Parrish v. Dept. Of Veterans Affairs , 465 F. App'x 970 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MELVIN L. PARRISH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7015
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-2800, Judge William P.
Greene, Jr.
__________________________
Decided: March 13, 2012
__________________________
MELVIN L. PARRISH, of Cleveland, Ohio, pro se.
J. HUNTER BENNETT, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
Of counsel on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and BRIAN
M. SIMKIN, Assistant Director. Of counsel on the brief
PARRISH v. DVA 2
was DAVID J. BARRANS, Deputy Assistant, United States
Department of Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, MAYER, and DYK, Circuit Judges.
PER CURIAM.
Melvin L. Parrish appeals a judgment of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying his claim for an earlier effective date for
disability compensation related to liposarcoma of the right
leg. See Parrish v. Shinseki, No. 10-2800, 2011 U.S. App.
Vet. Claims LEXIS 1923 (Vet. App. Sept. 14, 2011) (“Vet-
erans Court Decision”). We dismiss for lack of jurisdic-
tion.
BACKGROUND
Parrish served in the United States Army from Feb-
ruary 1970 to September 1971. He was stationed in
Vietnam while on active duty. In July 2004, he filed a
claim seeking service-connected benefits for cancer of the
right leg. In a March 2005 rating decision, a regional
office (“RO”) of the Department of Veterans Affairs (“VA”)
granted Parrish disability benefits for postoperative
excision of liposarcoma of the right leg with loss of motion
of the knee and nerve damage to the right foot. In award-
ing Parrish disability compensation, the RO determined
that his liposarcoma was presumptively associated with
herbicide exposure in Vietnam. See 38 U.S.C.
§ 1116(a)(2)(B) (providing presumptive service connection
for Vietnam veterans who suffer from soft-tissue sarco-
mas). The RO assigned Parrish a sixty percent disability
rating, with an effective date of July 14, 2004.
Parrish then filed a notice of disagreement, disputing
the effective date for his award of disability benefits.
3 PARRISH v. DVA
After the RO denied his claim, he appealed to the Board of
Veterans’ Appeals (“board”). At a hearing before the
board, Parrish contended that his award of disability
benefits should be made retroactive to 1998, the date he
was first diagnosed with liposarcoma at a VA hospital.
Parrish further asserted that the VA had waived payment
for the expenses associated with two liposarcoma surger-
ies in 1999 and 2000 because it had determined that he
was entitled to service-connection for his liposarcoma.
According to Parrish, however, the VA never notified him
that he was entitled to service connection.
In February 2008, the board denied Parrish’s claim
for an earlier effective date. The board noted that the
effective date for an award of service-connected benefits
generally cannot be earlier than the date the VA received
a veteran’s claim for benefits. See 38 U.S.C. § 5110(a).
The board stated, moreover, that “[i]n the present case,
the record does not establish, and [Parrish] does not
allege, that he filed a claim for service connection for
liposarcoma until the July 14, 2004, claim noted by the
RO.” It concluded, therefore, that July 14, 2004 was the
appropriate effective date for Parrish’s award of disability
compensation.
On appeal to the Veterans Court, Parrish asserted
that the requests he filed in 1999 and 2000 asking the VA
to waive the costs of his liposarcoma surgeries constituted
claims for service-connected disability compensation. The
Veterans Court noted that Parrish’s claims seeking
waiver of the costs of his surgeries were not in the re-
cord, 1 but that he had submitted copies of letters from the
VA waiving payment of certain medical expenses. The
1 The VA reported that Parrish’s waiver requests
were destroyed by a VA medical center in Cleveland, Ohio
“pursuant to [its] standard record-keeping practices.”
PARRISH v. DVA 4
court concluded, however, that “there [was] no indication
from the VA letters granting such waivers or from other
evidence in the record that Mr. Parrish expressed an
intent to seek service connection for his liposarcoma until
he filed his claim for compensation for service connection
in July 2004.” Veterans Court Decision, 2011 U.S. App.
Vet. Claims LEXIS 1923, at *8. The court stated, more-
over, that Parrish had “conceded” during his October 2007
hearing before the board “that he did not file a claim for
service connection for liposarcoma until 2004.” Id. Ac-
cordingly, the Veterans Court rejected Parrish’s assertion
that he was entitled to an effective date prior to July
2004.
The Veterans Court also refused to grant Parrish’s
claims for an increased disability rating for his liposar-
coma and for special monthly compensation for the loss of
use of his right foot. The court explained that it had no
jurisdiction to consider these issues because they had not
been addressed by the board. Id. at *9.
Parrish then appealed to this court. We have jurisdic-
tion over appeals from the Veterans Court under 38
U.S.C. § 7292.
