N OTE : This disposition is nonprecedential.



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

______________________

ARNOLD J. FREEDMAN,
Claimant

- Appellant,

v.

E ric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee.

______________________

2012

- 7098

______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 10

- 4117, Judge Robert N. Davis.

______________________

Decided: March 11, 2013

______________________

A R NOLD J. F REEDMAN , of Woodbury, New York, pro se.

C ORINNE A. N IOSI , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, fo r r espondent

- appellee.
With her on the brief were S TUART F. D ELERY , Acti ng Assi s tant Attorney General, J EANNE E. D AVIDSON , Dire ctor, and S COTT D. A USTIN , Assistant Director. Of counsel
on the brief were M ICHAEL J. T IMINSKI , Deputy Assistant General Counsel, and J ONATHAN E. T AYLOR , Attorney,ARNOLD FREEDMAN v. SHINSEKI 2

United States Department of Veteran s Affairs, of Was hington, DC.

______________________

Before M OORE

, R EYNA

, and W ALLACH

, Circuit Judges.

P ER C URIAM

.
Claimant

- Appellant Arnold Freedman appeals the d ecision of the United States Court of Appeals for the Vete rans Claims (“Veterans Court”) affirming a November 24, 2010 decision of the Board of Veterans’ Appeals (“Board”).
Freedman v. Shinseki , No. 10

– 4117, 2012 WL 268266 (Vet. App. Jan. 31, 2012). The Veterans Court affirmed the Board’s decision denying an ear lier effective date on the basis of clear and unmistakable error (“CUE”). We dismiss for lack of jurisdiction.

B ACKGROUND

Mr. Freedman served on active duty in the Army from

Marc h 5, 1953 to December 12, 1953. The record ind icates that Mr. Freedman had a difficult time adjusting to military service. Mr. Freedman’s difficulties remained

consistent , which the record shows led to his perception of the Army as unfair and discrimina tory

. 1 Mr. Freedman eventually became more hostile and para noid, and in Sept ember 1953 about six months into his military se rvice, it was recommended he be admitted for observation and be evaluated for neuropsychiatric problems.

1 For example, there was an incident in which Mr. Freedman was incorrectly charged with being away

without leave when he overstayed a three

- da y pass for the Jewish holidays. Although the court martial verdict was overturned and apologies were issued when it turned out that he had taken ill while at home, that experience and

other further difficulties exacerbated Mr. Freedma n’s perception of the Army

.ARNOLD FREEDMAN v. SHINSEKI 3

During his admission, it was discovered Mr. Free dman had a prior history of psyc hiatric problems. In particular, h e reported a prior history of problems with authority figures at work, as well as narcissistic and grandiose thought patterns

. He received a diagnosis of

s chizophrenic reaction, paranoid type, chron ic, moderate, manifested by looseness of as sociations, paranoid ide ation, delusions of persecution, ideas of reference, and grandiose productions. The examiner further opined that there was no evidence of impairment of his social or industrial capacity beyond that of hi s pre

- service level adjustme nt. A physical evaluation board also noted this condition exited prior to service a nd was not in the line of duty. As a result, Mr. Freedman was discharged in

December 1953

— less than a year from his entrance into

service

. The day after separation from s ervice, Mr. Freedman filed a claim for disability benefits for a “ nervous cond ition. ” Pursuant to that claim he received a n initial VA medical examination, which stated in relevant part:

The Army diagnosed schizophrenia, in complete

remission. They noted a “looseness of association” and grandiose and paranoid trends. I do not think this diagnosis is correct. The whole story, as ou tlined in the Army records and as not given by him in retrospect, can be explained as a manifestation
of an immatur e personality. In my opinion he has paranoid trends but is not psychotic. To be sure, his ability to withstand stress is not good, and it is possible he may some day break down, but for ra ting purposes at pres ent I would diagnose him as .

. . [p]assive

- a ggressive personality.

