Pitts v. Dept. Of Veterans Affairs , 461 F. App'x 935 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LARRY D. PITTS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7109
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 09-0280, Judge Lawrence B.
Hagel.
___________________________
Decided: January 27, 2012
___________________________
LARRY D. PITTS, of Tuscaloosa, Alabama, pro se.
NICHOLAS K. JABBOUR, 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 TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
PITTS v. DVA 2
and DEBORAH A. BYNUM, Assistant Director. Of counsel
on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and LARA K. EILHARDT, Attorney,
United States Department of Veterans Affairs, Of Wash-
ington, DC.
__________________________
Before NEWMAN, BRYSON and REYNA, Circuit Judges.
PER CURIAM.
Mr. Larry D. Pitts (“Pitts”) appeals the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) in Pitts v. Shinseki, No. 09-0280, 2010
U.S. App. Vet. Claims LEXIS 1507, *1 (Aug. 19, 2010),
which held that the Board of Veterans’ Appeals (“the
Board”) committed no clear and unmistakable error
(“CUE”) in denying a compensable rating for postopera-
tive residuals of an epigastric hernia, to include a sepa-
rate compensable disability evaluation for a scar. For
lack of jurisdiction, we dismiss.
BACKGROUND
Pitts served in the Army beginning in 1977, including
active duty for training from January to May 1984. Id. at
*2. Service medical records reflect that Pitts was seen in
March 1984 for swelling above the belly-button and was
diagnosed as having an epigastric hernia. The epigastric
hernia was subsequently repaired by surgery in April
1984.
In May 1984, a month after his successful surgery,
the Department of Veterans Affairs (“VA”) granted Pitts
service connection and a noncompensable disability rating
for postoperative residuals of an epigastric hernia under
38 C.F.R. § 4.114, Diagnostic Code (“DC”) 7339 (hernia,
3 PITTS v. DVA
ventral, postoperative). Pitts challenged this determina-
tion seeking entitlement to a compensable rating. That
challenge remained pending until February of 1990.
In January of 1987, Pitts was hospitalized at a VA fa-
cility for various complaints, including occasional ab-
dominal pain. Examination at that time revealed an “old
scar with keloid formation over epigastric area,” but there
was no rigidity, tenderness, or palpable mass. Pitts, 2010
U.S. App. Vet. Claims LEXIS 1507 at *3. In June of the
same year, Pitts was treated on an outpatient basis for
abdominal pain. Pitts complained of sharp non-radiating
pain so he was issued a Velcro abdominal support belt
and prescribed muscle relaxant. Id.
In early 1988, an examination revealed no evidence of
herniation at the site of the surgical scar, but there was
an identifiable “hole” just above the belly-button. Id. at
*4. The physician diagnosed this as an incarcerated
umbilical hernia and recorded it on the medical record.
The examiner found no evidence, however, of any ventral
hernia at the site of the surgical scar. In March 1988,
Pitt’s surgical scar was reportedly “flat and well-healed.”
Id.
In September 1988, as part of his ongoing challenge
seeking a compensable rating for postoperative residuals
of his epigastric hernia, Pitts was examined by the VA.
Pitts told the VA examiner about a small bulge along the
surgical incision that “comes and goes.” Id. He stated
that he had another bulge above the umbilicus which also
came and went. The VA examination revealed a well-
healed surgical incision with no signs of ventral hernia.
Id. at *4-5. The examiner also noted a small abdominal
defect, about the size of a finger tip, situated between the
incision and the umbilicus. The examiner commented
PITTS v. DVA 4
that this defect in the abdominal wall had most likely
been present since birth. Id. at *5.
