NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROB W. ROBERTS,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2024-1128

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 22-5244, Judge Amanda L. Meredith, Judge Coral Wong Pietsch, Judge Joseph L. Falvey, 

Jr.

______________________ 

Decided: April 10, 2024

______________________ 

ROB ROBERTS, Wausau, WI, pro se.

 KRISTIN ELAINE OLSON, Commercial Litigation Branch, 

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

BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.

MCCARTHY. 

______________________ 

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2 ROBERTS v. MCDONOUGH

Before DYK, MAYER, and TARANTO, Circuit Judges.

PER CURIAM. 

Rob W. Roberts appeals from a decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”) denying him an earlier effective date for disability 

compensation claims. We affirm in part and dismiss in 

part. 

BACKGROUND

Mr. Roberts served in the U.S. Marine Corps from January 1981, to January 1984, and in the U.S. Army from October 1987, to March 1993. He received an honorable 

discharge from the Marine Corps, and his service in the 

Army is considered honorable for VA purposes through 

March 1993. He also served in the U.S. Army from April 

1993, to July 2002. For this period, Mr. Roberts received a 

dishonorable discharge. 

On January 13, 2003, Mr. Roberts filed a disability benefits claim for hearing loss, tinnitus, anxiety, depression, 

chronic fatigue syndrome (“CFS”), joint aches, trigeminal 

neuralgia, memory loss, and muscle aches. In April 2005, 

the VA regional office (“RO”) denied all benefits. Mr. Roberts filed a Notice of Disagreement (“NOD”) in April 2006, 

stating he disagreed with “all determinations denying [his] 

claim.” S.A. 2. In this NOD, Mr. Roberts also requested to 

amend his claim to include abdominal pain, cramps, diarrhea, irritable bowel syndrome (“IBS”), flaking skin, a rash, 

lesions, lipomas, and sinus blockage. 

In December 2007 the RO granted Mr. Roberts a 10% 

rating for the conditions of tinnitus, CFS, muscle aches, 

and joint aches with neuralgia, disabilities which were 

listed in the January 13, 2003, claim. The benefits were 

given an effective date of January 13, 2003. The RO had 

also construed Mr. Roberts’ requested amendment as a 

new claim for IBS, skin problems, and a sinus condition, 

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ROBERTS v. MCDONOUGH 3

and in May 2007 denied benefits for those conditions. Mr. 

Roberts filed a NOD in September 2008. In January 2010, 

the RO granted Mr. Roberts benefits for IBS, effective April 

24, 2006, the date of his NOD in which he requested to 

amend his claim to include IBS. Mr. Roberts appealed the 

RO’s decision, disagreeing as to the effective dates on the 

theory that each claim had an effective filing date of January 13, 2003, within one year of his release or discharge. 

The Board of Veterans’ Appeals (“Board”) issued a decision on August 9, 2022, denying earlier effective dates 

than: (1) January 13, 2003, for tinnitus and fibromyalgia; 

(2) April 24, 2006, for IBS; and (3) June 9, 2016, for a 70% 

rating for PTSD and a 60% rating for CFS.1 The Board 

remanded several other matters. Mr. Roberts appealed to 

the Veterans Court.

The Veterans Court affirmed the Board’s denial of an 

earlier effective date for tinnitus, fibromyalgia, IBS, PTSD, 

and CFS. Additionally, the Veterans Court rejected Mr. 

Roberts’ arguments that the “VA violated its duty to assist 

and his due process rights, unreasonably delayed the 

claims process, failed to consider evidence from his third 

period of service, and misapplied the requirements for establishing service connection, including on a presumptive 

basis.” S.A. 11. 

Mr. Roberts appeals. 

DISCUSSION

Our jurisdiction to review decisions of the Veterans 

Court is limited. Except for constitutional issues, we may 

not review any “challenge to a factual determination” or 

1 The Board also denied an earlier effective date 

than June 9, 2016, for dermatitis, lipomas, and vasomotor 

rhinitis. However, the Veterans Court vacated and remanded this matter and thus it is not before us. 