Appendix (“App.”) at 46

– 4 7

. Relying on this analysis, and its own medical analysis, the rating board at the Regional Office (“RO”) denied the claim. Mr. Freedman did not appeal this decision (“1954 Rating Decision”)

.ARNOLD FREEDMAN v. SHINSEKI 4

O n Decembe r 30, 2005, the RO received a claim from

Mr. Freed man requesting service connection for schiz ophrenia

. Finding new and material evidence had been
submitted , the Board reo pened Mr. Freedman’s prio r claim for service connection in March 2008 , and grant ed

se rvice connection for the anxiety disorder in October

2008. On remand, the RO effectuated the Board’s dec ision granting service connection for anxiety disorder, assign ing an initial 30 percent rating from December 30,

2005. December 30, 2005 was assigned as the effective date pursuant to 38 U.S.C. § 5110. 2 Mr. Freedman dis agreed with the assignment of the effective date, arguing that the effective date should be the day after his separ ation from service , and he appealed the RO’s effective date

determinati on to the Board

. At a hearing before the Board in September 2010, Mr. Freedman presented a CUE theory for the first time arguing that the 1954 Rating Decision was in error, which if found to be true,

would allow his effective date to relate back to the da te of

that decision. 3 8 C.F.R. § 3.105 (a) ( “ For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same

2 38 U.S.C. § 5110(i) states, in relevant part: Whenever any disallowed claim is reopened and therea fter allowed on the basis of new and material evidence

. . . the effective date of commencement of the benefits so

awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the d ate such disallowed claim was filed, whichever date is the later, but in no event shall

such award of benefits be retroactive for more than one year from the date of reopening of such disallowed claim

.ARNOLD FREEDMAN v. SHINSEKI 5

effect as if the cor rected decision had been made on the
date of the reversed decision .”)

.
In a November 24, 2010 decision, the Board found

that Mr. Freedman’s request of an effective date as the day after his separation from service relates back to the 1954 Rating Decision, which he had not appealed and was therefore final. As a result, the Board noted that decision could only be revised upon a collateral attack showing
that the RO committed CUE. The Board concluded that
Mr. Freedman had not established CUE , and the Vete ran s Court affirmed. Mr. Freedman filed a timely appeal

to this court

.
D ISCUSSION

This court has jurisdiction to review decisions by the Veterans Court with respect to a “challenge to the validity of any statute or regulation or any interpretation thereof.” 38 U.S.C. § 7292(c). We lack jurisdiction to review factual

determinations or the application of law to fact, except to the extent that a veteran’s appeal presents a constit utional issue. Id. § 7292(d)(2).

In order for his effective date to relate back to 1954,

Mr. Freedman request s revi sion of the unappealed 1954 Rating Decision on the basis of CUE , which is a collat eral
attack of a final decision. Disabled Am. Veterans v. Gober

, 234 F.3d 682, 696

– 98 (Fed. Cir. 2000). With respect to the CUE claim, 38 U.S.C. § 5109A authorizes the Secr etary to revise an earlier, final decision if t he decision is the product of a clear and unmistakable error. Therefore,

in order to revise a final decision, it must be the case that:

(1) Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regul atory provisions extant at the time were incorrectly applied,

(2) The error must be “undebatable” and the sort “which, had it not been made, would have man i-ARNOLD FREEDMAN v. SHINSEKI 6

festly changed the outcome at the time it was made,” and

(3) A determination that there was CUE must be

based on the record and the law that existed at the time of the prior adjudication in question.

Willsey v. Peake , 535 F .3d 1368, 1371 (Fed. Cir. 2008) (citing Russell v. Principi , 3 Vet. App. 310 (1992)); s ee Cook v. Principi , 318 F.3d 1334, 1346 (Fed . Cir. 2002) (en banc).

T he controlling regulation that existed at the time of the 1954 Rating Decision included the following provision :

Every person employed in active service shall be

taken to have been in sound condition when exa mined, accepted and enr olled for service except as to defects, infirmities or disorders noted at the time of examination, acceptance and enrollment or

where clear and unmistakable evidence demo nstrates that the injury or disease existed prior to acceptance and enrollment and was not aggrava ted by such service.

