NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7303 JAMES N. CHEST, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Ryan C. Morris , Sidley Austin LLP, of Wash ington, DC, argued for claimantappellant. With him on the brief was Stephen B. Kinnaird . Of counsel on the brief was Barton F. Stichman , National Veterans Legal Services Program, of Washington, DC. Allison Kidd-Miller , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With her on the brief were Jeffrey S. Bucholtz , Acting Assist ant Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Of counsel on the brief were David J. Barrans , Deputy Assistant Ge neral Counsel, and Ethan G. Kalett , Attorney, Office of the General Co unsel, United States Department of Veterans Affairs, Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Chief Judge William P. Greene, Jr.NOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7303

JAMES N. CHEST, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee,

Appeal from the United States Court of Appeals for Veterans Claims in 05-2241, Chief Judge William P. Greene, Jr.

____________________ DECIDED: July 21, 2008

____________________ Before LOURIE, BRYSON, and PROST, Circuit Judges

. LOURIE, Circuit Judge

. James N. Chest appeals from the United States Court of Appeals for Veterans Claims’ (“Veterans Court”) decision affirming the decision of the Board of Veterans’ Appeals (“Board”) denying Chest a disability rating higher than ten percent for his service-connected hepatitis C. Chest v. Nicholson , No. 05-2241, 2007 U.S. App. Vet. Claims LEXIS 884 (Vet. App. Ma y 31, 2007). Because we find that the Veterans Courtapplied the correct legal st andard and that other appeal ed issues are beyond our jurisdiction, we affirm in part and dismiss in part

. BACKGROUND Chest is a veteran of the United Stat es Army, having honorably served from December 1970 to August 1973. On March 23, 2000, a Department of Veterans Affairs (“VA”) regional office (“RO”) found Chest’s hepatitis C to be service-connected, but assigned a noncompensable rating. Chest appealed that rati ng, and, following a Board remand, was granted a VA medical examination to determine the ex tent of his disability. Based on that examination, Chest’s injury was assigned a 10% disability rating. Chest appealed that rating to the Board. After receiving a letter from Chest’s pr ivate physician, Dr. Kleinman, the Board issued a “Development Request” instructing the Board’s case development unit to obtain a release form from Chest and treatment records from Dr. Kleinman. In May 2003, VA received an “Authorization and Consent Form” (“the May 2003 authorization”) from Chest authorizing the VA to obtain Dr. Kleinman’s records. Chest wrote on the form, “this is the last time I respond or tr y to prove my case.” In September 2003, the Board once again remanded Chest’s case to t he RO. Among other things, the Board’s remand order (“the 2003 remand order”) inst ructed the RO to use the May 2003 authorization to “request all m edical treatment records from Dr. Martin S. Kleinman.” In March 2004, the RO wrote to Chest in forming him of the status of his case. The letter also requested a new authorizati on form, as the May 2003 authorization was not compliant with the recently enacted Health Insurance Portability and Accountability Act (“HIPAA”). The RO never received an updated authorization form from Chest.

2007-7303 2In March 2005, the RO denied Chest a disabili ty rating in excess of ten percent. On appeal, the Board found that the May 2003 authorizat ion form had been invalidated by HIPAA and that Chest had not responded to VA’s request for an updated form. The Board found that because Chest had failed to newly authorize the RO to obtain Kleinman’s medical records, it had substantially complied with the 2003 remand order. Thus, the Board concluded t hat Chest had not established that a rating higher than ten percent was warranted. The Veterans Court affirmed the Board’s decision. The court held that because Chest had not supplied the VA with a HIPAA-compliant au thorization form, the VA had not failed to comply with the 2003 remand or der. Furthermore, the court found that the VA had no duty to inform Chest of its inab ility to obtain his records because Chest had failed to properly reauthorize VA to obtain them. Thus, the court concluded, Chest had not demonstrated that t he Board had committed any reversible error. Chest timely appealed the court’s decision. We have jurisdiction pursuant to 38 U.S.C. § 7292. DISCUSSION The scope of our review of a final decisi on from the Veterans Court is limited by
statute. See 38 U.S.C. § 7292. Under § 7292(a) we may review a decision by the Veterans Court with respect to the validity of “ any statute or regul ation . . . or any interpretation thereof (other than a determinati on as to a factual matter) that was relied on by the [Veterans] Court in making the decisi on.” Absent a constitutional issue, we may not review challenges to factual determinati ons or challenges to the application of a law or regulation to facts. Id. § 7292(d)(2). We review issues of law over which we

