NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7311
DONALD L. KOSHOCK, Claimant-Appellant,

v.
JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.
Hugh D. Cox , of Greenville, North Carolina, argued for claimant-appellant. Douglas K. Mickle , Trial Attorney, Commercial Litigati on Branch, Civil Division, United States Department of Justic e, of Washington, DC, argued fo r respondent-appellee. With him on the brief were Jeffrey S. Bucholtz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Assistant Director. Of counsel on the brief was David J. Barrans , Deputy Assistant General Counsel, Un ited States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Alan G. Lance, Sr.NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7311 DONALD L. KOSHOCK, Claimant-Appellant,

v. JAMES B. PEAKE M.D., Secretar y of Veterans Affairs, Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 05- 1528, Judge Alan G. Lance, Sr.

_______________________ DECIDED: August 14, 2008

_______________________ Before LOURIE, RADER, and PROST, Circuit Judges

. LOURIE, Circuit Judge

. Donald L. Koshock appeals from the decis ion of the United States Court of Appeals for Veterans Claims (“the Veterans C ourt”) affirming the decision of the Board of Veterans’ Appeals (“the Board ”) that denied his claim for benefits due to the nature of his military discharge. Koshock v. Nicholson , No. 05-1528 (Vet. App. July 19, 2007). Because we lack jurisdiction over Koshock’s appeal, we dismiss

.BACKGROUND Koshock served on active duty in the Un ited States Marine Corps from August 1965 to February 1968 at which time he receiv ed an “undesirable” disc harge. In March 1995, a Department of Veterans Affairs (“D VA”) regional office determined that the nature of Koshock’s discharge made him inelig ible for veterans benefits. In March 2000, Koshock sought to reopen his claim on the basis that his discharge was not dishonorable. In October 2000, the DVA regional office denied Koshock’s claim and clarified that “undesirable” was considered “dishonorable” for purposes of receiving benefits. Further proceedings before the Board and the Vete rans Court followed, but the matter was eventually remanded pursuant to a joint motion. The remand order from the Board to the regional office directed t hat notice pursuant to the Veterans Claims Assistance Act of 2000 (“VCAA”), Pub. L. No. 106-475, 114 Stat. 2096, be provided. On June 21, 2004, the regional office sent Koshock and his counsel a letter explaining the status of his claim and the evidence needed to support that claim as well as other information in accordance with the VCAA requirement s. The DVA then readjudicated Koshock’s claim through a S upplemental Statement of the Case on November 10, 2004 and found him ineligible fo r veterans benefits. He appealed to the Board, and the Board found on April 20, 2005 t hat he was ineligible for benefits because of the nature of his discharge. He appealed the Board’s decision to the Veterans Court, and the Veterans Court found on July 19, 2007 that he had failed to establish error in the Board’s decision. The Veterans Cour t entered final judgment on August 13, 2007. Koshock timely appealed to this court. DISCUSSION

2007-7311 -2-Koshock argues that the Veterans Court failed to apply the rule of prejudicial error in reviewing error in his VCAA notice. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Sanders v. Nicholson , 487 F.3d 881, 885-86 (Fed. Cir. 2007). In his briefs to this court, Koshock argued that the Veterans Court had misapplied this court’s decisions in Sanders and Simmons v. Nicholson , 487 F.3d 892 (Fed. Cir. 2007), but counsel for Koshock appeared to abandon that position at oral argument. Instead, counsel for Koshock relied entirely on this court’s decision in Mlechick v. Mansfield , 503 F.3d 1340 (Fed. Cir. 2007), identified only in a Federal Rules of Appellate Procedure 28(j) letter filed the day before oral ar gument, as support for his position. At oral argument, counsel for the government argued t hat Koshock had misinterpreted Mlechick in the same way as he misinterpreted Sanders and Simmons by failing to understand that a finding of error in the notice was a necessary predicate to questions about application of the rule of prejudicial error. In reviewing decisions of the Veterans Court, we are empowered to “decide all relevant questions of law, including interpreti ng constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). Our review thus in cludes questions of law, which we review de

novo

. Bailey v. West , 160 F.3d 1360, 1362 (Fed. Cir. 1998) (en banc). However, except to the extent that an appeal presents a constitutional issue, we may not review a challenge to a factual determination or a cha llenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. § 7292(d)(2). We agree with the government that we lack jurisdiction over Koshock’s appeal. Before it is possible to determine if any e rror has prejudiced a claimant for veterans benefits, there must be an error in the D VA’s VCAA notice to the claimant. The

2007-7311 -3-2007-7311 -4- Veterans Court specifically found no error in the DVA’s notice to Koshock. Whether a communication from the DVA satisfied it s notice obligation under the VCAA is a question of fact and thus outside t he jurisdiction of this court. Mayfield v. Nicholson , 499 F.3d 1317, 1322 (Fed. Cir. 2007) ; 38 U.S.C. § 7292(d)(2). For that reason, we
must dismiss

.