Groves v. Nicholson , 240 F. App'x 868 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7044
GENE S. GROVES,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
Gene S. Groves, of Shafter, Texas, pro se.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Jeanne E. Davidson, Director, and Mark A. Melnick, Assistant
Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General
Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7044
GENE S. GROVES,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
____________________________
DECIDED: July 11, 2007
____________________________
Before RADER, BRYSON, and MOORE, Circuit Judges.
PER CURIAM.
Gene S. Groves appeals an order of the Court of Appeals for Veterans Claims
(Veterans Court) affirming a decision of the Board of Veterans’ Appeals (Board) that
found no clear and unmistakable error (CUE) in a 1981 Board decision denying both
service connection for an acquired psychiatric disorder and an increased rating for
residuals of a shell fragment in his right thigh. Groves v. Nicholson, No. 03-1236 (Vet.
App. Aug. 23, 2006). Because Groves fails to appeal on bases that fall within this
court’s jurisdiction and failed to present his due process argument to the Veterans
Court, we dismiss.
BACKGROUND
Groves is a veteran who had active service from January 1970 to August 1971
and was discharged from service on August 23, 1971. On March 16, 1981, the Board
denied service connection for an acquired psychiatric disorder and an increased rating
for residuals of a shell fragment wound in his right thigh. Groves later sought revision of
the 1981 Board decision based on CUE, and in May 2003, the Board determined that its
prior decision did not contain CUE.
Groves appealed to the Veterans Court, asserting the finding that an acquired
psychiatric disorder was not clearly shown was clearly erroneous and contradicted by
1979 medical evidence that documented diagnoses of depression and anxiety. He also
alleged that the Board improperly found he had sustained only a superficial wound to
his right thigh and failed to consider 38 C.F.R. §§ 4.40, 4.51, 4.56(c), and 4.118
Diagnostic Code 7804 when adjudicating that claim. Finally, Groves alleged that the
Board provided an inadequate statement of reasons or bases for its 1981 decision.
In an order dated August 23, 2006, the Veterans Court affirmed the 2003 Board
decision, indicating that the 1979 medical evidence may not have been before the
Board in 1981 but that the record at that time contained evidence of a personality
disorder. The order indicated that Groves failed to demonstrate the outcome would
have been different had the Board considered the 1979 medical records in 1981 and
thus CUE had not been proven. Additionally, the Veterans Court found Groves’
disagreement with the Board’s determination as to the wound in his right thigh a
disagreement as to the weight afforded to the evidence, which is not a basis for CUE.
The Veterans Court determined that it lacked jurisdiction over Groves’ assertions of
error regarding the Board’s failure to consider 38 C.F.R. §§ 4.40, 4.51, 4.56(c), and
4.118 Diagnostic Code 7804, finding those specific allegations of CUE were not raised
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before the Board. 1 Finally, it found that Groves failed to raise specific allegations
regarding the inadequacy of the Board’s statement of reasons or bases for its 2003
decision and was not a basis for a CUE finding. This appeal followed.
ANALYSIS
Our jurisdiction to review decisions of the Veterans Court is limited. We have
jurisdiction to “review and decide any challenge to the validity of any statute or
regulation or any interpretation thereof” by the Veterans Court “and to interpret
constitutional and statutory provisions, to the extent presented and necessary to a
decision.” 38 U.S.C. § 7292(a), (c). However, unless a constitutional issue is
presented, we may not review factual determinations or the application of law to a
particular set of facts. Id. at § 7292(d)(2); Spencer v. Brown, 17 F.3d 368, 374 (Fed.
Cir. 1994).
On appeal, Groves contends that his CUE claim concerns the failure of the Board
to address the 1979 medical records diagnosing Groves with anxiety and depression.
Groves alleges that the Veterans Court determined the factual value of those records in
the first instance, and challenges the Veterans Court findings. Since Groves does not
challenge the validity of the Veterans Court decision with respect to the validity or
interpretation of any statute or regulation relied upon by that court, we lack jurisdiction
over this claim. Groves also appeals the Veterans Court decision that there was no
CUE in the Board finding that the wound in his right thigh was only superficial.
1
Groves’ argument regarding the Board’s failure to apply these regulations
was presented for the first time to the Veterans Court. Groves must first raise these
allegations before the Board and obtain a final decision before appealing on this basis.
See 38 U.S.C. §§ 7252, 7266(a).
2007-7044 3
Likewise, we lack jurisdiction over Groves’ appeal of the Veterans Court finding of no
CUE as to this determination by the Board.
Finally, Groves alleges that the Board violated his due process rights for failure to
comply with the Veterans Claims Assistance Act of 2000 (VCAA) by depriving him of the
opportunity to obtain and submit additional records to the Board. But Groves was
represented by counsel below and did not present this constitutional argument to the
Veterans Court, nor was it considered or decided by that court. Instead, Groves’ motion
to revise or reverse the March 1981 Board decision on the basis of CUE merely alleged
that there was noncompliance with the requirements of the VCAA. The Veterans Court
determined that a claim of CUE is not a claim for veterans’ benefits, and thus, the duties
associated with claims and applications for benefits provided in the VCAA are
inapplicable to Groves’ appeal. The Veterans Court also determined that the
regulations that delineate errors that constitute CUE indicate that the failure of VA to
fulfill the duty to assist does not constitute CUE, citing 28 C.F.R. § 20.1403(c)-(d).
As a general rule this court may not consider an argument raised for the first time
on appeal. See Boggs v. West, 188 F.3d 1335, 1337-38 (Fed. Cir. 1999) (determining
that the court will not consider statutory interpretation questions presented for the first
time on appeal). This rule ensures that “parties may have the opportunity to offer all the
evidence they believe relevant to the issues ... [and] in order that litigants may not be
surprised on appeal by final decision there of issues upon which they have had no
opportunity to introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556 (1941).
Because Groves did not raise his argument concerning the Board’s alleged violation of
2007-7044 4
his due process rights for failure to comply with the VCAA in the Veterans Court, we will
not consider this argument in the first instance.
CONCLUSION
For the foregoing reasons, this appeal is dismissed.
COSTS
Each party shall bear its own costs.
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