NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

CAROLE EVANS, SUBSTITUTED FOR JAMES E. 

EVANS,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-1487

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-6676, Judge Joseph L. Toth.

______________________ 

Decided: April 12, 2022

______________________ 

CAROLE EVANS, Weiner, AR, pro se.

 ASHLEY AKERS, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by 

BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M.

MCCARTHY; CHRISTOPHER O. ADELOYE, BRIAN D. GRIFFIN, 

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC. 

Case: 21-1487 Document: 44 Page: 1 Filed: 04/12/2022
2 EVANS v. MCDONOUGH

 ______________________ 

Before CHEN, SCHALL, and STOLL, Circuit Judges.

PER CURIAM. 

Appellant Carole Evans, substituting for her deceased 

spouse James E. Evans, appeals the decision of the Court 

of Appeals for Veterans Claims (Veterans Court) affirming 

a decision of the Board of Veterans’ Appeals (Board) granting Mr. Evans an effective date of December 28, 20101 for 

service-connected coronary artery disease (CAD). The Veterans Court held that the Board did not clearly err in finding that the earliest CAD diagnosis occurred on the 

awarded effective date. The Veterans Court also found 

that the Board did not err in concluding that a 1969 submission of Department of Defense Form 664 did not constitute an application for benefits. On appeal, Mrs. Evans 

argues that the Veterans Court erred in both determinations. Because Mrs. Evans raises only factual disputes, we 

dismiss the appeal for lack of subject matter jurisdiction.

BACKGROUND

Mr. Evans served on active duty in the United States 

Army from January 1968 to October 1969, during which he 

deployed to Vietnam. Evans v. Wilkie, No. 19-6676, 2020 

WL 6734865, at *1 (Vet. App. Nov. 17, 2020) (Veterans 

Court Decision). Upon separation, Mr. Evans signed Form 

664, indicating that he had filed a claim for benefits with 

1 The Veterans Court and Board sometimes refer to 

an effective date of December 29, 2010. This appears to be 

a typographical error as the referenced document is dated 

December 28, 2010. For consistency, we use a corrected 

date of December 28, 2010. As the Government notes in its 

responsive brief, this difference of one day would not affect 

the award or calculation of benefits. Appellee’s Br. 4 n.4 

(citing 38 U.S.C. § 5111(a)). 

Case: 21-1487 Document: 44 Page: 2 Filed: 04/12/2022
EVANS v. MCDONOUGH 3

the Department of Veterans Affairs (VA). Appx. 30.2 The 

record does not indicate that he filed additional documents 

with the VA at or around that time. Mr. Evans did, however, file a claim for benefits in September 2006 that the 

VA ultimately denied. Appx. 8; Appx. 49. In that filing, 

Mr. Evans identified CAD as one service-connected disability. Appx. 54. Only later, in August 2010, did the VA add 

CAD to the list of conditions presumed to be service-connected due to herbicide exposure. 38 C.F.R § 3.309(e). In 

response, the VA awarded Mr. Evans benefits and assigned 

a ten-percent disability rating for CAD effective May 31, 

2011, and a thirty-percent disability rating for CAD effective September 28, 2011. Veterans Court Decision, at *1 

n.1.

Mr. Evans continued to challenge the effective date in 

subsequent proceedings and, in 2019, Mr. Evans appealed 

the VA determinations to the Board. Id. at *1. The Board 

concluded that Mr. Evans was first diagnosed with CAD on 

December 28, 2010. Id.; Appx. 8; Appx. 70–72. Accordingly, the Board awarded Mr. Evans retroactive benefits to 

that date. Appx. 6, 23–24. Mr. Evans then appealed the 

Board’s effective date determination to the Veterans Court, 

which affirmed. Veterans Court Decision, at *1. The Veterans Court found that the Board did not clearly err in 

awarding an effective date of December 28, 2010 “because, 

although the veteran filed a claim in 2006, there was no 

evidence of CAD at that time” and “entitlement to service 

connection [did not] arise until his disability manifested in 

2010.” Id. Similarly, the Veterans Court found that “[t]he 

Board did not err in its assessment that the checked block 

on the veteran’s DA Form 664 did not constitute a claim or 

otherwise suffice to demonstrate that a claim existed.” Id.

at *2. This appeal followed.

