NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-7040 CLAIBORNE MERRITT, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Claiborne Merritt , of Homer, Louisiana, pro se. Gregg M. Schwind , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent-appellee. With him on the brief were Michael F. Hertz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Mark A. Melnick , Assistant Director. Of counsel on the brief were Michael J. Timinski , Deputy Assistant G eneral Counsel, and Rachael T. Shenkman , Attorney, United States Department of Ve terans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Lawrence B. HagelNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-7040

CLAIBORNE MERRITT, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. Appeal from the United States Court of Appeals for Vete rans Claims in 07-1625.

_________ __________________ DECIDED: July 9, 2009

_________ __________________ Before LOURIE, RADER, and MOORE, Circuit Judges

. PER CURIAM. Claiborne Merritt appeals from a decision of the U.S. Cour t of Appeals for Veterans Claims (Veterans Court), Merritt v. Peake , No. 07-1625 (Vet. App. Nov. 13, 2008), affirming a Board of Vete rans’ Appeals (Board) decisio n denying entitlement to an earlier effective date of service connection for post-traumatic stress disorder (PTSD). For the reasons discussed below, we affirm

. Mr. Merritt served on active duty in the U.S. Army from June 1976 to October 1988 and from November 1990 to June 1991. He filed a claim for service connection for PTSD in 1994 and submitted a Statement in Support of Claim in March 1995. In October 1995, the Department of Veterans Affairs (VA) R egional Office (RO) informedMr. Merritt that his service medical records were unavailable and requested that he provide information to confirm his alleged stressors. In Januar y 1996, the RO denied service connection for PTSD, citing no evidence of “specific dates or places of traumatic in-service stressful events.” The RO deni ed service connection in subsequent rating decisions and eventually mailed an Augus t 1997 rating decision to Mr. Merritt at a homeless shelter in Shreveport, Louisiana. Mr. Merritt did not appeal this rating decision. On September 13, 1999, the RO received a letter from Mr. Merritt describing his psychiatric and financial problems. The RO construed his letter as a request to reopen the claim for service connection for PTSD. In response to a PTSD questionnaire sent by the RO, Mr. Merritt described seeing and sm elling the bodies of dead Iraqi soldiers on a road called “Hell Alley” in February 1991. The RO denied Mr. Merritt’s claim in January 2001 after the U.S. Armed Services C enter for Research of Units Records was unable to verify that Mr. Merritt traveled th is road. Mr. Merritt filed a Notice of Disagreement and later appealed to the Board. After resolving all doubt in Mr. Merritt’s favor, the Board granted service connection for PTSD. The RO then assigned a 30% disability rating effective September 13, 1 999. The RO later increased his rating for PTSD to 100% but denied his request for an ear lier effective date. Mr. Merritt appealed. The Board denied an earlier effective date, and the Veterans Court affirmed. The Board found that (1) the RO’s August 1 997 rating decision bec ame final when Mr. Merritt did not appeal and (2) the RO first re ceived Mr. Merritt’s request to reopen his claim on September 13, 1999. Accordingly, the Board conc luded that Mr. Merritt was not entitled to an effective date prior to September 13, 1999—i .e., the date of Mr.

2009-7040 2Merritt’s request to r eopen his previously denied claim for service connection. Mr. Merritt then advanced numerous arguments on appeal to the Ve terans Court, including: (1) that the RO’s August 1997 rating decision never became final because he never received a copy of the rating decision, (2) t hat the August 1997 decision contains clear and unmistakable error (CUE), and (3) that hi s due process rights were violated at the time of discharge from military service. The Veterans Court, citing Mindenhall v. Brown , 7 Vet. App. 271, 274 (1994) and Hyson v. Brown , 5 Vet. App. 262, 265 (1993), explained that the RO was required only to mail a notice of the August 1997 decision and that Mr. Merritt was required to keep the VA informed of a reliable address for receiving such notice. Because Mr. Merri tt admitted that he was homeless and living part-time at the Shreveport homeless shelter to which the RO mailed the August 1997 rating decision, the Veterans Court conclud ed that the VA properly discharged its duty to notify Mr. Merritt of its dec ision. Furthermore, the Veterans Court held that it lacked jurisdiction to hear Mr. Merritt’s argument s regarding CUE and due pr ocess because he never raised them before the Board. The Veterans Court thus affirmed the Board’s decision maintaining an effect ive date of Sept ember 13, 1999. Mr. Merritt appeals from the Veterans Court’s decision, and we have jurisdiction under 38 U.S.C. § 7292(c). Our ju risdiction is limited to consi dering “challenge[s] to the validity of a statute or regulation or any interpretati on thereof” and to “interpret[ing] constitutional and statutory provisions, to the extent presented and necessary to a decision.” Id. Absent a constitutional issue, we ca nnot review factual determinations or “challenge[s] to a law or regul ation as applied to the facts of a particular case.” Id. § 7292(d)(2).

2009-7040 32009-7040 4 On appeal, Mr. Merritt asserts that it was un fair and arbitrary to send notification to the homeless shelter. It is certainly tr ue that the RO was required to notify Mr. Merritt of the RO’s August 1997 rating decision, including an explanation of the procedure for obtaining review of the decisi on, under 38 U.S.C. § 5104(a). The VA mailed notice to the last known address for Mr. Merritt, the homeless shelter. As the Veterans Court concluded, the claimant is responsible for keeping the Secretary informed of the address to which notification should be sent. Hyson , 5 Vet. App. at 265. We find no legal error in this case, and we are not permi tted by the limits of our jurisdiction to review factual challenges. We have re viewed Mr. Merritt’s ot her arguments and have determined that they are without merit. For the foregoing reasons, we affirm the decision of the Veterans Court. COSTS No costs.