NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

TITUS D. MILBURN, SR., 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7043 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case No. 09-2608, Chief Judge Bruce 

E. Kasold. 

__________________________ 

Decided: March 13, 2012 

__________________________ 

EVA I. GUERRA, Law Offices of Eva I. Guerra, of White 

Lake, Michigan, for claimant-appellant. 

VINCENT D. PHILLIPS, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondentappellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, 
MILBURN v. DVA 2

and STEVEN J. GILLINGHAM, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant 

General Counsel, and LARA K. EILHARDT, Attorney, 

United States Department of Veterans Affairs, of Washington, DC. 

__________________________ 

Before LINN, PROST, and WALLACH, Circuit Judges. 

PER CURIAM. 

Titus D. Milburn, Sr. appeals the decision of the 

United States Court of Appeals for Veterans Claims 

(“Veterans Court”) affirming the Board of Veterans’ 

Appeals (“Board”) denying his earlier effective date 

(“EED”) claim for service-connected paranoid schizophrenia. Because we cannot review the Veterans Court’s 

findings of fact and application of law to fact, we dismiss 

Mr. Milburn’s claim for lack of jurisdiction. 

I. 

Mr. Milburn served on active duty from November 

1973 to April 1974, from August 1975 to January 1976, 

and from January 1979 to March 1979. Believing he had 

a nervous condition, Mr. Milburn applied on July 7, 1977 

for service-connected benefits to a Veterans Affairs (“VA”) 

Regional Office (“RO”). The RO denied Mr. Milburn’s 

claim in November 1977. On August 6, 1996, Mr. Milburn 

successfully applied to re-open his claim for benefits. In 

January 2005, the RO granted Mr. Milburn a 100-percent 

service-connected benefit rating for paranoid schizophrenia. In May 2005, the RO adjusted the effective date of 

that award to August 6, 1996. Mr. Milburn subsequently 

filed a Notice of Disagreement claiming that he was 

entitled to an EED of his benefit. The Board denied Mr. 

Milburn’s EED claim, and he appealed the Board’s decision to the Veterans Court where the parties filed a joint 
3 MILBURN v. DVA

motion to remand the case back to the Board. In that 

motion, the parties asked the Board “to consider whether 

an EED was available pursuant to 38 C.F.R. §§ 3.156(c) 

(2005) and 3.400(q)(2) (2005)” and stated that “the Board 

should also consider whether an EED is available under 

section 3.156(c) in light of any service medical records 

that may have been received after the original November 

1977 denial of service connection.”1 The Veterans Court 

granted the joint motion. On remand, in a decision dated 

June 9, 2009, the Board again denied Mr. Milburn’s EED 

claim. Mr. Milburn appealed the Board’s decision and the 

Veterans Court affirmed. Milburn v. Shinseki, Case No. 

09-2608, 2010 WL 3839456, at *2 (Vet. App. Oct. 4, 2010). 

Mr. Milburn filed a timely notice of appeal with this court. 

II. 

We have limited jurisdiction to review rulings of the 

Veterans Court. The jurisdictional statute, 38 U.S.C. § 

7292, authorizes review of “all relevant questions of law,” 

id. at 7292(d)(1), but provides that except to the extent 

 1 Section 3.156(c) (2005) states: 

Where the new and material evidence consists of 

a supplemental report from the service department, received before or after the decision has become final, the former decision will be 

reconsidered by the adjudicating agency of original jurisdiction . . . . The retroactive evaluation of 

disability resulting from disease or injury subsequently service connected on the basis of the new 

evidence from the service department must be 

supported adequately by medical evidence. 

Where such records clearly support the assignment of a specific rating over a part or the entire 

period of time involved, a retroactive evaluation 

will be assigned accordingly except as it may be 

affected by the filing date of the original claim. 

38 C.F.R. § 3.156(c) (2005).
MILBURN v. DVA 4

that an appeal presents a constitutional issue, we 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,” id. at 7292(d)(2). 

On appeal, Mr. Milburn argues that the Veterans 

Court erred in affirming the Board’s decision for three 

reasons. First, Mr. Milburn contends that the Board 

erred when it ruled that a report from non-judicial punishment he received in 1975 under Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815 (the 

“Article 15 report”), was not a relevant official service 

department record to warrant an EED. Second, Mr. 

Milburn avers that the Board failed to properly apply 

Sections 3.156(c) and 3.400(q)(2) when it did not find the 

Article 15 report and five Reports of Medical History he 

completed in 1975 to be “new and material” documents 

warranting an EED. Third, Mr. Milburn argues that the 

Veterans Court’s decision should be reversed because the 

Board failed to comply with the remand order when it did 

not address the Reports of Medical History in its June 

2009 decision. 

To begin, we do not have jurisdiction to review 

whether the Article 15 report was relevant to Mr. Milburn’s benefit or EED claim. This court does not have 

jurisdiction to review the Veterans Court’s factual determinations or the application of facts to the law. 38 U.S.C. 

§ 7292(d)(2). Mr. Milburn claims that the Article 15 

report shows that he was struck in the head by a fellow 

soldier, a service-connected injury that led in part to his 

disability. The Board, however, looked to the Article 15 

report and found that “the four corners of the report does 

not reveal any reference whatsoever to a beating.” The 

Board’s determination, which was upheld by the Veterans 

Court, is a fact-based evidentiary determination beyond 
5 MILBURN v. DVA

the scope of our review.2 Similarly, we do not have jurisdiction to review the Veterans Court’s determination that 

the Board did not err in ruling that the Article 15 report 

and Reports of Medical History are not “new and material.” Whether the documents constituted “new and 

material” evidence is a question of fact or a question of 

fact applied to law. See Barnett v. Brown, 83 F.3d 1380, 

1383-84 (Fed. Cir. 1996). Thus, we do not have jurisdiction to review these determinations. 

Lastly, this court does not have jurisdiction to review 

the Veterans Court’s decision that the Board complied 

with its remand order. To determine whether the Board 

complied with the remand would require us to look to a 

factual determination. See Dyment v. Principi, 287 F.3d 

1377, 1381 (Fed. Cir. 2002) (holding that whether there 

was compliance with a remand order “challenges the 

decision of the Veterans Court on a factual matter, as to 

which this court does not have jurisdiction”). Thus, we 

may not entertain Mr. Milburn’s third argument. 

 2 There is no constitutional issue in this case that 

would allow us to review the Board’s factual findings. See

38 U.S.C. § 7292(d)(2). Mr. Milburn contends the Board’s 

failure to grant him an EED based on the Article 15 

report and Reports of Medical History amounts to a 

violation of his due process rights. The Board has considered Mr. Milburn’s EED claim based on all evidence 

deemed relevant, new, and material. The fact that the 

Board found adverse to Mr. Milburn is not a constitutional deficiency. See Helfer v. West, 174 F.3d 1332, 1335 

(Fed. Cir. 1999) (holding that a “due process” label on a 

contention that the veteran should have prevailed in a 

claim is not a valid constitutional issue). 
MILBURN v. DVA 6

III. 

 Because Mr. Milburn’s appeal asks this court to review 

factual determinations, we dismiss for lack of jurisdiction. 

DISMISSED. 

No costs.