2 All Appx. citations refer to the appendix filed concurrently with Appellant’s brief.

Case: 21-1487 Document: 44 Page: 3 Filed: 04/12/2022
4 EVANS v. MCDONOUGH

On appeal, Mrs. Evans, substituting for her deceased 

spouse, argues that Mr. Evans was entitled to an earlier 

effective date of October 4, 1969, the date of his separation. 

Appellant’s Br. 5, 11. The Veterans Court, Mrs. Evans argued, erred by “interpreting [the] October 4, 1969 submission as not filing a claim for VA Benefits” and 

“determin[ing] that Claimant-Appellant’s CAD was not 

disabling prior to December 2[8], 2010.” Id. at 5–6, 12. 

Mrs. Evans also argues that the VA failed to fulfill its 

“Duty to Assist” between 1969 and 2006, resulting in delay 

and an incomplete record. Id. at 10–13. 

DISCUSSION

Our authority to review decisions of the Veterans Court 

is limited by statute. Goodman v. Shulkin, 870 F.3d 1383, 

1385 (Fed. Cir. 2017). While we have jurisdiction to “review the legal determinations of the Veterans Court,” we 

“may not review the Veterans Court’s factual findings or 

its application of law to facts absent a constitutional issue.” 

Singleton v. Shinseki, 659 F.3d 1332, 1334 (Fed. Cir. 2011); 

see also 38 U.S.C. § 7292. Accordingly, where an appeal 

challenges factual determinations by the Veterans Court, 

we lack subject matter jurisdiction and dismissal is required. 

Mrs. Evans identifies two errors in the Veterans Court 

decision: (1) the effective date of Mr. Evans’s CAD disability, and (2) whether Form 664 constitutes the filing of a 

claim with the VA. We have consistently treated both 

questions as issues of fact not subject to our review. For 

example, in Butler v. Shinseki we held that “when a disability was claimed or service connection established” are 

questions of fact “not subject to our review.” 603 F.3d 922, 

926 (Fed. Cir. 2010); see also Echevarria-North v. Shinseki, 

437 F. App’x 941, 945 (“The Board’s determination of an 

effective filing date is a finding of fact that the Veterans 

Court reviews for clear error, and it is a factual determination that is unreviewable by this court.” (citing Butler, 603 

Case: 21-1487 Document: 44 Page: 4 Filed: 04/12/2022
EVANS v. MCDONOUGH 5

F.3d at 926)). There, like here, the appellant sought an 

earlier effective date than the date granted by the Board 

and subsequently affirmed by the Veterans Court. Butler, 

603 F.3d at 925. Similarly, we have found that “the determination as to whether evidence of record establishes that 

the claimant filed a claim for benefits” is a factual determination outside of this court’s jurisdiction. Harris v. 

Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013); see also Bonner v. Nicholson, 497 F.3d 1323, 1328 (Fed. Cir. 2007) (finding that the interpretation of the scope of an earlier claim 

“is essentially a factual inquiry . . . beyond our jurisdiction”). While Mrs. Evans asserts that “[t]he issues on appeal are entirely issues of law,” Appellant’s Br. 1, this 

appeal does not present a “challenge to the validity of any 

statute or regulation or any interpretation thereof” nor any 

constitutional question subject to our review, 38 U.S.C. § 

7292. 

Mrs. Evans’s arguments that the VA failed to fulfill its 

“duty to assist” Mr. Evans in filing and substantiating his 

claim depend on the unreviewable factual determination 

that Mr. Evans did not file a claim on October 4, 1969. Appellant’s Br. 13; see also Sellers v. Wilkie, 965 F.3d 1328, 

1338 (Fed. Cir. 2020) (explaining that the “duty to assist 

begins upon receipt of a formal [or informal] claim that 

identifies the medical condition for which benefits are 

sought”). Accordingly, we cannot address that issue. 

CONCLUSION

We have considered Mrs. Evans’s remaining arguments and do not find them persuasive. For the foregoing 

reasons, we dismiss the appeal for lack of subject matter 

jurisdiction.

DISMISSED

COSTS

No costs.

Case: 21-1487 Document: 44 Page: 5 Filed: 04/12/2022