NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-7192 

RICHARD W. EVANS, 

Claimant-Appellant, 

v. 

GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs, 

Respondent-Appellee. 

 Richard W. Evans, of Apex, North Carolina, pro se. 

 Maame A.F. Ewusi-Mensah, Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent-appellee. With 

her on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, 

Director, and Donald E. Kinner, Assistant Director. Of counsel on the brief were Michael J. 

Timinski, Deputy Assistant General Counsel, and Jamie L. Mueller, Attorney, United 

States Department of Veterans Affairs, of Washington, DC. 

 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge Ronald M. Holdaway 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-7192 

RICHARD W. EVANS, 

Claimant-Appellant, 

v. 

GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs, 

Respondent-Appellee. 

_______________________ 

DECIDED: December 4, 2007 

_______________________ 

Before LOURIE, BRYSON and MOORE, Circuit Judges. 

PER CURIAM. 

Mr. Richard W. Evans appeals the final decision of the Court of Appeals for 

Veterans Claims (Veterans Court) affirming the Board of Veteran’s Appeals’ (BVA’s) 

determination that Evans had not established entitlement for post-traumatic stress 

disorder (PTSD) earlier than the date he filed his claim for benefits. See Evans v. 

Nicholson, No. 05-3372, 2007 WL 878438 (Vet. App. Mar. 20, 2007). We affirm. 

BACKGROUND 

Evans served in the Army between February 1969 and December 1971. His 

service included a tour of duty in Vietnam. Evans met with a doctor in October 2003 

and was diagnosed with depression and PTSD, both of which were attributable to his 

service. During this examination, Evans informed the doctor that his symptoms had 

existed since 1971. 
On May 21, 2003, Evans filed a claim for veteran’s benefits for his serviceconnected PTSD. Benefits were awarded effective as of that date. In October 2003, 

Evans filed a claim to have his rating increased from 30% to 100% disabling. That 

claim was granted and his rating was increased. 

Evans believed that he was entitled to an effective date earlier than the May 21, 

2003 filing date of his original claim for benefits. Evans contended that he was entitled 

to an effective date of May 21, 2002 under 38 U.S.C. § 5110(g). He argued that the 

addition of PTSD to the rating schedule on April 11, 1980 constituted a liberalizing act 

that granted him entitlement to compensation. He maintained this position before the 

BVA and the Veterans Court. Both tribunals concluded that Evans had not established 

that he met all of the requirements for entitlement to benefits as of the April 11, 1980 

effective date under the applicable regulation, 38 C.F.R. § 3.114(a). 

Evans appeals this determination. We have jurisdiction under 38 U.S.C. § 7292. 

DISCUSSION 

The effective date for an award based on an original claim “shall not be earlier 

than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). Section 5110(g) 

provides for an exception to this otherwise general rule. That section provides: 

Subject to the provisions of section 5101 of this title, where compensation

. . . is awarded . . . pursuant to . . . administrative issue, the effective date 

of such award or increase shall be fixed in accordance with the facts found 

but shall not be earlier than the effective date of the Act of administrative 

issue. In no event shall such award or increase be retroactive for more 

than one year from the date of application therefor or the date of 

administrative determination of entitlement, whichever is earlier. 

38 U.S.C. § 5110(g) (emphasis added). The Secretary has promulgated a regulation, 

found at 38 C.F.R. § 3.114(a), to implement this provision: 

2007-7192 2
Where . . . compensation . . . is awarded . . . pursuant to . . . a liberalizing 

VA issue approved by the Secretary or by the Secretary’s direction, the 

effective date of such award of increase shall be fixed in accordance with 

the facts found, but shall not be earlier than the effective date of the . . . 

administrative issue. Where . . . compensation . . . is awarded . . . 

pursuant to a liberalizing . . . VA issue which became effective on or after 

the date of its enactment or issuance, in order for a claimant to be eligible 

for a retroactive payment under the provisions of this paragraph, the 

evidence must show that the claimant met all eligibility criteria for the 

liberalized benefit on the effective date of the . . . VA issue and that such 

eligibility existed continuously from that date to the date of claim or 

administrative determination of entitlement. 

38 C.F.R. § 3.114(a). 

 Here, the BVA concluded that Evans had not established that he “met all 

eligibility criteria for the liberalized benefit on the effective date of the . . . VA issue.” 

Evans challenges the validity of 38 C.F.R. § 3.114(a). Evans contends 

§ 3.114(a) is contrary to § 5110(g). Specifically, Evans argues that under the statute he 

was entitled to retroactive compensation because the facts established that he has 

suffered symptoms of PTSD since 1971 and that the regulation is improper because it 

effectively requires him to prove that he had PTSD “before PTSD existed.” 

 Review of factual issues are beyond our limited jurisdiction. See 38 U.S.C. 

§ 7292(d)(2) (“Except to the extent that an appeal under this chapter presents a 

constitutional issue, the Court of Appeals 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.”). Therefore, we are without the power to review the record to 

determine whether Evans can establish that he has continuously suffered from PTSD 

since April 11, 1980, the date PTSD was added to the rating schedule.1

 1

 We reject Evans’ argument that the regulation requires him to establish 

that he had PTSD before it existed. Evans had to establish that he exhibited symptoms 

2007-7192 3
2007-7192 4

 We can, however, review Evans’ challenge to the validity of § 3.114(a). See 38 

U.S.C. § 7292(d)(1). We interpret statutes and regulations de novo. See, e.g., 

Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir. 2007); McCay v. Brown, 106 

F.3d 1577, 1579 (Fed. Cir. 1997). 

 We conclude that the requirement that a claimant show that they “met all 

eligibility criteria for the liberalized benefit on the effective date of the . . . VA issue” 

contained in 38 C.F.R. § 3.114 is consistent with § 5110(g). By its plain terms, section 

5110(g) permits a retroactive award of benefits, not to exceed one year, when 

compensation is awarded because of an administrative issue. The implementing 

regulation includes this same requirement. For an administrative pronouncement to 

award benefits, the claimant must have been eligible to receive benefits at the time of 

the liberalizing act, thus making the liberalizing act (and not some other occurrence) the 

reason the claimant was eligible for compensation. In this regard, § 3.114 is a valid 

interpretation of § 5110(g). See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 

U.S. 837, 842-43 (1984). Moreover, we see nothing to the contrary in the case of 

McCay v. Brown, 9 Vet. App. 183 (1996), which addresses § 3.114(a) solely in the 

context of a retroactive liberalizing act. Therefore, the judgment of the Veterans Court 

is affirmed. 

 

consistent with a diagnosis of PTSD at the time of the liberalizing act, not that he was in 

fact diagnosed with PTSD at the time of the liberalizing act.