NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CLEVEN L. ROBERSON, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7112 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 08-2481, 

Judge Alan G. Lance, Sr. 

___________________________ 

Decided: November 9, 2010 

___________________________ 

CLEVEN L. ROBERSON, Baltimore, Maryland, pro se. 

DANIEL G. KIM, Trial Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent-appellee. 

With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN 
ROBERSON v. DVA 2

F. HOCKEY, JR., Assistant Director. Of counsel on the 

brief was DAVID J. BARRANS, Deputy Assistant General 

Counsel, United States Veterans Affairs, of Washington, 

DC. 

__________________________ 

Before NEWMAN, CLEVENGER, and BRYSON, Circuit 

Judges. 

PER CURIAM. 

Cleven L. Roberson appeals from the final decision of 

the United States Court of Appeals for Veterans Claims 

(“Veterans Court”) which affirmed the July 24, 2008, 

decision of the Board of Veterans’ Appeals (“Board”) that 

denied Mr. Roberson an earlier effective date for the 

award of his nonservice-connected disability pension. See

Dorsey v. Shinseki, No. 08-2481 (Vet. App. Feb. 23, 2010). 

We dismiss Mr. Roberson’s appeal. 

I 

Mr. Roberson served in the United States Air Force 

from September 1962 until December 1964. His initial 

request for entitlement to nonservice-connected pension 

benefits was denied in March 1984. He did not appeal 

from this adverse decision, which thereby became final. 

His attempt to reopen that claim was denied in October 

1998, and again he did not appeal that ruling, which also 

became final. On April 13, 2004, Mr. Roberson again 

applied for a nonservice-connected disability pension. 

This time he was successful, and the Baltimore regional 

office granted him an effective date of April 13, 2004. Mr. 

Roberson, however, disagreed with the assigned effective 

date and argued that he was entitled to an effective date 

of October 31, 1991, when the Social Security Administra-
3 ROBERSON v. DVA

tion determined that he was disabled. After an extended 

period of discussion with the regional office, Mr. 

Roberson’s request for an earlier effective date was denied, and he appealed to the Board. 

Mr. Roberson was afforded a hearing by the Board 

chaired by Veterans Law Judge Keith Allen. Judge Allen 

explained to Mr. Roberson that the effective date of a 

claim is determined by the date the claim is made, and 

that by failing to appeal from the denials of his requests 

for benefits in 1984 and 1998 he lost the opportunity to 

establish effective dates relative to those claims. The 

possibility of an effective date retroactive from the April 

13, 2004 filing was discussed, but not resolved, at the 

hearing. 

Shortly after the hearing, Judge Allen issued the 

Board’s written decision denying Mr. Roberson an earlier 

effective date from his April 13, 2004 claim. The decision 

again noted that the effective date of a claim is tied to its 

submission date, citing 38 U.S.C. § 5110(a) and 38 C.F.R. 

§ 3.400. Under certain circumstances, the effective date 

can be retroactive, see 38 C.F.R. § 3.400(b)(ii), however, 

the regulations require a veteran to file his request for a 

retroactive award within one year of the claimed disability date. Because there is no evidence that Mr. Roberson 

made a prior application that was not denied with final 

and binding effect within one year of his claimed disability date, the Board concluded that he failed to qualify for 

a retroactive effective date based on § 3.400(b)(ii). 

Mr. Roberson appealed the adverse Board decision to 

the Veterans Court. With regard to Mr. Roberson’s 

request for an earlier effective date, the Veterans Court 

noted that the question of the proper effective date is a 

question of fact, reviewable in that court for clear error. 
ROBERSON v. DVA 4

Because the facts demonstrated that Mr. Roberson failed 

to meet the one year filing time for a retroactive effective 

date, the Board’s decision on that issue was affirmed. 

The Veterans Court then turned to other issues raised by 

Mr. Roberson. 