On February 17, 1990, the Board denied Pitts’s May
1984 request for a compensable rating for postoperative
residuals of an epigastric hernia under DC 7339, finding
that the surgical scar caused no disability. The Board
concluded that the evidence showed that Pitts’s epigastric
hernia had resulted in a well-healed scar, and that “[n]o
related disability had been shown for the postoperative
epigastric hernia.” Id. In reviewing the medical evidence,
including the 1988 reports, the Board also found that the
small abdominal defect was “anatomically and diagnosti-
cally distinct from the service-connected epigastric her-
nia.” Id. Accordingly, the requirements under DC 7339
for a compensable rating were deemed unmet. Id. at *6.
In 2007, seventeen years after the denial of a com-
pensable rating, Pitts filed a motion challenging the
Board’s February 1990 decision on the basis of CUE. Id.
at *7. Pitts asserted that the Board erred in failing to
assign a separate compensable rating for his abdominal
hernia under 38 C.F.R. § 4.118 (DC 7804 (scar(s), unsta-
ble or painful)), despite evidence that his scars were
tender and painful. In December 2008, the Board found
that no CUE had been committed in Board’s decision of
February 1990 and rejected Pitt’s assertion that he was
entitled to a separate disability rating under DC 7804.
The Board specifically found that the while Pitts had
complained of abdominal tenderness around the surgical
incision area in 1987, see Pitts, 2010 U.S. App. Vet.
Claims LEXIS 1507 at *3, the scar itself was not shown to
be painful, eliminating the possibility of a rating under
DC 7804. On the contrary, the Board noted that upon
examination in January of 1987, the scar had no rigidity,
tenderness, or palpable mass. The Board stated that “[i]t
5 PITTS v. DVA
is within the Board’s purview to review the evidence and
determine the most appropriate evaluation of a specific
disability, to include the [diagnostic code] under which
that disability is evaluated.” Id. at *8. The Board con-
cluded that, in 1990, “the overall evidence before it
showed that [Pitts’s] epigastric hernia was principally
manifested by a well-healed abdominal scar.” Id. The
Board held that Pitts did not show CUE, but merely
disagreed with the Board’s weighing of the evidence. Id.
Pitts appealed to the Veterans Court. Pitts again as-
serted that the February 1990 decision of the Board failed
to consider evidence showing that his postoperative
epigastric scar was tender and should have been rated
under DC 7804. Pitts also argued before the Veterans
Court that the 1990 decision of the Board contained CUE
because it found that his small abdominal defect (the
diagnosed umbilical hernia) was distinct from his service-
connected epigastric hernia. Lastly, Pitts argued that the
Velcro abdominal support belt prescribed for his use was
a basis for finding CUE because the Board had failed to
consider it in its 1990 decision.
The Veterans Court affirmed the Board’s December
2008 determination that there was no CUE in the Febru-
ary 1990 decision. The Veterans Court found that the
Board’s 2008 opinion was not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
the law. Id. at *1. It likewise found the 1990 Board
decision supported by an adequate statement of “reasons
or bases.” Id. at *12.
Regarding Pitts’s argument that the Board failed to
consider evidence of scar tenderness under DC 7804, the
Veterans Court held that the Board properly considered
the totality of the evidence in making its determination.
PITTS v. DVA 6
Id. at *15. The Veterans Court concluded that, “Mr. Pitts
is simply objecting to the way the Board in 1990 weighed
the evidence before it, which cannot constitute clear and
unmistakable error.” Id.
Addressing Pitts’s claim that it was CUE to find his
small abdominal defect separate and distinct from the
service-connected epigastric hernia, the Veterans Court
held that the Board had properly reviewed the totality of
the evidence, including the 1988 VA examination report
opining that the umbilical hernia was most likely present
since birth. Id. at *16. Given this evidence, the Veterans
Court again concluded that Pitts was merely disagreeing
with the way the Board weighed the facts in 1990. Id.
