NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

EARLEE KING, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7133 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 07-1214, Chief Judge William 

P. Greene, Jr. 

__________________________ 

Decided: July 21, 2011 

__________________________ 

JOHN F. CAMERON, JR., of Montgomery, Alabama, argued for claimant-appellant. 

JACOB A. SCHUNK, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, argued for respondentappellee. With him on the brief were TONY WEST, Assis-
KING v. DVA 2

tant Attorney General, JEANNE E. DAVIDSON, Director, 

and MARTIN F. HOCKEY, JR., Assistant Director. On the 

brief were DAVID J. BARRANS, Deputy Assistant General 

Counsel, United States Department of Veterans Affairs, 

of Washington, DC. 

__________________________ 

Before RADER, Chief Judge, LINN and PROST, Circuit 

Judges. 

PROST, Circuit Judge. 

Earlee King appeals from the United States Court of 

Appeals for Veterans Claims’ (“Veterans Court”) decision 

affirming the decision of the Board of Veterans’ Appeals 

(“Board”) establishing May 15, 2000 as the effective date 

for Mr. King’s benefits award. See King v. Shinseki, 23 

Vet.App. 464, 471 (2010). Mr. King argues that the 

Veterans Court erred by failing to require an earlier 

effective date based on March 1995 and June 1997 communications between Mr. King and medical examiners at 

the Department of Veterans Affairs (“VA”). Because we 

find that the Veterans Court committed no reversible 

legal error in affirming the May 15, 2000 effective date, 

and since all other appealed issues extend beyond our 

jurisdiction, we affirm. 

I. BACKGROUND

Mr. King served in the United States Army from February 1980 to October 1983. Believing he had schizophrenia, Mr. King applied in February 1992 for serviceconnected benefits to a Veterans Affairs Regional Office 

(“RO”). The RO denied this claim, however. After an 

appeal, the Board also denied the claim (in August 1994). 

Mr. King chose not to appeal the Board’s decision to the 

Veterans Court. As such, the adjudication became final. 
3 KING v. DVA

On May 15, 2000, Mr. King sought to formally reopen 

his claim for service connection, providing as a basis 

medical records generated during March 1995 and June 

1997 visits to a VA hospital. The Board ultimately reopened the claim, finding that Mr. King had presented 

new and material evidence since the initial 1994 Board 

decision. In 2004, the RO granted Mr. King a service 

connection for schizophrenia with a 100% disability 

rating, effective May 15, 2000 (the date Mr. King formally 

applied to reopen his claim). 

Mr. King, however, believed that he was entitled to an 

earlier effective date because of certain communications 

he made to the VA medical examiners during his March 

1995 and June 1997 hospital visits. In particular, Mr. 

King believed his communications constituted “informal 

claims” under the VA regulations. Therefore, he appealed 

the RO’s decision to the Board. The Board denied Mr. 

King’s request for an earlier effective date because the 

record “d[id] not include any communication from the 

veteran or his representative received prior to May 15, 

2000, that may reasonably be construed as an indication 

that he was seeking to reopen his claim for service connection.” A Veterans Court panel affirmed, concluding 

that none of the records or other evidence associated with 

Mr. King’s March 1995 and June 1997 medical visits 

showed that Mr. King possessed the necessary intent 

required by the VA regulations to warrant an earlier 

effective date. See King, 23 Vet.App. at 471. 

Mr. King timely appealed the Veterans Court’s decision. 
KING v. DVA 4

II. DISCUSSION

This court’s jurisdiction to review decisions by the 

Veterans Court is limited. We have exclusive jurisdiction 

“to review and decide any challenge to the validity of any 

statute or regulation or any interpretation thereof . . . and 

to interpret constitutional and statutory provisions, to the 

extent presented and necessary to a decision.” 38 U.S.C. 

§ 7292(c). Absent a constitutional issue, we lack jurisdiction to 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.” 38 U.S.C. § 7292(d)(2). 

A. 38 C.F.R. § 3.155(A) 

Mr. King asks us to decide whether he is entitled to 

an effective date before May 15, 2000, which is the date 

he filed his request to reopen the final adjudication. The 

effective date for a benefits award stemming from a 

veteran’s request to reopen a final adjudication is typically “the date that the request to reopen was filed.” 

Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) 

(citing 38 U.S.C. § 5110(a)). The VA regulations, however, permit claimants to obtain an earlier effective date 

in certain circumstances. For instance, under 38 C.F.R. 

§ 3.155(a), “[a]ny communication or action, indicating an 

intent to apply for one or more benefits” can qualify as an 

“informal claim” so long as that claim “identif[ies] the 

benefit sought” and is made by “a claimant, his or her 

duly authorized representative, a Member of Congress, or 

some person acting as next friend of a claimant who is not 

sui juris.” Under this court’s precedent, a communication 

qualifies as an informal claim pursuant to § 3.155(a) if 

that communication (1) is written; (2) indicates an intent 

to apply for benefits; and (3) identifies the benefits 

sought. Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. 
5 KING v. DVA

Cir.1999). If these requirements are met, the date of the 

informal claim can serve as the effective date for the 

benefits award provided that the claimant timely submits 

an application form to the VA in accordance with the 

regulation. See 38 C.F.R. § 3.155(a). 

