NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

MARVIN E. SANDERS,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2022-1252

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-4867, Judge Scott Laurer.

______________________ 

Decided: November 9, 2022

______________________ 

MARVIN E. SANDERS, Compton, CA, pro se. 

 ANN MOTTO, Civil Division, Commercial Litigation 

Branch, United States Department of Justice, Washington, 

DC, for respondent-appellee. Also represented by BRIAN M.

BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY; 

AMANDA BLACKMON, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Case: 22-1252 Document: 35 Page: 1 Filed: 11/09/2022
2 SANDERS v. MCDONOUGH

Before REYNA, CHEN, and CUNNINGHAM, Circuit Judges.

PER CURIAM. 

Marvin E. Sanders appeals a decision of the U.S. Court 

of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals’ denial of earlier effective dates for his disability benefits and determining that it lacks jurisdiction 

over Mr. Sanders’ claim of clear and unmistakable error. 

We affirm.

BACKGROUND

Mr. Sanders served on active duty in Vietnam from 

September 1972 to September 1976 and from November 

1977 to October 1981. Government SApp’x 521. While in 

service, Mr. Sanders complained of back pain, headaches, 

and pain in his right eye. See id. at 70; see also Reply Br. 2. 

In August 1986, Mr. Sanders submitted a disability 

claim for back, head, and eye injuries, which was denied by 

the VA Regional Office (“Regional Office”) in November 

1986. See Government SApp’x 70. Mr. Sanders did not appeal that decision and it became final. Id. at 53. 

On September 19, 2005, Mr. Sanders filed a claim for 

disability benefits due to degenerative disc disease (“DDD”) 

of the cervical and lumbar spine. Sanders SApp’x 13-142. 

The Regional Office denied his claim, and Mr. Sanders 

1 “Government SApp’x” refers to the appendix attached to the Government’s Response Brief.

2 “Sanders SApp’x” refers to the appendix attached 

to Mr. Sanders’ Opening Brief. The page numbers refer to 

the electronic filing system page number at the top of each 

page.

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SANDERS v. MCDONOUGH 3

timely appealed to the Board of Veterans’ Appeals 

(“Board”). Id.

In March 2006, Mr. Sanders sought to reopen his August 1986 disability claims for back pain, headaches, and 

pain in his right eye. Government SApp’x 31. The Regional Office denied the request, and Mr. Sanders timely 

appealed. Id. 

On appeal, the Board denied service connection for 

DDD of the lumbar spine. Id. at 63. The Board remanded

Mr. Sanders’ claim of service connection for headaches and 

head injury, as well as DDD of the cervical spine, because 

it found that new and material evidence had been submitted for both of these claims. Id. at 51–67. The Board further determined that Mr. Sanders should undergo a VA 

examination, which was administered on February 17, 

2009. Id. at 46-47, 66. 

On August 20, 2010, the Regional Office granted 

Mr. Sanders’ claim for disability benefits for (1) headaches 

and head injury effective March 31, 2006; (2) DDD of the 

cervical spine effective September 19, 2005; and (3) DDD of 

the lumbar spine effective February 17, 2009. Sanders 

SApp’x 11. Mr. Sanders appealed to the Board, arguing he 

was entitled to an effective date of September 13, 1972, for 

all claims, which the Board denied. Government 

SApp’x 10–26. 

Mr. Sanders appealed to the Court of Appeals for Veterans Claims (“the Veterans Court”). He argued that he 

was entitled to a 1972 effective date and that the November 

1986 rating decision was based on a clear and unmistakable error (“CUE”). Sanders v. McDonough, 2021 WL 

3864370 at *1 (Vet. App. Aug. 31, 2021) (“Decision”). The 

Veterans Court affirmed the Board’s decision denying the 

earlier effective dates and determined that it lacked jurisdiction over Mr. Sanders’ CUE claims. Id. Mr. Sanders 

timely appealed. We have jurisdiction over appeals from 

the Veterans Court pursuant to 38 U.S.C. § 7292(a).

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4 SANDERS v. MCDONOUGH

STANDARD OF REVIEW

We review the Veterans Court’s legal determinations 

de novo. Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed. 

Cir. 2014). Our authority over Veterans Court decisions is 

limited. We have no authority to engage in fact finding. 38 

U.S.C. § 7292(d)(1). We affirm the Veterans Court unless 

the decision is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; 

(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” Id. 