Lastly, concerning Pitts’s argument that the Velcro
abdominal belt was a basis for finding CUE, the Veterans
Court found that this theory was not previously raised
before the Board. The Veterans Court rearticulated:
“‘When an appellant raises a new theory of [CUE] for the
first time before the Court, the Court must dismiss for
lack of jurisdiction.’” Id. at *17 (quoting Acciola v. Peake,
22 Vet. App. 320, 325 (2008)). Because it had not been
argued to the Board, the Veterans Court held that it
lacked jurisdiction to adjudicate this new theory. Id. at
*18. The Veterans Court noted, however, that Pitts was
free to pursue his novel CUE allegation before the Board
in the first instance. The Veterans Court, therefore,
affirmed the Board in finding no CUE among the claims
properly presented. Id. Pitts timely appealed to this
court.
DISCUSSION
Our jurisdiction to review the decisions of the Veter-
ans Court is narrowly circumscribed by statute. Yates v.
7 PITTS v. DVA
West, 213 F.3d 1372, 1373-74 (Fed. Cir. 2000). We may
review the decisions of the Veterans Court “on a rule of
law or of any statute or regulation,” or “any interpretation
thereof” relied upon by the Veterans Court in rendering
its decision. 38 U.S.C. § 7292(a). We can set aside a
regulation or an interpretation of a regulation relied upon
by the Veterans Court when we find it to be arbitrary,
capricious, and an abuse of discretion, or otherwise not in
accordance with law; contrary to constitutional right,
power, privilege, or immunity; in excess of statutory
jurisdiction, authority, or limitations, or in violation of a
statutory right; or without observance of procedure re-
quired by law. See id. at § 7292(d)(1). However, except
for an appeal that “presents a constitutional issue,” this
court “may not review (A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. at
§ 7292(d)(2).
Pursuant to statute, an otherwise final board decision
“is subject to revision on the grounds of clear and unmis-
takable error.” 38 U.S.C. § 7111(A). A claim of CUE is
considered “a collateral attack on a final [VA regional
office] or Board decision.” Disabled Am. Veterans v.
Gober, 234 F.3d 682, 698 (Fed. Cir. 2000); Bustos v. West,
179 F.3d 1378, 1380 (Fed. Cir. 1999). Under 38 C.F.R.
§ 20.1403, a rule entitled “What constitutes clear and
unmistakable error; what does not,” CUE is defined:
(a) General. Clear and unmistakable error is a
very specific and rare kind of error. It is the kind
of error, of fact or of law, that when called to the
attention of later reviewers compels the conclu-
sion, to which reasonable minds could not differ,
that the result would have been manifestly differ-
ent but for the error. Generally, either the correct
PITTS v. DVA 8
facts, as they were known at the time, were not
before the Board, or the statutory and regulatory
provisions extant at the time were incorrectly ap-
plied.
The regulation further describes the stringent standard
required for finding CUE:
Errors that constitute clear and unmistakable er-
ror. To warrant revision of a Board decision on
the grounds of clear and unmistakable error,
there must have been an error in the Board’s ad-
judication of the appeal which, had it not been
made, would have manifestly changed the out-
come when it was made. If it is not absolutely
clear that a different result would have ensued,
the error complained of cannot be clear and un-
mistakable.
38 C.F.R. § 20.1403(c). Errors that cannot constitute
CUE, pursuant to § 20.1403(d) include (1) a changed
diagnosis, where a “new medical diagnosis ‘corrects’ an
earlier diagnosis considered in a Board decision,” (2) the
VA’s failure to “fulfill the duty to assist,” and (3) a “dis-
agreement as to how the facts were weighed or evalu-
ated.”