Mr. Roberson raised the issue of the termination of 

his benefits in 2006, apparently for failure to submit 

required information and because of an overpayment of 

benefits. Mr. Roberson had requested a waiver of the 

debt resulting from the overpayment, but had not received a decision on his waiver request at the time the 

Board was reviewing his case. The Veterans Court concluded that the Board had not adjudicated the issue of 

termination of benefits, and consequently the Veterans 

Court lacked authority to review the issue on appeal from 

the Board’s decision. Mr. Roberson also raised the question of whether Judge Allen should have recused himself 

from making the decision of the Board because he had 

served as the hearing official. The Veterans Court rejected this argument because the Board’s rules on recusal, 

see 38 C.F.R. § 19.12, do not prevent the same Board 

member from conducting a hearing and also deciding an 

appeal. 

Mr. Roberson timely sought review in this court of the 

adverse final decision of the Veterans Court. 

II 

The jurisdiction of this court to hear appeals from the 

Veterans Court is limited by statute. Under 38 U.S.C. § 

7292(a), this court may review “the validity of a decision 

of the [Veterans Court] on a rule of law or of any statute 

or regulation . . . or any interpretation thereof (other than 

a determination as to a factual matter) that was relied on 
5 ROBERSON v. DVA

by the [Veterans Court] in making the decision.” Section 

7292(c) vests this court with exclusive jurisdiction “to 

review and decide any challenge to the validity of any 

statute or regulation or any interpretation thereof 

brought under this section, and to interpret constitutional 

and statutory provisions, to the extent presented and 

necessary to a decision.” Section 7292(d)(2) mandates 

that, except to the extent an appeal from the Veterans 

Court presents a constitutional issue, this court “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.” 

Mr. Roberson’s appeal to this court does not expressly 

challenge the rejection of his request for a retroactive 

effective date. The determination of the effective date of a 

claim is a question of fact. See Butler v. Shinseki, 603 

F.3d 922, 926 (Fed. Cir. 2010). Even assuming that Mr. 

Roberson is presenting his retroactive effective date 

argument to this court, the argument raises nothing to us 

other than an assessment of the facts as found by the 

Board and the Veterans Court. We lack the authority to 

review that issue, and thus dismiss it from the case. 

Mr. Roberson raises what appears to be a new issue in 

this court, which is whether the regional office erred by 

issuing a supplemental statement of the case while his 

request for an earlier effective date was under consideration. Mr. Roberson cites 38 C.F.R. § 19.29(c) as grounds 

for error by the regional office. That provision relates to 

the contents of a statement of the case, and does not 

restrict the timing of issuance of such statements. It 

appears that Mr. Roberson is complaining that he was 

notified by letter that he could not appeal the decision to 

grant extraschedular nonservice-connected benefits 

because the decision was in his favor. Mr. Roberson does 
ROBERSON v. DVA 6

not dispute, however, that he also received a statement of 

the case noting that his request for entitlement to an 

earlier effective date was denied and the applicable laws 

and regulations. The provision thus does not avail Mr. 

Roberson. 

Mr. Roberson renews his objection to Judge Allen 

serving in a dual role in his case, but with a new twist. 

Citing 38 C.F.R. § 19.2, Mr. Roberson avers that Keith 

Allen as Chairman of the Board cannot also serve as a 

Veterans Law Judge. Mr. Roberson relies on the transcript of his hearing, which refers to Judge Allen as 

“Chairman.” While it is true that the actual Chairman of 

the Board does not serve as a Veterans Law Judge, there 

are two short answers to Mr. Roberson’s contention. 

First, by referring to the presiding official at the hearing 

as the Chairman of the hearing, that person does not 

become the actual Chairman of the Board, which is a 

position requiring confirmation by the United States 

Senate. In fact, Mr. James P. Terry was confirmed by the 

Senate for a six-year term as Chairman in July 2005. 

Second, there is no legal error raised by a deciding judge 

also serving as the Chairman of a Board hearing. 

Finally, Mr. Roberson refers to the issue of the termination of his benefits in 2006 and his request for a waiver 

of the debt associated with the overpayment of benefits. 

Because there was no decision on this issue at the Board 

or the Veterans Court, there is no actual decision for us to 

review. We do note that the record before us shows that 

Mr. Roberson’s request for a waiver was approved on May 

12, 2010. 

For the reasons stated above, Mr. Roberson’s appeal 

presents issues that are beyond the reach of our jurisdiction, and accordingly we dismiss his appeal. 
7 ROBERSON v. DVA

COSTS

No costs.