Case: 20-2286 Document: 24 Page: 1 Filed: 02/12/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MUJAHID S. MALIKULMULK,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-2286
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-8335, Judge Coral Wong Pi-
etsch.
______________________
Decided: February 12, 2021
______________________
MUJAHID S. MALIKULMULK, Canton, MI, pro se.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.; Y. KEN LEE, ANDREW J.
STEINBERG, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
Case: 20-2286 Document: 24 Page: 2 Filed: 02/12/2021
2 MALIKULMULK v. MCDONOUGH
______________________
Before LOURIE, CHEN, and HUGHES, Circuit Judges.
PER CURIAM.
Appellant Mujahid S. Malikulmulk appeals a decision
by the United States Court of Appeals for Veterans Claims
dismissing an appeal of a decision by the Board of Veter-
ans’ Appeals. Because the Veterans Court properly inter-
preted the statutes and regulations at issue, and because
we lack jurisdiction over Mr. Malikulmulk’s remaining ar-
guments, we affirm the Veterans Court’s decision.
I
Mr. Malikulmulk served on active duty in the U.S.
Army from January 1959 to March 1962. Malikulmulk v.
Wilkie,
2020 WL 4211570 at *1 (Vet. App. 2020) (Decision).
In December 2004, Mr. Malikulmulk filed a claim seeking
service connection for bilateral hearing loss and other dis-
abilities that he asserted were connected to his experience
in the military as an infantryman and paratrooper.
Id. In
July 2006, the VA regional office (RO) denied Mr.
Malikulmulk’s hearing loss claim because there was no ev-
idence available indicating that Mr. Malikulmulk served in
the infantry or as a paratrooper.
Id.
In February 2017, Mr. Malikulmulk filed another
claim, this time submitting service records that confirmed
his service in an infantry unit.
Id. Nevertheless, the RO
continued to deny service connection.
Id. Mr. Malikulmulk
filed Notices of Disagreement (NODs) with respect to both
the 2006 and 2017 RO decisions denying service connec-
tion. Id. at 2.
After the VA denied Mr. Malikulmulk’s claims, he ap-
pealed to the Board of Veterans’ Appeals. Id. On March 5,
2018, the Board issued a decision granting service connec-
tion, while also dismissing the challenge to the 2006 RO
decision as untimely. Id. The Board decision did not
Case: 20-2286 Document: 24 Page: 3 Filed: 02/12/2021
MALIKULMULK v. MCDONOUGH 3
address the disability rating to which Mr. Malikulmulk
was entitled or the date when benefits should take effect.
Rather, on March 11, 2019, the RO, acting on the Board’s
grant of service connection, issued a separate decision as-
signing a 100% disability rating for bilateral hearing loss,
with an effective date of February 14, 2017. Id. at 3.
II
We have limited jurisdiction to review appeals from the
Veterans Court. We have jurisdiction over “all relevant
questions of law, including interpreting constitutional and
statutory provisions.”
38 U.S.C. § 7292(d)(1). However,
“[e]xcept to the extent that an appeal under this chapter
presents a constitutional issue,” we may not review “a chal-
lenge to a factual determination,” or “a challenge to a law
or regulation as applied to the facts of a particular case.”
Id. § 7292(d)(2).
III
Mr. Malikulmulk first argues that the Board misinter-
preted
38 C.F.R. § 3.156 and that, because of this misinter-
pretation, the Board “arbitrarily ignore[d] the Veteran’s
newly submitted evidence.” Appellant’s Br. at 2. 1 We dis-
agree that the Board misinterpreted the regulation or ig-
nored the new evidence.
In order for the VA to reopen a legacy claim,
38 C.F.R.
§ 3.156(a) generally requires that evidence be both new
(not previously considered) and material (relating to an un-
established fact necessary to substantiate the claim). How-
ever, the VA will automatically reopen a claim when the
new evidence is a service department record, even without
1 Citations to Mr. Malikulmulk’s informal brief (and
the pages and documents included therein) reflect the pag-
ination applied by this court’s electronic case files system,
Docket No. 4.
