Jelks v. McDonald , 640 F. App'x 888 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANNY O. JELKS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1020
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1896, Judge Margaret C.
Bartley.
______________________
Decided: February 8, 2016
______________________
DANNY O. JELKS, Birmingham, AL, pro se.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
SCOTT D. AUSTIN; SAMANTHA ANN SYVERSON, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 JELKS v. MCDONALD
______________________
Before PROST, Chief Judge, NEWMAN and LOURIE,
Circuit Judges.
PER CURIAM.
Danny O. Jelks (“Jelks”) appeals from the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“Board”) that denied entitlement to an
effective date prior to February 11, 2003 for service con-
nection for degenerative disc disease (“DDD”) with thora-
columbar scoliosis. See Jelks v. McDonald, No. 14-1896,
2015 WL 4591686 (Vet. App. July 30, 2015) (“Opinion”).
Because Jelks’ arguments on appeal only challenge factu-
al findings and an application of law to the facts of his
case, we dismiss for lack of jurisdiction.
BACKGROUND
Jelks served on active duty in the U.S. Army from
June 1977 to November 1980 and from September 1981 to
December 1985. In January 1990, he filed a claim at the
Department of Veterans Affairs (“VA”) for disability
benefits for a “back injury.” Opinion, 2015 WL 4591686,
at *1. A VA Regional Office (“RO”) denied the claim in
April 1990, and Jelks appealed to the Board.
In November 1990, the Board found that Jelks suf-
fered from “congenital scoliosis of the thoracolumbar
spine” and that “a chronic back disorder was not incurred
in or aggravated by the veteran’s active service.” Resp’t’s
App. (“R.A.”) 40. The Board therefore denied service
connection for thoracolumbar scoliosis. R.A. 41. Jelks did
not timely appeal from that decision, which then became
final.
Subsequently, in December 1994 and July 2001, Jelks
sought to reopen the previously denied claim, but the RO
denied his requests in April 1995 and August 2001, re-
JELKS v. MCDONALD 3
spectively. R.A. 32. Jelks did not appeal from those
decisions, which also became final.
On February 11, 2003, Jelks filed another request to
reopen his claim for “a back condition originally diagnosed
as scoliosis.” Opinion, 2015 WL 4591686, at *1. After
further development of the record, in April 2009, the
Board awarded service connection for DDD with thoraco-
lumbar scoliosis. In May 2009, the RO implemented the
Board decision and assigned an effective date of February
11, 2003, the date of the request to reopen the claim.
Jelks disagreed with the assigned effective date and
appealed to the Board. Before the Board, he testified that
he initially filed a claim for service connection for his back
condition in 1986, while being treated at a VA facility and
within one year from the date of his discharge from ser-
vice. Id. He thus argued to the Board that his claim had
remained pending since 1986.
In May 2014, the Board denied entitlement to an ef-
fective date prior to February 11, 2003 for service connec-
tion for DDD with thoracolumbar scoliosis. R.A. 25–35.
The Board determined that February 11, 2003 was the
date when Jelks filed the claim that ultimately led to the
grant of service-connected benefits for his back disorder,
and that his January 1990, December 1994, and July
2001 claims were all denied by final decisions. The Board
acknowledged Jelks’ allegation that he filed a claim for
disability benefits in 1986, but found no record evidence
indicating that such an alleged claim was ever filed. R.A.
33. The Board also reasoned that, even assuming that
Jelks had filed such a claim in 1986, the subsequent 1990
decision denying his claim for service connection for a
back injury would have terminated the pending status of
any such alleged prior claim. R.A. 33–34 (citing Williams
v. Peake, 521 F.3d 1348, 1350–51 (Fed. Cir. 2008)).
