NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

MUJAHID S. MALIKULMULK,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2020-2286

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-8335, Judge Coral Wong Pietsch.

______________________

Decided: February 12, 2021

______________________

MUJAHID S. MALIKULMULK, Canton, MI, pro se. 

 BRYAN MICHAEL BYRD, Commercial Litigation Branch, 

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

JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT 

EDWARD KIRSCHMAN, JR.; Y. KEN LEE, ANDREW J.

STEINBERG, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

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2 MALIKULMULK v. MCDONOUGH

 ______________________

Before LOURIE, CHEN, and HUGHES, Circuit Judges.

PER CURIAM.

Appellant Mujahid S. Malikulmulk appeals a decision 

by the United States Court of Appeals for Veterans Claims 

dismissing an appeal of a decision by the Board of Veterans’ Appeals. Because the Veterans Court properly interpreted the statutes and regulations at issue, and because 

we lack jurisdiction over Mr. Malikulmulk’s remaining arguments, we affirm the Veterans Court’s decision.

I

Mr. Malikulmulk served on active duty in the U.S. 

Army from January 1959 to March 1962. Malikulmulk v. 

Wilkie, 2020 WL 4211570 at *1 (Vet. App. 2020) (Decision). 

In December 2004, Mr. Malikulmulk filed a claim seeking 

service connection for bilateral hearing loss and other disabilities that he asserted were connected to his experience 

in the military as an infantryman and paratrooper. Id. In 

July 2006, the VA regional office (RO) denied Mr. 

Malikulmulk’s hearing loss claim because there was no evidence available indicating that Mr. Malikulmulk served in 

the infantry or as a paratrooper. Id.

In February 2017, Mr. Malikulmulk filed another

claim, this time submitting service records that confirmed 

his service in an infantry unit. Id. Nevertheless, the RO 

continued to deny service connection. Id. Mr. Malikulmulk 

filed Notices of Disagreement (NODs) with respect to both 

the 2006 and 2017 RO decisions denying service connection. Id. at 2.

After the VA denied Mr. Malikulmulk’s claims, he appealed to the Board of Veterans’ Appeals. Id. On March 5, 

2018, the Board issued a decision granting service connection, while also dismissing the challenge to the 2006 RO 

decision as untimely. Id. The Board decision did not 

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MALIKULMULK v. MCDONOUGH 3

address the disability rating to which Mr. Malikulmulk 

was entitled or the date when benefits should take effect. 

Rather, on March 11, 2019, the RO, acting on the Board’s 

grant of service connection, issued a separate decision assigning a 100% disability rating for bilateral hearing loss, 

with an effective date of February 14, 2017. Id. at 3. 

II

We have limited jurisdiction to review appeals from the 

Veterans Court. We have jurisdiction over “all relevant 

questions of law, including interpreting constitutional and 

statutory provisions.” 38 U.S.C. § 7292(d)(1). However, 

“[e]xcept to the extent that an appeal under this chapter 

presents a constitutional issue,” we may not review “a challenge to a factual determination,” or “a challenge to a law 

or regulation as applied to the facts of a particular case.” 

Id. § 7292(d)(2). 

III

Mr. Malikulmulk first argues that the Board misinterpreted 38 C.F.R. § 3.156 and that, because of this misinterpretation, the Board “arbitrarily ignore[d] the Veteran’s 

newly submitted evidence.” Appellant’s Br. at 2.1 We disagree that the Board misinterpreted the regulation or ignored the new evidence.

In order for the VA to reopen a legacy claim, 38 C.F.R.

§ 3.156(a) generally requires that evidence be both new

(not previously considered) and material (relating to an unestablished fact necessary to substantiate the claim). However, the VA will automatically reopen a claim when the 

new evidence is a service department record, even without 

1 Citations to Mr. Malikulmulk’s informal brief (and 

the pages and documents included therein) reflect the pagination applied by this court’s electronic case files system, 

Docket No. 4.