Case: 20-2286 Document: 24 Page: 4 Filed: 02/12/2021
4 MALIKULMULK v. MCDONOUGH
determining that the evidence is new and material. See
id.
§ 3.156(c)(1).
Because the new evidence at issue here was a service
record, the RO and the Board automatically reopened and
reconsidered the claim for service connection. S.A. 13. And
based on these service records, the Board ultimately ruled
in Mr. Malikulmulk’s favor. See id. at 16 (“[T]he Board
finds that the Veteran’s claim regarding bilateral hearing
loss is consistent with the circumstances, conditions, and
hardships of his active service as a member of an infantry
unit, and the preponderance of the medical evidence sup-
ports that conclusion.”). We agree with the VA’s interpre-
tation of
38 C.F.R. § 3.156(c).
Next, Mr. Malikulmulk appears to argue that he
should be entitled to an earlier effective date of service con-
nection under
38 C.F.R. § 3.156(c)(1)(iii). See, e.g., Appel-
lant’s Br. at 9–10. However, the Board decision that the
Veterans Court considered did not assign a date of entitle-
ment, as it lacked authority to do so in the first instance,
and Mr. Malikulmulk has not appealed the RO decision
that did assign such a date.
We lack jurisdiction to consider the proper effective
date because Mr. Malikulmulk has not challenged this de-
termination, nor sought review at the Board or Veterans
Court. As explained by the Veterans Court:
To initiate appellate review of the RO’s assignment
of the effective date, the appellant should have filed
an NOD within a year from the date the notice of
the RO’s decision was mailed. Alternatively, if the
appellant did not file an NOD, he may request re-
vision of the RO’s March 2019 decision assigning
the effective date based on clear and unmistakable
error (CUE).
Decision,
2020 WL 4211570, at *3 (citations omitted).
Additionally, determination of the effective date is a
Case: 20-2286 Document: 24 Page: 5 Filed: 02/12/2021
MALIKULMULK v. MCDONOUGH 5
question of fact which we lack jurisdiction to review.
See
38 U.S.C. § 7292(d)(2).
To the extent that Mr. Malikulmulk argues that the
Board was required to assign an effective date, rather than
refer this decision to the RO, we disagree. By its plain lan-
guage, § 3.156(c)(1)(iii) describes the proper effective date
that must be used, but it has no bearing on which entity
must make such a finding. Moreover, the Board here was
without jurisdiction to assign an effective date in the first
instance. See
38 U.S.C. § 7104.
Finally, Mr. Malikulmulk challenges the Veterans
Court’s decision dismissing the 2006 claims. The Veterans
Court found that Mr. Malikulmulk abandoned his chal-
lenge to the timeliness of his NOD because he did not raise
any arguments on this issue before the Veterans Court.
Decision,
2020 WL 4211570, at *3. We lack jurisdiction to
review the Veterans Court’s determination that no argu-
ment was raised regarding an issue. See Andre v. Principi,
301 F.3d 1354, 1363 (Fed. Cir. 2002).
The Veterans Court then explained that, to the extent
Mr. Malikulmulk asserted that the 2006 decision should be
reopened for CUE, the Veterans Court lacked jurisdiction
to consider such a claim in the first instance. Decision,
2020 WL 4211570, at *3. We have previously explained
that “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 jurisdiction over it.” See
Andre,
301 F.3d at 1361. We therefore affirm the Veterans
Court decision that it lacked jurisdiction over allegations of
CUE that were raised for the first time on appeal.
IV
We have considered the parties’ remaining arguments
and find them unpersuasive. Because we agree with the
Veterans Court’s interpretations of law, and because we
Case: 20-2286 Document: 24 Page: 6 Filed: 02/12/2021
6 MALIKULMULK v. MCDONOUGH
lack jurisdiction over any other issue in this case, we affirm
the Veterans Court’s decision.
AFFIRMED IN PART AND DISMISSED IN PART
No costs.