DISCUSSION
This court’s authority to review decisions of the Vet-
erans Court is limited. See 38 U.S.C. § 7292. We have
authority to review the validity of “a rule of law or of any
statute or regulation . . . or any interpretation thereof . . .
that was relied on by the [Veterans Court] in making [a]
decision.” 38 U.S.C. § 7292(a). We also have jurisdiction
to determine whether the court “misinterpreted our
rulings in earlier decisions on an issue of law.” Moody v.
Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Absent a
constitutional issue, however, we lack jurisdiction to
review the court’s factual findings or its application of law
5 PARRISH v. DVA
to the facts of a particular case. 38 U.S.C. § 7292(d)(2);
see Lennox v. Principi, 353 F.3d 941, 946 (Fed. Cir. 2003).
As a general matter, the effective date for an award of
service-connected benefits cannot be earlier than the date
the VA received a veteran’s claim seeking such benefits.
38 U.S.C. § 5110(a). VA regulations provide, however,
that “[a]ny communication” which indicates “an intent to
apply for one or more [VA] benefits” can potentially
qualify as an informal claim. 38 C.F.R. § 3.155(a).
“[W]hile an informal claim must identify the benefit
sought, the [VA] has a duty to fully and sympatheti-
cally develop the veteran’s claim to its optimum in order
to determine if an informal claim had been raised.”
Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)
(citations and internal quotation marks omitted);
Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).
Parrish correctly acknowledges that the fact that he
received a diagnosis of liposarcoma in 1998 is not suffi-
cient to establish that he is entitled to a 1998 effective
date for his award of service-connected disability benefits.
See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir.
2006). He contends, however, that he intended to make a
“claim” when he filed applications, in 1999 and 2000,
seeking waiver of the medical costs associated with his
liposarcoma treatment. The VA was unable to produce
copies of Parrish’s waiver requests, explaining that the
VA medical facility in Cleveland, Ohio had destroyed
them pursuant to its “standard record-keeping practices.”
Parrish, however, has substantiated his assertion that he
filed the waiver requests by submitting copies of letters
from the VA which approved those requests.
The Veterans Court, after evaluating the evidence,
concluded that there was no clear error in the board’s
determination that Parrish’s first claim for service-
PARRISH v. DVA 6
connected benefits was filed in July 2004. The court
determined that there was “no indication from the VA
letters granting . . . waivers [to Parrish] or from other
evidence in the record that Mr. Parrish expressed an
intent to seek service connection for his liposarcoma until
he filed his claim for compensation for service connection
in July 2004.” Veterans Court Decision, 2011 U.S. App.
Vet. Claims LEXIS 1923, at *8. The court noted, more-
over, that when Parrish testified before the board 2 in
October 2007, he “conceded that he did not file a claim for
service connection for liposarcoma until 2004.” Id.Parrish contends that he “[c]learly . . . intended to ap-
ply” for benefits when he filed the 1999 and 2000 waiver
requests and that “the VA recognized his entitlement [to
benefits] by waiving [his] medical expenses.” The Veter-
ans Court, however, rejected this contention and affirmed
the board’s determination that Parrish’s first claim for
service-connected benefits was not filed until July 2004. 3
As noted previously, our jurisdictional statute, section
7292, precludes us from reviewing the factual determina-
tions made in veterans’ cases. See Cook v. Principi, 353
F.3d 937, 940 (Fed. Cir. 2003). Because the conclusion
2 Parrish was represented by an attorney during
the October 2007 board proceedings.
3 A claim for waiver of medical expenses is not the
same as a claim for service-connected disability benefits.
Thus, the fact that Parrish filed a waiver request in 1999
does not necessarily establish that he filed a claim for
service-connected benefits at that time or that he is
entitled to a 1999 effective date. While the VA has a duty
to “give a sympathetic reading to [a] veteran’s filings,”
Szemraj, 357 F.3d at 1373, a veteran’s informal claim
must “identify the benefit sought,” 38 C.F.R. § 3.155(a).
7 PARRISH v. DVA
that Parrish’s waiver requests did not constitute informal
claims for service-connected benefits is a factual determi-
nation, we have no jurisdiction to review it. See Moody,
360 F.3d at 1310; Ellington v. Peake, 541 F.3d 1364, 1372
(Fed. Cir. 2008). Accordingly, we must dismiss Parrish’s
appeal for lack of jurisdiction.4
COSTS
No costs.
DISMISSED
4 On appeal, Parrish also argues that the Veterans
Court erred in refusing to consider his claims for an
increased rating for liposarcoma and an award of special
monthly compensation for the loss of use of his right foot.
Because these issues were not considered by the board,
however, the Veterans Court correctly determined that it
lacked jurisdiction to address them. See Ledford v. West,
136 F.3d 776, 779 (Fed. Cir. 1998).