Thus, simply asking the Veterans Court to reweigh
the evidence is not a valid CUE claim. Damrel v. Brown,
6 Vet. App. 242, 246 (1994); see also Russell v. Principi, 3
Vet. App. 310, 313-14 (1992) (en banc). Rather, as this
court noted, “the clear and unmistakable error provision
applies when the facts compel[] the conclusion, to which
reasonable minds could not differ . . . .” Yates, 213 F.3d at
1375 (internal quotation marks omitted). Additionally, a
valid CUE claim requires showing that the alleged error,
9 PITTS v. DVA
had it not been made, “‘would have manifestly changed
the outcome at the time it was made.’” Bustos, 179 F.3d
at 1380 (quoting Russell, 3 Vet. App. at 313); see also
Cook v. Principi, 318 F.3d 1334, 1343 (Fed. Cir. 2002) (en
banc); Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (“Even
where the premise of error is accepted, if it is not abso-
lutely clear that a different result would have ensued, the
error complained of cannot be, ipso facto, clear and un-
mistakable error.”).
Pitts argues on appeal that: (1) the conclusion that
the small abdominal defect was most likely present since
birth was CUE; (2) the decision to not grant a com-
pensable rating for an epigastric hernia and for a tender
and painful scar was CUE; (3) the CUE claim involving
the abdominal belt was encompassed in his earlier chal-
lenge and remains a pending unadjudicated claim; and (4)
the absence of certain service records from his file until
October 1990 was CUE.
With respect to the first two issues above, Pitts pre-
sents arguments disagreeing with how the evidence was
weighed. Courts will not find CUE on this basis. 38
C.F.R. § 20.1403(d) (“disagreement as to how the facts
were weighed or evaluated” cannot constitute CUE). The
Veterans Court decision on appeal simply applied estab-
lished law that a valid CUE claim must be “undebatable,”
and not premised on a mere disagreement as to how the
facts were weighed. Russell, 3 Vet. App. at 313. While
Pitts may be dissatisfied with how the Board weighed the
evidence in 1990, such a disagreement is insufficient to
establish CUE. Id. (requiring that the CUE be such that
“reasonable minds could only conclude that the original
decision was fatally flawed at the time it was made”); see
also Yates, 213 F.3d at 1375.
PITTS v. DVA 10
More fundamentally, Pitts’s assertions regarding the
misweighing of evidence are inherently fact-based and
this court does not have jurisdiction to review such mat-
ters on appeal. See, e.g., Andino v. Nicholson, 498 F.3d
1370, 1373 (Fed. Cir. 2007) (noting that this court should
not be “making credibility determinations or weighing
evidence—all of which is beyond our jurisdiction”);
Yates, 213 F.3d at 1375. Pitts does not make legal argu-
ments to challenge the validity or interpretation of a
statute or regulation on which the Veterans Court relied,
and Pitts does not present constitutional issues. Fairly
read, these arguments deal with nothing more than the
nature and extent of Pitts’s condition, raising purely
factual issues. This court does not have jurisdiction to
review facts where no constitutional questions are posed.
38 U.S.C. § 7292(d)(2); see also Conway v. Principi, 353
F.3d 1369, 1372-73 (Fed. Cir. 2004); Lennox v. Principi,
353 F.3d 941, 946 (Fed. Cir. 2003); Cook v. Principi, 353
F.3d 937, 940 (Fed. Cir. 2003).
Pitts’s third assertion on appeal, that prior submis-
sions and record evidence created a CUE claim involving
the Velcro abdominal belt, is also factual. Moody v.
Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (holding
that the issue of whether prior filings and documents
raised claims is a factual inquiry); Cook, 353 F.3d at 941
(same). Moreover, if the “appellant raises a new theory of
CUE for the first time before the [Veterans] Court, the
Court must dismiss for lack of jurisdiction.” Acciola, 22
Vet. App. at 325. Pitts argued to the Veterans Court for
the first time that it was CUE for the February 1990
decision to deny an increased disability rating under DC
7339 in light of his use of an abdominal support belt and
muscle weakness. Pitts, 2010 U.S. App. Vet. Claims
LEXIS 1507 at *17. The Veterans Court refused to ad-
dress this argument, however, finding that none of Pitts’s
11 PITTS v. DVA
communications with the VA had ever asserted this
specific CUE theory before. Pitts now argues that be-
cause the Velcro abdominal belt was in the record in 1990,
it is inherently subsumed within his other CUE claims
that were properly raised.