38 C.F.R. § 3.63(b) (1954). The regulation also define d
“clear and unmistakable” as “obvious or manifest.” 38 C.F.R. § 3.63(d). In view of this provision, t he Veterans Court began its review of the Board’ s decision with a reading of the 1954 Rating D ecision . The court took note
of the decision’s conclusion: “ No matter what the NP [neuropsychiatric] disability may eventually be in this case, it is clear and convincing that it existed prior to induction and that his Army ex periences did not result in permanent increase in the basic level thereof.” Freedman

, 2012 WL 268266 at * 2 ( alteration in the original, emph asis added

, and internal citation omitted).ARNOLD FREEDMAN v. SHINSEKI 7

Accordingly, t he Veterans Court rejected Mr. Free dman’s contention that the RO’s application of an incorrect legal standard was outcome determinative

. The Veteran’s Court, w hile recognizing the RO’s error in the use of the “clear and convincing” standard as opposed to the “clear
and unmistakable” standard

, nevertheless, foun d that in a CUE matter, the appellant has the additional burden of showing that absent the error the outcome would have been “manifestly different.” Id. at * 3.

T he Veterans Court determin ed that Mr. Freedman
cannot show that the outcome would have been “ manifes tly different” for at least two reasons. First, the Veterans
Court noted that the RO ac cepted the initial VA examin ation’s diagnosis of a passive

- aggressive personality diso rder, which was a noncompensable disability under the regulation. See 38 C. F.R. § 3.63(f) (1954). Therefore, according to the court, the existence of this noncompens able condition would not have affected the decision of the
RO in denying service connection.

In addition, the Veterans Court determined that Mr.
Freedman failed to contend how the RO committed clear
and unmistakable error in light of the evidence documen ting his problems as existing prior to service

. Hence, the
Veterans Court held that it was “ unable to say that the
Board erred in finding that the 1954 [R]ating [D] ecision did not involve undebatable error that, had it not been made, would have manifestly changed the out come of that

decision. ” Freedman , 2012 WL 268266 at *4 (internal citations omitted).

On appeal t o this court , Mr. Freedman contends that “[e]verything happened in the Army, not prior to or a ggravated in service . . . All evidence prior to entering

service states no medical or mental conditi on.” Appellant’s Informal Br., Resp. No. 2. Also, in respon se to the third question in the Appellant’s Informal Brief, Mr. Freedman suggests that the 1954 Rating Decision failed to apply 38ARNOLD FREEDMAN v. SHINSEKI 8

C.F.R. § 3.63(b). Id. , Resp. No. 3. Generally, Mr. Free dman makes similar arguments previously presented to

the Board and th e Veterans Court.

As to his first contention, “ [w] hether evidence regar ding the veteran’ s pre

- existing condition rises to the level
of ‘ clear and unmistakable evidence ’ is simply the applic ation of the facts to the legal standard ” an issue that the
Federal Circuit is without jurisdiction to consid er. Waltzer v. Nicholson , 447 F. 3d 1378, 1380 (Fed. Cir. 2006) (quoting Belcher v. West , 214 F.3d 1335, 1338 (Fed. Cir. 2000)) . In other words, we do not have jurisdiction to
consider the Board’s and the Veterans Court’s review of the RO’s 1954 Rating Decision in determining wh ether

th e evidence in the record was sufficient to constitute clear and unmistakable evidence. With regard to Mr. Freedman’s second contention, this court also lacks ju ri sdiction to conside r this argument

. Indeed, Mr. Free dman ’s reference to 38 C.F.R. § 3.63(b) does not raise any questions involving an interpretation of the regulation itself, but rather whether, assuming error, the error was
outcome determinative. Based on facts in the rec ord, t he
Veterans Court found that misapplication of the “clear and unmistakable” language as recited in 38 C.F.R. § 3.63(b) did not affect the outcome. We lack jurisdiction
over such factual determinations.

All other arguments Mr. Freedman present s are wit hout merit. In particular, Mr. Freedman does not provide any explanation as to how his constitutional rights may have been implicated in the Veterans Court’s affirmance
of the November 24, 2010 Board Decision. Accordingly, they are not be fore this c o urt for review. See 38 U.S.C. 7292(a). Thus , w e d ismiss this case for lack of jurisdi ction.

DISMISSED

.

No costs.