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4 ROBERTS v. MCDONOUGH

any “challenge to a law or regulation as applied to the facts 

of a particular case.” 38 U.S.C. § 7292(d)(2). Additionally, 

under 38 U.S.C. § 7292(d)(1), we must decide “all relevant 

questions of law, including interpreting constitutional and 

statutory provisions” and affirm a Veterans Court decision 

unless it is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary 

to constitutional right, power, privilege, or immunity; 

(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” 38 U.S.C. 

§ 7292(d)(1).

Mr. Roberts argues for an earlier effective date of “either February 1, 2002, the day following his release, or July 

8, 2002, the day after discharge,” because under the relevant statute, a disability claim filed within one year of release or discharge is entitled to an effective date of the 

release or discharge. Appellant Br. 15. Mr. Roberts points 

to 38 U.S.C. § 5110(b)(1) which provides that “[t]he effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s 

discharge or release if application therefor is received 

within one year from such date of discharge or release.” 

Since Mr. Roberts applied for benefits on January 13, 2003, 

which was within one year of his discharge or release, he 

argues that he should be granted an earlier effective date

under the statute. 

However, 38 U.S.C. § 101(2) provides that a “veteran” 

is “a person who served in the active military, naval, air, or 

space service, and who was discharged or released therefrom under conditions other than dishonorable.” Implementing the statute, the regulations provides that

“[s]eparation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was 

incurred or aggravated.” 38 C.F.R. § 3.400(b)(2)(i) (emphasis added). Thus, “[t]he Board found that, even though the 

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ROBERTS v. MCDONOUGH 5

2003 claim was filed within 1 year of the appellant’s third 

period of service, ‘dishonorable periods of service cannot be 

used to qualify . . . for service connection.’” S.A. 8 (quoting 

S.A. 18). 

Mr. Roberts is not challenging the application of law to 

the particular facts of his case, nor asking us to re-weigh 

the relevant facts. Instead, he argues that 38 U.S.C. 

§ 5110(b)(1) is controlling and the regulation should not be 

followed. Thus, we have jurisdiction under 38 U.S.C. 

§ 7292(c) to review the Veterans Court’s interpretation of 

the statutes and regulation. 

We note that Mr. Roberts is not entitled to benefits for 

his period of service ending in dishonorable discharge. Veteran is defined as “a person who served in the active military, naval, air, or space service, and who was discharged 

or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2). The statute clearly suggests 

that an individual is not entitled to benefits for periods of 

service ending in a dishonorable discharge. Indeed, it has 

long been held that disability benefits are not available for 

periods of active duty terminating in a dishonorable discharge. See, e.g., D’Amico v. West, 209 F.3d 1322, 1326 

(Fed. Cir. 2000). Because Mr. Roberts is not entitled to any

benefits resulting from his dishonorable discharge, it must 

follow that he cannot use his dishonorable discharge to secure an earlier effective date for benefits. 

Mr. Roberts also argues that the RO should grant him 

an effective date of January 13, 2003, for IBS because his 

April 2006, NOD should have been interpreted as an 

amendment to the January 13, 2003, claim and not a new 

claim. This is a challenge to the Board’s factual determination that Mr. Roberts “had not filed formal or informal 

claims for [IBS] prior to [April 24, 2006].” S.A. 9–10. We 

therefore lack jurisdiction over this claim. We have considered Mr. Roberts’ other arguments and conclude that we 

likewise lack jurisdiction over those claims. 

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6 ROBERTS v. MCDONOUGH

CONCLUSION

We hold that the Veterans Court’s interpretation of 38 

U.S.C. § 5110 and 38 C.F.R. § 3.400 was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Mr. Roberts’ appeal otherwise raises issues 

not within our jurisdiction. 

AFFIRMED-IN-PART AND DISMISSED-IN-PART

COSTS

No costs.

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