DISCUSSION

We affirm the Veterans Court’s determination that 

Mr. Sanders was not entitled to earlier effective dates. Decision at *1–3. Generally, “the effective date of an award 

based on an initial claim . . . shall not be earlier than the 

date of receipt of application therefor.” 38 U.S.C. 

§ 5110(a)(1). Accordingly, Mr. Sanders is entitled to an effective date that corresponds with the day each of his disability claims at issue here were received. We affirm the 

Veterans Court’s determination that the effective date for 

the DDD of the cervical spine is September 19, 2005—the 

date that he filed the initial claim. Decision at *2–3. Regarding Mr. Sanders’ remaining claims, we have held that 

“the earliest effective date for an award on a reopened 

claim is the date of the request for reopening, not the date 

of the original claim.” Ortiz v. McDonough, 6 F.4th 1267, 

1270–71 (Fed. Cir. 2021) (citing Sears v. Principi, 349 F.3d 

1326, 1331 (Fed. Cir. 2003); 38 C.F.R. § 3.400(q)–(r)). We 

thus affirm the Veterans Court’s determination that 

Mr. Sanders is entitled to an effective date for his disability 

benefits for service-connected headaches and head injury 

of March 31, 2006, and its determination that Mr. Sanders 

“could not receive an effective date earlier than [February 

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SANDERS v. MCDONOUGH 5

17, 2009]” for the DDD of the lumbar spine. Decision at 

*2–3. 

Next, Mr. Sanders argues that the Veterans Court 

erred in its decision that it lacked jurisdiction over his CUE 

claims. The Veterans Court determined that it did not 

have jurisdiction over Mr. Sanders’ CUE claims because 

Mr. Sanders failed to file a notice of disagreement alleging 

CUE occurred in his November 1986 rating decision as required under 38 U.S.C. § 7105(a).3 Decision at *4. We have 

held that the Veterans Court has jurisdiction over a CUE 

claim so long as the veteran raised the CUE claim to the 

Regional Office, appealed the adverse decision to the 

Board, and then appealed the Board’s adverse decision to 

the Veterans Court. Andre v. Principi, 301 F.3d 1354, 1361

(Fed. Cir. 2002). Here, Mr. Sanders failed to appeal the 

Board’s decision finding no CUE in the November 1986 

Ratings Decision. Accordingly, we affirm the Veterans 

Court’s determination that it lacks jurisdiction over the

CUE claims.

Mr. Sanders also argues that he was denied due process when he was not provided a physical or mental examination before the November 1986 ratings decision. Mr. 

Sanders did not allege that his due process rights had been 

violated in the Veterans Court. We, therefore, do not have 

jurisdiction to review factual questions of whether Mr. 

Sanders received a physical or mental evaluation before 

November 1986. Johnson v. Derwinski, 949 F.2d 394, 395 

3 We note, as did the Veterans Court, that Mr. Sanders has filed other notices of disagreement raising CUE 

with respect to some of his other RO rating decisions. Decision at *4. However, as the Veterans Court explained, 

these previous notices of disagreement did not consider 

whether there was CUE in the November 1986 rating decision, and therefore did not properly begin the appeal process with respect to this issue. 

Case: 22-1252 Document: 35 Page: 5 Filed: 11/09/2022
6 SANDERS v. MCDONOUGH

(Fed. Cir. 1992) (“[T]his court may not generally review 

challenges to factual determinations.”). In addition, as a 

general rule, this court may not consider an argument 

raised for the first time on appeal. See Boggs v. West, 188 

F.3d 1335, 1337–38 (Fed. Cir. 1999). With respect to due 

process claims that were not presented below, we exercise 

discretion whether to hear a due process argument on appeal. In this case, we decline to exercise such discretion. 

We note that Mr. Sanders is not prohibited from seeking a CUE claim in the November 1986 ratings decision. A 

“request for revision of a decision of the Secretary based on 

clear and unmistakable error may be made at any time after that decision is made.” Andre, 301 F.3d at 1362 (quoting 38 U.S.C. § 5109A(d)). 

CONCLUSION

We affirm the Veterans Court’s affirmance of the 

Board’s decision denying Mr. Sanders an earlier effective 

date than March 31, 2006, for service-connected headaches 

and head injury; September 19, 2005, for service-connected 

DDD of the cervical spine; and February 17, 2009, for service-connected DDD of the lumbar spine. We also affirm

the Veterans Court’s finding that it lacks jurisdiction over 

Mr. Sanders’ CUE claims. 

AFFIRMED

COSTS

No costs.

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