McKelvey v. Shinseki , 555 F. App'x 972 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KYLE R. MCKELVEY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7136
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2342, Chief Judge Bruce E.
Kasold.
______________________
Decided: February 10, 2014
______________________
KYLE R. MCKELVEY, of Pahrump, Nevada, pro se.
ERIC E. LAUFGRABEN, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director, and
CLAUDIA BURKE, Assistant Director. Of counsel were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
and TRACEY PARKER WARREN, Attorney, United States
2 MCKELVEY v. SHINSEKI
Department of Veterans Affairs, Office of General Coun-
sel, of Washington, DC.
______________________
Before LOURIE, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Kyle R. McKelvey (“McKelvey”) appeals from the deci-
sion of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) affirming in part and modify-
ing in part an April 1, 2011 decision of the Board of Vet-
erans’ Appeals (the “Board”) and declining to consider
certain issues raised by McKelvey for lack of jurisdiction.
See McKelvey v. Shinseki, No. 11-2342, 2013 WL 1966141
(Vet. App. May 14, 2013). Because we conclude that the
Veterans Court did not err in declining to consider those
issues raised for the first time on appeal for lack of juris-
diction, and because McKelvey’s remaining arguments
challenge factual findings outside of our jurisdiction to
review, we affirm in part and dismiss in part.
BACKGROUND
McKelvey served on active duty in the United States
Navy from February 1980 to February 1989 and receives
disability benefits from the Department of Veterans
Affairs (“VA”) for service-connected degenerative disc
disease (“DDD”) of the lumbar spine and total disability
based on individual unemployability (“TDIU”).
In a decision on April 1, 2011, the Board: (1) increased
McKelvey’s DDD disability rating from 20% to 40% for the
period prior to November 17, 2008, denied a rating in
excess of 40% for the period thereafter, awarded a 10%
rating for DDD-related incomplete paralysis of the left
lower extremity for the entire period under appeal, and
awarded a 10% rating for incomplete paralysis of the
right lower extremity from November 17, 2008; (2) denied
service connection for prostatitis after finding that he had
MCKELVEY v. SHINSEKI 3
no current disability; (3) granted service connection for
erectile dysfunction as secondary to DDD; (4) found that
his claim for an earlier effective date of TDIU was not
properly on appeal because he had not expressed disa-
greement with the assigned effective date at the Regional
Office (“RO”); (5) referred his claim of chronic pain syn-
drome to the RO because that issue had not been adjudi-
cated below; and (6) remanded his claim for service
connection of a heart condition to the VA for further
evidentiary development. Resp’t’s App. at 45–79.
McKelvey appealed the Board decision to the Veter-
ans Court and contended that the Board erred in failing
to apply the bilateral factor pursuant to 38 C.F.R. § 4.26
for the incomplete paralysis of the lower extremities, in
denying his claim for service-connected prostatitis, and in
finding that the effective date for TDIU was not on ap-
peal. McKelvey, 2013 WL 1966141, at *1. McKelvey also
alleged other errors by the VA and the Board, including
not considering the first three years of his military service
and thereby failing to consider the whole etiology of his
conditions, having other service members’ medical records
in his VA file, missing a 1989 Notice of Disagreement in
the record, and not considering whether an earlier denial
of service connection for a kidney condition was the prod-
uct of clear and unmistakable error (“CUE”). Id. at *1–2.
The Veterans Court affirmed the Board’s decision in
part and modified it in part. Id. at *3. The court modified
the Board’s decision in McKelvey’s favor to reflect a
combined disability rating with a bilateral factor of 21%
while noting that the failure to apply the bilateral factor
had no material effect on the 40% overall rating for DDD.
Id. at *1. The court affirmed the Board’s denial of service
connection for prostatitis and the finding that the TDIU
effective date was not properly on appeal. Id. at *2.
Regarding the alleged missing or misplaced files in the
VA records, the court found that “McKelvey fail[ed] to
demonstrate error or any prejudice arising from his
4 MCKELVEY v. SHINSEKI
asserted error” that affected the Board’s decision. Id. at
*3.
The Veterans Court declined to consider the alleged
CUE in the kidney claim because it “lack[ed] jurisdiction
over any assertions of CUE raised . . . for the first time on
appeal” and “McKelvey fail[ed] to demonstrate [that the
CUE claim] was presented below or that the Board erred
by not addressing such an argument.” Id. at *2. McKel-
vey requested reconsideration, which was denied by the
court. McKelvey v. Shinseki, No. 11-2342, 2013 WL
3448739, at *1 (Vet. App. July 10, 2013).
McKelvey 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. at § 7292(d)(2). However, “[t]he
jurisdictional reach of the Veterans Court presents a
question of law for our plenary review.” Maggitt v. West,
202 F.3d 1370, 1374 (Fed. Cir. 2000) (internal citation
omitted).
McKelvey argues that the Veterans Court’s decision
“[s]hould have [n]o [p]robative value since it is based on
inaccurate factual predicate and confusion [d]ue to VA
[i]mposed CUEs” over the past years. Pet’r’s Br. 7.
McKelvey asserts that those purported CUEs violated his
constitutional rights. McKelvey alleges that the Veterans
Court’s decision was “inaccurate, incomplete and rushed”
MCKELVEY v. SHINSEKI 5
because it did not address each and every argument in his
brief. Id. at 13–16. He asks this court to decide his
disability claims relating to the kidney and the spine and
to order the VA to locate the purported missing records.
We conclude that the Veterans Court addressed those
issues properly on appeal from the Board and that its
decision did not involve questions concerning the validity
or interpretation of a statute or regulation. The court
merely applied 38 C.F.R. § 4.26 and modified the Board’s
decision in McKelvey’s favor to reflect a combined disabil-
ity rating with a bilateral factor. The court made factual
findings in affirming the Board on the prostatitis and
TDIU issues and in reviewing the alleged deficiencies in
the VA records. McKelvey does not allege any particular
statute or regulation that was misinterpreted. Moreover,
without an adequate basis, McKelvey’s claims of constitu-
tional violations are constitutional claims in name only
and therefore do not invoke our jurisdiction to review.
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (find-
ing invocation of a constitutional label does not establish
jurisdiction). We thus dismiss McKelvey’s appeal on
those issues.
We do have jurisdiction, however, to review the
Veterans Court’s conclusion that it lacked jurisdiction
over McKelvey’s CUE claims. A CUE claim “must be the
subject of a decision by the [Board] before the Veterans
Court can exercise jurisdiction over it.” Andre v. Principi,
301 F.3d 1354, 1361 (Fed. Cir. 2002). Here, the Veterans
Court found that McKelvey’s CUE claims were not part of
the Board’s decision and McKelvey failed to demonstrate
that the CUE claims were raised at the Board in connec-
tion with the present appeal. We therefore affirm the
Veterans Court’s determination that it lacked jurisdiction
over McKelvey’s CUE claims.
We have considered McKelvey’s remaining argu-
ments, but find them to be unpersuasive or beyond our
6 MCKELVEY v. SHINSEKI
jurisdiction to review. For the foregoing reasons, we
affirm in part the Veterans Court’s decision and dismiss
in part the appeal.
AFFIRMED IN PART AND DISMISSED IN PART
COSTS
No costs.