Jelks then appealed to the Veterans Court. Before
the Veterans Court, he argued that he “filed his original
4 JELKS v. MCDONALD
service connection claim in January 1990,” R.A. 18 (em-
phasis added), and that his initial claim was for a “back
injury,” whereas the November 1990 Board decision
denied disability benefits only for thoracolumbar scoliosis,
Opinion, 2015 WL 4591686, at *2. He thus asserted that
his initial claim for benefits for a back disability other
than thoracolumbar scoliosis remained pending and was
not adjudicated until the April 2009 award of service
connection for DDD with thoracolumbar scoliosis. Id.In July 2015, the Veterans Court affirmed the Board
decision denying an effective date prior to February 11,
2003 for service connection for DDD with thoracolumbar
scoliosis. Id. at *4. The court found no clear error in the
Board’s factual findings relating to the effective date. The
court also found that, even assuming that Jelks had been
led to believe that the VA had bifurcated his initial claim
for benefits for a back injury into two claims—one for
thoracolumbar scoliosis and one for a more general back
disability—the express language of the November 1990
Board decision was sufficient to inform him that both
claims were denied and that no part of his back injury
claim remained pending and unadjudicated. Id. at *3.
The Veterans Court accordingly entered judgment in
August 2015. Jelks appealed to this court, seeking to
invoke our jurisdiction pursuant to 38 U.S.C. § 7292(a).
DISCUSSION
The scope of our review in an appeal from a Veterans
Court decision is limited. We may review a Veterans
Court decision with respect to the validity of a decision on
a rule of law or the validity or interpretation of any
statute or regulation that was relied upon by the Veterans
Court in making the decision. 38 U.S.C. § 7292(a). Ex-
cept with respect to constitutional issues, we “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)(2).
JELKS v. MCDONALD 5
Jelks argues that the VA has “kept some of my medi-
cal records hidden and . . . those records will clearly help
me substantiate my claim.” Appellant’s Informal Br. 1.
He alleges that the VA intentionally withheld his medical
records for the period between 1986 and 1990 and altered
other records in his file. He also alleges that the VA
concealed evidence of a claim for service connection for his
back condition that he allegedly filed in 1986. Additional-
ly, he appears to ask this court to review the effective date
for a disability claim relating to his feet.
We conclude that we lack jurisdiction over this appeal
because the Veterans Court’s decision did not involve
questions concerning the validity or interpretation of a
statute or regulation. Jelks also concedes that the Veter-
ans Court did not decide any constitutional issue. Appel-
lant’s Informal Br. 1. In affirming the Board on the
February 11, 2003 effective date, the court merely re-
viewed the Board’s factual findings for clear error and
applied established law to the particular facts of the case.
The court did not elaborate on the meaning of any statute
or regulation, or make a decision on a rule of law.
Indeed, Jelks does not allege that the Veterans Court
misinterpreted any particular regulation or statute. Nor
does he assert that the regulation or statute that was
applied by the court was invalid or that the court misstat-
ed the law in its analysis. Rather, the arguments pre-
sented by Jelks suggest that he only disagrees with the
Board’s and the Veterans Court’s factual findings and
their application of the existing law to the facts of his
case. To the extent that Jelks argues that he filed a claim
for service connection for a back condition in 1986, that is
purely a factual question, presented to and addressed by
the Board, which is not within our jurisdiction to review.
The record shows that Jelks’ principal argument be-
fore the Veterans Court was that his January 1990 claim
for a general back injury remained pending because the
6 JELKS v. MCDONALD
Board’s November 1990 decision only addressed thoraco-
lumbar scoliosis. R.A. 15–23. He did not argue to the
Veterans Court that he originally filed the service-
connection claim for his back condition in 1986 or that the
VA failed in its duty to assist in connection with that
alleged claim. Likewise, he did not make any argument
concerning the effective date of a disability claim relating
to his feet. Thus, we decline to consider those arguments
for the additional reason that Jelks failed to properly
raise them to the Veterans Court. Boggs v. West, 188 F.3d
1335, 1337–38 (Fed. Cir. 1999).
We have considered the remaining arguments pre-
sented in Jelks’ informal appeal brief, informal reply
brief, and subsequent supplemental filings, but find them
to be unpersuasive or beyond our jurisdiction to review.
For the foregoing reasons, we dismiss the appeal for lack
of jurisdiction.
DISMISSED
COSTS
No costs.