N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

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EARLEE KING, Claimant-Appellant,

v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee.

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2010-7133

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Appeal from the United States Court of Appeals for Veterans Claims in case no. 07-1214, Chief Judge William P. Greene, Jr.

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Decided: July 21, 2011

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J OHN F. C AMERON

, J R

., of Montgomery, Alabama, argued for claimant-appellant.

J ACOB A. S CHUNK , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department ofJustice, of Washington, DC, argued for respondentappellee. With him on the brief were T ONY W EST , Assis-KING v. DVA 2

tant Attorney General, J EANNE E. D AVIDSON , Director,
and M ARTIN F. H OCKEY

, J R

., Assistant Director. On the
brief were D AVID J. B ARRANS , Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Washington, DC.

__________________________

Before R ADER

, Chief Judge , L INN and P ROST

, Circuit Judges

.
P ROST

, Circuit Judge

.

Earlee King appeals from the United States Court of Appeals for Veterans Claims’ (“Veterans Court”) decision affirming the decision of th e 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. B ACKGROUND

Mr. King served in the Unit ed 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.KING v. DVA 3

On May 15, 2000, Mr. King so ught to formally reopen his claim for service connection, providing as a basis medical records generated during March 1995 and June1997 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 (t he 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 Boar d. The Board denied Mr. King’s request for an earlie r 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 co nstrued as an indication that he was seeking to reop en his claim for service connection.” A Veterans Court panel affirmed, concluding
that none of the records or ot her 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. D ISCUSSION

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 in terpretation 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 constitution al 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 aveteran’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 obta in an earlier effective date
in certain circumstances. Fo r 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 fr iend of a claimant who is not sui juris.” Under this court’s precedent, a communication qualifies as an informal clai m pursuant to § 3.155(a) if that communication (1) is wri tten; (2) indicates an intent to apply for benefits; and (3) identifies the benefits sought. Rodriguez v. West , 189 F.3d 1351, 1354 (Fed.KING v. DVA 5

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 simplystated that the record “d[id] not include any communication from the veteran or his representative received prior to May 15, 2000, that may reas onably be construed as anKING v. DVA 6

indication that he was seeking to reopen his claim for
service connection.” The Veterans Court did discuss themedical 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 conne ction and ‘wanted to file’ for service connection’ . . . failed to manifest the requisiteintent 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 inte nt 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 thesefact-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. Ki ng 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 prov ision 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). Un der 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 informalKING v. DVA 7

claim under the regulation ev en if it accurately summarized the veteran’s communications. 1 The Veterans Court’s interpretation is prob lematic 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 de cline to exercise thatjurisdiction. “[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 propos ed 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 weagreed 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 VeteransCourt’s intent finding must stand because we lack jurisdiction to review it. Becaus e 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 effectiv e 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 on ly regulation under which a veteran can rely on a medical record to support an informal claim. We have jurisdic tion 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 info rmal 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. Theref ore, 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 VAKING v. DVA 9

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., th at 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 “s tatutory provisions [applying to veterans] are consistent with the general rule that appellate tribunals are not appr opriate fora for initial fact finding.” For the reasons stated below, we reject Mr. King’s argument.

As acknowledged by the Ve terans 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 Boar d 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 consid ered 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 , 23Vet.App. at 472. The Veterans Court did, however, elaborate on the medical records i ssue, 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 fa ctual 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 aclaim 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 Courtfindings 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 jurisdicti on because review of issue “ultimately reduce[d] to an app lication of the law to facts” where veteran “present[ed] his argument as a legal premise couched in terms of statutory interpretation”).

III. C ONCLUSION

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 areKING v. DVA 11

beyond our jurisdiction, we affirm.

C OSTS

Each party shall bear its own costs.

AFFIRMED