Murakami v. Shinseki , 555 F. App'x 983 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
YUKIO MURAKAMI,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7006
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2143, Judge William A. Moor-
man.
______________________
Decided: February 11, 2014
______________________
YUKIO MURAKAMI, of Spokane, Washington, pro se.
CORINNE A. NIOSI, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT SNEE, Acting Director, and
SCOTT D. AUSTIN, Assistant Director. Of counsel on the
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, and CHRISTINA L. GREGG, Attorney, United
2 MURAKAMI v. SHINSEKI
States Department of Veterans Affairs, of Washington,
DC.
______________________
Before LOURIE, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
Petitioner pro se, Yukio Murakami, appeals the deci-
sion of the United States Court of Appeals for Veterans
Claims (the “Veterans Court”), which affirmed the Board
of Veterans Appeals’s denial of his claim for a higher level
of special monthly compensation based on a need for
regular aid and attendance. Because the Veterans Court
did not err in interpreting the applicable statutory and
regulatory provisions, we affirm.
BACKGROUND
Mr. Murakami served in the U.S. Air Force from Oc-
tober 1971 to October 1991. Shortly before his retirement
from service, Mr. Murakami was hospitalized after expe-
riencing an episode of atypical psychosis in the form of
catatonia with somatization. Shortly after retirement,
Mr. Murakami submitted claims to the Department of
Veterans Affairs (“VA”) Regional Office for benefits,
including dependency benefits for his three sons, the
eldest of which he identified as being over 18 years old.
After a series of decisions, the Regional Office eventu-
ally granted Mr. Murakami a 100 percent service-
connected disability rating for his atypical psychosis. 1
1 In 1992, the Regional Office initially determined
that his atypical psychosis was 100 percent disabling from
November 1, 1991 to January 1, 1992. The Regional
Office also determined that Mr. Murakami’s psychosis
went into remission after January 1, 1992 and was thus
zero percent disabling after this date. In the years follow-
MURAKAMI v. SHINSEKI 3
The Regional Office also granted Mr. Murakami disability
compensation for several physical conditions, including
duodenitis, dermatitis, tendinitis, hearing loss, and
osteoarthritis. The Regional Office granted Mr. Muraka-
mi’s claim for dependency benefits for his younger sons
but declined to extend benefits for his eldest son. His
claims for dependency benefits are not before us on ap-
peal.
In 2005, given Mr. Murakami’s 100 percent disability
rating, the VA granted Mr. Murakami entitlement to an
additional award of special monthly compensation at the
housebound rate effective November 1, 1991. Special
monthly compensation is available to “[e]xtraordinarily
disabled veterans already receiving a 100% disability
rating” and is “over and above the monthly amount for
total disability.” Guillory v. Shinseki, 603 F.3d 981, 983
(Fed. Cir. 2010). In 2006, Mr. Murakami sent a letter to
the VA asserting that, under 38 U.S.C. § 1114, he was
entitled to an even higher level of special monthly com-
pensation based on his need for regular “aid and attend-
ance.” The VA’s regulatory criteria for determining
whether a veteran is in need of regular aid and attend-
ance are contained in 38 C.F.R. § 3.352(a).
In February 2007, the Regional Office denied Mr. Mu-
rakami’s claim on the basis that he did not meet the
criteria for the higher level of special monthly compensa-
tion because he was not “so helpless . . . as to be perma-
nently bedridden or in need of regular aid and
attendance.” Mr. Murakami filed a Notice of Disagree-
ment with the decision, and the Regional Office issued a
Statement of the Case in June 2009 again denying the
ing, Mr. Murakami continued to receive periodic psycho-
logical examinations, and recurring episodes led the VA to
increase his disability compensation back to 100 percent
in 1998, retroactive to January 1, 1992.
4 MURAKAMI v. SHINSEKI
claim. Mr. Murakami subsequently appealed the decision
to the Board of Veterans Appeals (the “Board”).
In July 2012, the Board affirmed the Regional Office’s
denial of Mr. Murakami’s claim for a higher level of
special monthly compensation, and Mr. Murakami ap-
pealed the Board’s decision to the Veterans Court. In his
appeal before the Veterans Court, Mr. Murakami princi-
pally argued that the Board relied on illegal regulations,
found at 38 C.F.R. §§ 3.350, 3.352, to deny his claim for a
higher level of special monthly compensation. He assert-
ed that the Board should have directly applied 38 U.S.C.