On appeal, Mr. King argues that he asserted an informal claim for benefits under 38 C.F.R. § 3.155(a) 

during both his March 1995 and June 1997 medical visits 

to the VA hospital and is thus entitled to a March 1995 or 

June 1997 effective date. While neither Mr. King nor any 

of the other entities listed in § 3.155(a) who may file on 

behalf of Mr. King submitted a written communication to 

the VA hospital staff during these visits, Mr. King argues 

that he satisfied § 3.155(a) because he communicated his 

intent to file a claim to the VA medical examiners who 

then recorded the contents of these communications in 

their written reports. 

In particular, the report from the March 1995 visit 

states that Mr. King “is N[on-]S[ervice-]C[onnected] but is 

trying.” The June 1997 report states that the “[v]eteran 

wants to file a claim for service connected disability.” If 

these notes show that Mr. King intended to file a claim 

for benefits during his VA hospital visits, as opposed to 

merely informing the medical examiners of his intent to 

file a claim in the future, it might be argued that he could 

enjoy March 1995 or June 1997 as his effective date 

instead of May 15, 2000. 

As the Veterans Court explained, the Board did not 

directly address the March 1995 and June 1997 visits in 

its opinion. King, 23 Vet.App. at 472. The Board simply 

stated that the record “d[id] not include any communication from the veteran or his representative received prior 

to May 15, 2000, that may reasonably be construed as an 
KING v. DVA 6

indication that he was seeking to reopen his claim for 

service connection.” The Veterans Court did discuss the 

medical visits, however, characterizing Mr. King’s communications to the VA examiners as mere “wish[es] or 

desire[s] to obtain service connection.” Id. at 471. The 

court concluded that Mr. King’s statements that he “was 

‘trying’ to obtain service connection and ‘wanted to file’ for 

service connection’ . . . failed to manifest the requisite 

intent to reopen a previously denied schizophrenia service-connection claim.” Id. at 469. As such, the court held 

that the Board’s decision setting May 15, 2000 as the 

effective date was not arbitrary and capricious. Id.

As evident in the Veterans Court’s analysis, determining whether Mr. King’s communications with VA examiners support a finding of intent under § 3.155(a) requires 

considering the facts in the record and discerning what 

Mr. King was thinking when he visited the VA hospital. 

We lack jurisdiction to make findings regarding these 

fact-based issues and, therefore, cannot upset the Veterans Court’s intent ruling. See 38 U.S.C. § 7292(d)(2). As 

a result, we cannot award Mr. King an effective date prior 

to May 15, 2000 based on his argument that he had the 

intent necessary to file an informal claim under § 3.155(a) 

in March 1995 or June 1997. 

In addition to the intent argument, Mr. King asserts 

that the Veterans Court erred because it interpreted 

§ 3.155(a) to only permit the veteran himself (or one of the 

other entities listed in the provision who can file on behalf 

of the veteran) to satisfy the writing requirement. See

Rodriguez v. West, 189 F.3d at 1355 (holding that a communication can only qualify as an informal claim under 

§ 3.155(a) if in writing). Under such an interpretation, a 

writing created by a person not listed in § 3.155(a), such 

as a VA doctor, arguably would not qualify as an informal 
7 KING v. DVA

claim under the regulation even if it accurately summarized the veteran’s communications.1 The Veterans 

Court’s interpretation is problematic for Mr. King because 

the VA medical examiners are the individuals who created the writings that Mr. King now asserts as his informal claim. 

While we have jurisdiction to resolve this matter because it involves a purely legal interpretation of a regulation, see 38 U.S.C. § 7292(c), we decline to exercise that 

jurisdiction. “[A]s an appellate court (where our jurisdiction permits), ‘[w]e sit to review judgments, not opinions.’” 

Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed. Cir. 2004). 

Therefore, “if our decision cannot affect the judgment of 

the court below, because there was no legal error in the 

judgment itself, there is no basis for reversal.” Id. 

Here, a holding that the Veterans Court misconstrued 

§ 3.155(a) in the manner proposed by Mr. King would not 

impact the court’s finding that Mr. King lacked an intent 

to file an informal claim before May 15, 2000. Indeed, the 

intent element and the writing element each require their 

own, independent analyses. Put differently, even if we 

agreed with Mr. King and concluded that a writing produced by a medical examiner could qualify as an informal 

claim under § 3.155(a), Mr. King’s effective date of May 

15, 2000 would not change because of the Veterans 

Court’s intent finding. As mentioned, the Veterans 

Court’s intent finding must stand because we lack jurisdiction to review it. Because a ruling on who can write an 

informal claim under § 3.155(a) would not impact the 

 1 It is unclear whether the Veterans Court interpreted § 3.155(a) in the manner Mr. King alleges, but we 

will assume it did for purposes of this appeal. 
KING v. DVA 8

ultimate judgment in this case (i.e., that May 15, 2000 is 

the effective date), we decline to address this issue. 