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4 MALIKULMULK v. MCDONOUGH

determining that the evidence is new and material. See id.

§ 3.156(c)(1). 

Because the new evidence at issue here was a service 

record, the RO and the Board automatically reopened and 

reconsidered the claim for service connection. S.A. 13. And 

based on these service records, the Board ultimately ruled

in Mr. Malikulmulk’s favor. See id. at 16 (“[T]he Board 

finds that the Veteran’s claim regarding bilateral hearing 

loss is consistent with the circumstances, conditions, and 

hardships of his active service as a member of an infantry 

unit, and the preponderance of the medical evidence supports that conclusion.”). We agree with the VA’s interpretation of 38 C.F.R. § 3.156(c).

Next, Mr. Malikulmulk appears to argue that he 

should be entitled to an earlier effective date of service connection under 38 C.F.R. § 3.156(c)(1)(iii). See, e.g., Appellant’s Br. at 9–10. However, the Board decision that the 

Veterans Court considered did not assign a date of entitlement, as it lacked authority to do so in the first instance, 

and Mr. Malikulmulk has not appealed the RO decision 

that did assign such a date.

We lack jurisdiction to consider the proper effective 

date because Mr. Malikulmulk has not challenged this determination, nor sought review at the Board or Veterans 

Court. As explained by the Veterans Court: 

To initiate appellate review of the RO’s assignment 

of the effective date, the appellant should have filed 

an NOD within a year from the date the notice of 

the RO’s decision was mailed. Alternatively, if the 

appellant did not file an NOD, he may request revision of the RO’s March 2019 decision assigning 

the effective date based on clear and unmistakable 

error (CUE). 

Decision, 2020 WL 4211570, at *3 (citations omitted). 

Additionally, determination of the effective date is a 

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MALIKULMULK v. MCDONOUGH 5

question of fact which we lack jurisdiction to review. 

See 38 U.S.C. § 7292(d)(2). 

To the extent that Mr. Malikulmulk argues that the 

Board was required to assign an effective date, rather than 

refer this decision to the RO, we disagree. By its plain language, § 3.156(c)(1)(iii) describes the proper effective date 

that must be used, but it has no bearing on which entity 

must make such a finding. Moreover, the Board here was 

without jurisdiction to assign an effective date in the first 

instance. See 38 U.S.C. § 7104.

Finally, Mr. Malikulmulk challenges the Veterans 

Court’s decision dismissing the 2006 claims. The Veterans 

Court found that Mr. Malikulmulk abandoned his challenge to the timeliness of his NOD because he did not raise 

any arguments on this issue before the Veterans Court. 

Decision, 2020 WL 4211570, at *3. We lack jurisdiction to 

review the Veterans Court’s determination that no argument was raised regarding an issue. See Andre v. Principi, 

301 F.3d 1354, 1363 (Fed. Cir. 2002).

The Veterans Court then explained that, to the extent 

Mr. Malikulmulk asserted that the 2006 decision should be 

reopened for CUE, the Veterans Court lacked jurisdiction 

to consider such a claim in the first instance. Decision, 

2020 WL 4211570, at *3. We have previously explained 

that “each ‘specific’ assertion of CUE constitutes a claim 

that must be the subject of a decision by the [Board] before 

the Veterans Court can exercise jurisdiction over it.” See 

Andre, 301 F.3d at 1361. We therefore affirm the Veterans 

Court decision that it lacked jurisdiction over allegations of

CUE that were raised for the first time on appeal.

IV

We have considered the parties’ remaining arguments 

and find them unpersuasive. Because we agree with the 

Veterans Court’s interpretations of law, and because we 

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6 MALIKULMULK v. MCDONOUGH

lack jurisdiction over any other issue in this case, we affirm 

the Veterans Court’s decision. 

AFFIRMED IN PART AND DISMISSED IN PART

No costs.

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