§ 1114 to his case and that the provisions found in the
Code of Federal Regulations contain only “personal opin-
ions made by someone at VA.” In affirming the Board’s
decision and rejecting Mr. Murakami’s argument that 38
C.F.R. §§ 3.350, 3.352 are illegal regulations, the Veter-
ans Court noted that the Secretary of the VA is broadly
authorized by statute to prescribe rules and regulations
“necessary or appropriate to carry out the laws adminis-
tered by the Department[.]” 38 U.S.C. § 501(a). The
Veterans Court thus held that the Board did not err in
applying the criteria of 38 C.F.R. §§ 3.350, 3.352 to Mr.
Murakami’s claim.
On October 1, 2013, Mr. Murakami filed a timely no-
tice of appeal to this Court.
DISCUSSION
Under 38 U.S.C. § 7292(a), this Court has jurisdiction
to review “the validity of a decision of the [Veterans]
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the [Veter-
ans] Court in making the decision.” When reviewing
decisions of the Veterans Court, this Court may not
review “a challenge to a factual determination” or “a
challenge to a law or regulation as applied to the facts of a
particular case” except to the extent that a constitutional
MURAKAMI v. SHINSEKI 5
issue is presented. 38 U.S.C. § 7292(d)(2). Thus, this
Court must affirm a decision by the Veterans Court
unless it is “(A) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (B) contrary
to constitutional right, power, privilege, or immunity; (C)
in excess of statutory jurisdiction, authority, or limita-
tions, or in violation of a statutory right; or (D) without
observance of procedure required by law.” 38 U.S.C.
§ 7292(d)(1). We review the Veterans Court’s legal de-
terminations de novo. Cushman v. Shinseki, 576 F.3d
1290, 1296 (Fed. Cir. 2009).
We hold that the Veterans Court did not err in affirm-
ing the Board’s denial of Mr. Murakami’s claim for special
monthly compensation. Mr. Murakami’s argument that
the Secretary lacked authority to issue regulations im-
plementing the special monthly compensation statute is
without merit, and the Veterans Court thus did not err in
affirming the Board’s use of the criteria set forth in 38
C.F.R. §§ 3.350, 3.352 to decide Mr. Murakami’s claim.
Mr. Murakami argues that 38 C.F.R. §§ 3.350, 3.352
are invalid and were an improper basis for denying his
claim because 38 U.S.C. § 1114 does not explicitly author-
ize the Secretary to promulgate implementing regulations
that govern entitlement to special monthly compensation.
As noted by the Veterans Court, however, 38 U.S.C. § 501
broadly authorizes the Secretary to “prescribe all rules
and regulations which are necessary or appropriate to
carry out the laws administered by the Department and
are consistent with those laws, including—(1) regulations
with respect to the nature and extent of proof and evi-
dence and the method of taking and furnishing them in
order to establish the right to benefits under such
laws . . . .” 38 U.S.C. § 501(a)(1). The plain language of
this provision does not restrict the Secretary’s rulemaking
authority to only those provisions that expressly grant
such authority; rather, it gives the Secretary broad au-
thority to promulgate rules carrying out all the laws
6 MURAKAMI v. SHINSEKI
whose administration is entrusted to the VA. Id. We
therefore agree with the Veterans Court that the Board
properly used the criteria set forth in 38 C.F.R. §§ 3.350,
3.352 to decide Mr. Murakami’s claim.
We lack jurisdiction to review Mr. Murakami’s re-
maining arguments challenging the VA’s application of
the law to his factual situation. Mr. Murakami argues
that the VA misapplied 38 U.S.C. § 1114 to his situation
and that, under a correct reading of the statute, he would
have been entitled to a higher level of special monthly
compensation. This Court’s jurisdiction does not extend
to “challenge[s] to a law or regulation as applied to the
facts of a particular case.” 38 U.S.C. § 7292(d)(2). We
thus decline to reach Mr. Murakami’s arguments on this
point.
CONCLUSION
Based on the foregoing, we affirm the decision of the
Veterans Court.
AFFIRMED
COSTS
Each party shall bear its own costs.