B. 38 C.F.R. § 3.157 

Next, Mr. King challenges the Veterans Court’s interpretation of 38 C.F.R. § 3.157, another VA regulation 

permitting an earlier effective date based on the filing of 

an informal claim. This provision permits a medical 

report itself to qualify as an informal claim in certain 

circumstances. See 38 C.F.R. § 3.157. On appeal, Mr. 

King does not argue that the medical reports produced 

during the March 1995 and June 1997 VA hospital visits 

meet the requirements of § 3.157. Instead, Mr. King 

argues that the Veterans Court erroneously construed 

§ 3.157 such that it is the only regulation under which a 

veteran can rely on a medical record to support an informal claim. We have jurisdiction to resolve this issue 

because it involves a purely legal interpretation of a 

regulation. See 38 U.S.C. § 7292(c). 

Nothing in the Veterans Court opinion suggests that 

the court construed § 3.157 as Mr. King alleges. Instead, 

the court’s own analysis under § 3.155 indicates that it 

did not view § 3.157 as the only regulation permitting 

medical reports to support informal claims. Indeed, when 

analyzing intent under § 3.155, the court considered at 

length the medical reports from the March 1995 and June 

1997 VA hospital visits. Therefore, we reject Mr. King’s 

§ 3.157 argument. 

C. Board’s Consideration of March 1995 and June 1997 

Hospital Visits 

Finally, Mr. King argues that the Board did not consider his March 1995 and June 1997 visits to the VA 
9 KING v. DVA

hospital when setting May 15, 2000 as the effective date. 

Therefore, according to Mr. King, the Veterans Court had 

no findings on this issue to review. As a result, Mr. King 

asserts that the Veterans Court’s conclusions regarding 

the VA hospital visits (e.g., that Mr. King lacked intent 

under § 3.155) constituted initial, and thus improper, 

factual findings. In support of its argument, Mr. King 

relies on Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 

2000), which states that the “statutory provisions [applying to veterans] are consistent with the general rule that 

appellate tribunals are not appropriate fora for initial fact 

finding.” For the reasons stated below, we reject Mr. 

King’s argument. 

As acknowledged by the Veterans Court, the Board 

did not specifically mention Mr. King’s March 1995 and 

June 1997 visits to the VA hospital in its opinion. King, 

23 Vet.App. at 472. The Board generally stated, however, 

that the record “d[id] not include any communication from 

the veteran or his representative received prior to May 

15, 2000, that may reasonably be construed as an indication that he was seeking to reopen his claim for service 

connection.” It is undisputed that the record before the 

Board contained the medical reports created during Mr. 

King’s hospital visits. The Board is presumed to have 

considered all evidence contained in the record. See

Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 

2007) (Board’s failure to mention evidence in opinion does 

not overcome presumption that Board considered the 

evidence). Because the record before the Board contained 

the March 1995 and June 1997 medical reports, we must 

presume that the Board considered these reports and that 

its ultimate judgment setting the effective date at May 

15, 2000 included a finding that these reports did not 

provide a basis for an earlier effective date. 
KING v. DVA 10

The Veterans Court found no error in the Board’s decision to set the effective date at May 15, 2000. King, 23 

Vet.App. at 472. The Veterans Court did, however, elaborate on the medical records issue, explaining that these 

records do not undermine the Board’s conclusions. Id. at 

470-71. Determining whether these elaborations rise to 

the level of initial fact findings requires a comparison 

between the Board’s findings and the Veterans Court’s 

findings. We lack jurisdiction to conduct this fact-based 

analysis. See 38 U.S.C. § 7292(d)(2). 

Mr. King attempts to couch his argument that the 

Veterans Court made initial factual findings argument as 

purely legal. In particular, Mr. King argues that had the 

“Veterans Court applied the correct legal standard for 

judicial review, it would have concluded that the Board’s 

finding of fact on the issue of whether Mr. King filed a 

claim to reopen prior to May 2000 [was] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” We could only reach this conclusion, 

however, after comparing the Board and Veterans Court 

findings in the manner discussed in the previous paragraph. Because Mr. King’s proposed legal argument 

ultimately reduces to a fact-based analysis, we lack 

jurisdiction to address this matter under 38 U.S.C. 

§ 7292. See Cook v. Principi, 353 F.3d 937, 937-38 (Fed. 

Cir. 2003) (finding no jurisdiction because review of issue 

“ultimately reduce[d] to an application of the law to facts” 

where veteran “present[ed] his argument as a legal premise couched in terms of statutory interpretation”). 

III. CONCLUSION

Because we find that the Veterans Court committed 

no reversible legal error in affirming the May 15, 2000 

effective date, and since all other appealed issues are 
11 KING v. DVA

beyond our jurisdiction, we affirm. 

COSTS

Each party shall bear its own costs. 

AFFIRMED