2007-7303 3have jurisdiction de novo

. Andrews v. Nicholson , 421 F.3d 1278, 1281 (Fed. Cir. 2005) (citing Wagner v. Principi , 370 F.3d 1089, 1091 (Fed. Cir. 2004)). On appeal Chest makes two primary arguments. First, he argues that “substantial compliance” with a Board remand or der is legally insufficient and that only “complete compliance” with an order fulfills VA’s duty to assist. Chest’s second argument is that the Ve terans Court erred as a matter of law in affirming the Board’s determination that the RO substantially co mplied with the 2003 re mand order. That argument relies on this court having juri sdiction to review questions of remand compliance. As for the standard of remand compliance required by law—a question over which jurisdiction is undisputed—we hold t hat substantial compliance is a correct standard. Chest appears to ar gue that “complete” complianc e or “absolute” compliance with a Board remand is required for the VA to fulfill its duty. Chest Br. at 19, 20. According to Chest’s reasoning, the subst antial compliance standar d applies only to cases involving minor deficiencies while the present case involves an absolute deficiency and therefore requires complete compliance. Chest Br. at 23, 24. We are not persuaded that the Veterans Court adopted or applied an incorrect legal standard. In essence, C hest is asking this court to evaluate whether the Veterans Court was correct in finding substantial co mpliance. Chest’s argument appears to be essentially an attempt to argue the merits of the sufficiency decision under the guise of a legal standard. We lack jurisdiction to analyze the sufficiency decision, as discussed below. Substantial compliance is a corre ct standard from which to judge remand

2007-7303 4compliance, and we therefore affirm the Veterans Court’s decision on that legal question. Chest’s other principal argument is th at the Veterans Court erred in its determination that the RO substantially complied with the Board’s remand order. However, we do not have jurisdiction to decide that question. It is statutorily established that this court may not review challenges to a factual determination of the Veterans Court or challenges to a law or regulation as applied to facts by the Veterans Court. 38 U.S.C. § 7292(d)(2). Chest argues that the Veterans B enefits Act of 2002 am ended 38 U.S.C. § 7292(a) by expanding the matters over which this court has jurisdiction to include review of decisions concerning a rule of law. Veterans Benefits Act of 2002, Pub. L. No. 107- 330, 116 Stat. 2820. However, that amendment does not benefit Chest. The full ramifications of that change have not been explored by this court, see Szemraj v. Principi , 357 F.3d 1370, 1375 (Fed. Cir. 2004) (“t he effect of the 2002 amendment has not yet been fully determined”), but its languag e gives little indication that it was intended to override the existing preclusion agai nst reviewing applications of law to fact, and that is essentially what Chest is argui ng here. Chest argues that the Veterans Benefits Act expanded this court’s jurisdiction to include the review of remand decisions in which the underlying facts are not in disput e. In so arguing, he principally relies on
two cases: Bailey v. Principi , 351 F.3d 1384 (Fed. Cir. 2003) and Szemraj 357 F.3d 1370 (finding that jurisdiction exists when the case concerns “whether the legal requirement of a statute or regulation has been correctly interpreted in a particular context where the relevant facts are not in dispute”). He al so relies on those cases to

2007-7303 52007-7303 6 overcome this court’s holding in Dyment v. Principi , where we held that we lacked jurisdiction to review whether a specialist “adequately comp lied with the remand order.” 287 F.3d 1377, 1381 (Fed. Cir. 2002). While Bailey and Szemraj hold that we may review t he interpretation of a legal requirement of a statute or r egulation in cases in which t he facts are undisputed, such authority only involves interpretation of a stat ute, regulation, or ru le of law in such cases. In contrast, the present case is on e in which factual issu es are so intertwined with the disputed legal conclusi on drawn by the Veterans Co urt that a reviewing court would have to apply the statute to the facts. The substantive question at issue in Chest’s appeal—whether or not the remand or der was substantially fulfilled—is not a question that can be reviewed without our examin ing the Veterans Court’s application of law to fact, a task that we are prohibited fr om undertaking. While the exact contours of our jurisdiction following the Veterans Bene fits Act are as yet unexplored, Chest’s appeal of the Board’s remand compliance determination is beyond this court’s jurisdiction under 38 U.S.C. 729 2(d)(2). We therefore dism iss that portion of Chest’s appeal for lack of jurisdiction. We have reviewed Chest’s remaining ar guments and found them to be beyond our jurisdiction. CONCLUSION Accordingly, we affirm in part and dismiss in part the Veterans Court’s decision affirming the Board’s denial of Chest’s request for an increased disability rating.
AFFIRMED IN PART AND DISMISSED IN PART