Court remanded for the Board to consider multiple
theories of CUE in the 1989 decision, including whether
Mr. Mathis was entitled to two 10% disability ratings for
tinnitus in each ear.
This appeal followed.
At the outset, we are confronted with several jurisdic-
tional obstacles to the arguments raised in Mr. Mathis's
informal brief. As to the PTSD and tinnitus CUE mat-
ters, this court has held that remand orders of the Veter-
ans Court are normally not reviewable. See Joyce u.
Nicholson, 443 F.3d 845,849 (Fed. Cir. 2006); Williams u.
ffincipi, 275 F.3d 1361, 1363 (2002); Adams u. Principi,
256 F.3d 1318, 1320 (2001). Although we have recognized
certain exceptions to that rule, such as where the remand
action itself would independently violate the rights of the
veteran, Mr. Mathis does not argue that those circum-
stances are presented here, nor can we find any support
in the record for the application of that exception.
We also lack jurisdiction to review whether the Veter-
ans Court erred in affirming the Board's decision to
remand Mr. Mathis's TDIU CUE matter to the RO on the
ground that it lacked jurisdiction to consider that issue
since it was not decided by the Board. Mathis u. Shinseki,
2012 WL 204259, at *3 (citing Jarrell u. Nicholson, 20
Vet. App. 326, 331 (2006) (en bane)). The Veterans Court
did not interpret any laws or regulations; rather it applied
th.e law to the facts of the case. Id.; see Ferguson u. Prin-
cipi, 273 F.3d 1072, 1075-76 (Fed. Cir. 2001). As the
V~terans Court's determination that it lacks jurisdiction
to'decide a CUE claim in the first instance is an applica-
Case: 12-7093 Document: 21 Page: 4 Filed: 09/20/2012
GEIRY MATHIS v. SHINSEKI 4
tion of law to fact, the issue is not reviewable by this
cqurt. See 38 U.S.C. § 7292(d)(2).
, To the extent that Mr. Mathis's brief criticizes the
manner in which the Board weighed the evidence regard-
ing his claim for an earlier effective date for his PTSD
claim, that is a question of fact or application of law to
fact that is also outside this court's limited jurisdiction.
See Butler v. Shinseki, 603 F.3d 922, 926 (Fed. Cir. 2010).
Absent a constitutional issue, we may not review chal-
lenges to factual determinations or challenges to the
application of a law or regulation to facts. See 38 U.S.C.
§ 7292(d)(2).
We are not persuaded by Mr. Mathis's other argu-
ments, over which we do have jurisdiction. Mr. Mathis
argues that the Department of Veterans Affairs violated
his due process rights. Although it is not entirely clear
what rights he claims to have been deprived of, there is no
merit to his argument. Due process ensures a party a
meaningful right to be heard with respect to the denial of
important government benefits, including veterans'
disability benefits. See Cushman v. Shinseki, 576 F.3d
1290, 1298-1300 (Fed. Cir. 2009). The fact that Mr.
Mathis must abide by the governing statutory scheme in
seeking entitlement to benefits does not deprive him of
his right to be heard regarding that claim.
The court also rejects Mr. Mathis's arguments regard-
ing a right to a jury trial. While the Seventh Amendment
provides the right to a jury trial in civil suits at common
law, it is not "implicated in the VA adjudication process."
Paswell v. Nicholson, 21 Vet. App. 102 (2006); see also
'full v. United States, 481 U.S. 412 nA (1987). Accord-
in.'gly, this constitutional claim is also without merit.
Accordingly,
IT Is ORDERED THAT:
Case: 12-7093 Document: 21 Page: 5 Filed: 09/20/2012
5 GEIRY MATHIS v. SHINSEKI
(1) The appeal is dismissed-in-part and the judgment
of the Veterans Court is summarily affirmed.
I
(2) Each side shall bear its own costs.
FOR THE COURT
SEP 20 2012 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Geiry L. Mathis cautS~W~
u.s.THE FEDERAL CIRCUITFOR
-
Nicholas Jabbour, Esq.
s26 SEP 202012
JAN HORBAlY
ClERK