Pitts’s CUE claims must be “set forth clearly and spe-
cifically” to be part of the collateral attack on the Board’s
decision initiated in 2007. 38 C.F.R. § 20.1404(b); see
Disabled Am. Veterans, 234 F.3d at 699 (finding specific-
ity requirement reasonable). Pursuant to this specificity
requirement, “each ‘specific’ assertion of CUE constitutes
a claim that must be the subject of a decision by the
[Board] before the Veterans Court can exercise jurisdic-
tion over it.” Andre v. Principi, 301 F.3d 1354, 1361 (Fed.
Cir. 2002). The Veterans Court was correct that the
Board’s December 2008 decision has absolutely no discus-
sion whatsoever of Pitts’s abdominal belt theory in the
CUE context. Given even a sympathetic reading, assert-
ing that the abdominal belt is grounds for CUE is an
argument newly-minted for the Veterans Court, which
properly dismissed Pitts’s claim. 1 Even if the Veterans
Court had accepted Pitts’s abdominal belt assertions as
properly raised, Pitts would still be required to show that
this CUE was outcome determinative, see Cook, 318 F.3d
1 Pitts’s related argument raised for the first time
on appeal before this court, that his CUE claim regarding
the Velcro abdominal belt remains a pending “unadjudi-
cated claim,” is likewise not well-taken. It also raises an
issue outside of the specific CUE claims passed on below.
We will not consider this argument in the first instance
here. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)
(federal appellate courts do not consider arguments not
properly raised and passed on below). The Veterans
Court noted that Pitts remains free to present his new
CUE allegations to the Board, however. Pitts, 2010 U.S.
App. Vet. Claims LEXIS 1507 at *18.
PITTS v. DVA 12
at 1343-44, an issue that is beyond our jurisdiction to
review, Andre, 301 F.3d at 1362 n.4; Bustos, 179 F.3d at
1380-81.
Pitts’s final argument also relies on unsubstantiated
factual assertions. Pitts claims that it was CUE that
certain service official records were not associated with
the claim file until October of 1990, and invokes 38 C.F.R.
§ 3.156. Pitts does not explain how this regulation per-
tains to the issues, nor does he even identify which ser-
vice records he is referring to in his Informal Opening
Brief. 2 To the degree that Pitts is arguing that the Board
did not consider all available evidence in its February
1990 decision, he is challenging a factual finding made by
the Veterans Court. The Veterans Court expressly found
that “the Board in February 1990 considered the totality
of the evidence in making its decision.” Pitts, 2010 U.S.
App. Vet. Claims LEXIS 1507 at *15. As Pitts’s argument
again fails to identify any legal error and disputes only
factual determinations, it is not within our jurisdiction to
review. See 38 U.S.C. § 7292(d)(2).
2 Appellant’s Informal Reply Brief at 11, in re-
sponse to the Government’s criticism that Pitts had not
identified the document in question, suggests that it is a
1977 medical examination allegedly showing that he did
not have the small abdominal defect from birth. This
missing document was discussed in the Veterans Court
decision, where it was explained that: “This document
does not appear in the record of the proceedings. The
Secretary stated in his brief that Mr. Pitts did not ade-
quately identify this document in his briefs and that, after
a thorough review of the record before the agency, the
Secretary was unable to locate this document.” Pitts,
2010 U.S. App. Vet. Claims LEXIS 1507 at *15 n.7. As
this document does not appear in the record before us, it
cannot be considered.
13 PITTS v. DVA
Thus, this court is without jurisdiction to consider any
issue on appeal because they are either factually based or
not properly before this court.
CONCLUSION
Because all Pitts’s arguments are beyond the scope of
this court’s jurisdiction, we dismiss.
DISMISSED
COSTS
No costs.