NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

JEROME COHENS,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2013-7123

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 13-941.

______________________ 

Decided: December 11, 2013

______________________ 

JEROME COHENS, of Miami, Florida, pro se. 

NATHANAEL B. YALE, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

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

With him on the brief were STUART F. DELERY, Acting 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and SCOTT D. AUSTIN, Assistant Director. Of counsel 

on the brief were DAVID J. BARRANS, Deputy Assistant 

General Counsel, and LARA K. EILHARDT, Attorney, Unit-
2 COHENS v. SHINSEKI

ed States Department of Veterans Affairs, of Washington, 

DC.

______________________ 

Before PROST, PLAGER, and CHEN, Circuit Judges.

PER CURIAM. 

Jerome Cohens appeals from an order of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”) denying his petition for a writ of mandamus. 

Because Mr. Cohens’s appeal raises no legal questions 

over which we have jurisdiction, we dismiss.

BACKGROUND

Mr. Cohens served on active duty in the U.S. Marine 

Corps from December 1978 to February 1979. The U.S. 

Department of Veterans Affairs (“VA”) Regional Office 

(“Regional Office”) granted Mr. Cohens’s claim of a service 

connection for low-back strain, along with a noncompensable disability rating effective February 1979. On April 

9, 1998, Mr. Cohens filed a claim at the Regional Office

for an increased disability rating. In November 1998 the 

Regional Office increased his rating from 10% to 60%, 

effective April 9, 1998. 

On February 16, 2005, the Board of Veterans Appeals 

(“Board”) denied an earlier effective date for the 60% 

rating. Mr. Cohens alleged that the Board committed 

clear and unmistakable error, claiming that the diagnosis 

was delayed as a result of the long time it took to go 

through appointments and treatments at the VA hospital 

at which he was receiving care. On December 3, 2007, the 

Board denied Mr. Cohens’s motion for reversal and revision. The Veterans Court affirmed the Board’s 2007 

decision on October 22, 2009. Subsequent to the Veterans 

Court’s decision, Mr. Cohens filed numerous motions for 

reconsideration of the Board’s decision, all of which were 

denied, including most recently on November 19, 2012. 
COHENS v. SHINSEKI 3

While the latter motion was pending, Mr. Cohens sent 

a letter on March 15, 2013 to the Veterans Court asking

the court to “immediately speak with” the Deputy Vice 

Chairman of the Board asking that his claim for benefits 

be granted. This correspondence was deemed to be an 

application for extraordinary relief, in the nature of a writ 

of mandamus. On April 10, 2013, while Mr. Cohens’s 

mandamus petition was pending at the Veterans Court, 

the Board notified Mr. Cohens that it had denied his 

November 2012 motion for reconsideration on the basis of 

its failure to present arguments showing error in the 

Board’s decisions. Subsequently, on April 23, 2013, the 

Veterans Court denied Mr. Cohens’s mandamus petition 

on the grounds that the Board had not delayed unreasonably in acting on his motion for reconsideration and that a 

writ of mandamus cannot substitute for the regular 

appeals process. This appeal followed.

DISCUSSION

Our review of Veterans Court decisions is strictly limited by statute. Pursuant to 38 U.S.C. § 7292(a), we may 

review the decision “with respect to the validity of a 

decision of the 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 

by the Court in making the decision.” We may not review 

findings of fact or application of a law or regulation to the 

facts, except to the extent that an appeal presents a 

constitutional issue. 38 U.S.C. § 7292(d)(2).

This limited jurisdiction applies to the review of the 

Veterans Court’s decision whether to grant a petition for a 

writ of mandamus. See Lamb v. Principi, 284 F.3d 1378, 

1381-82 (Fed. Cir. 2002). For the extraordinary remedy of 

a writ to be issued, a petitioner must show that there is a 

clear and undisputable right to the relief sought and no 

alternative channels for obtaining relief. Cheney v. U.S. 

Dist. Court, 542 U.S. 367, 380-81 (2004). We do not have 
4 COHENS v. SHINSEKI

jurisdiction to review the appeal of a petition that raises 

only issues of fact in the absence of a non-frivolous legal 

question. Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. 

Cir. 2013).

On appeal, Mr. Cohens reiterates the allegations that 

were made in previous appeals and motions for reconsideration regarding the VA’s assessment of the April 1998 

effective date for his service rating. Giving Mr. Cohens’s 

informal briefing the broadest latitude, his mandamus 

petition raises three issues.

First, Mr. Cohens alleges that the Veterans Court 

erred in its 2009 decision when it did not give appropriate 

weight to an earlier 1980 diagnosis in determining the 

effective date of his disability rating. Mr. Cohens’s allegation raises only a question of the Veterans Court’s application of law to fact, over which we lack jurisdiction. 38 

U.S.C. § 7292(d)(2). 

Second, Mr. Cohens alleges that the VA failed in its 

duty to assist by not providing him with timely diagnoses, 

and that the Board committed clear and unmistakable 

error by refusing to consider this delay in its 2005 decision denying him an earlier effective date for his service 

rating. The VA’s duty to assist, however, is not a legal 

basis for finding clear and unmistakable error in a service 

rating decision. 38 C.F.R § 20.1403(d); Cook v. Principi, 

318 F.3d 1334, 1344 (Fed. Cir. 2002). Mr. Cohens’s challenge on these grounds therefore raises no legal question 

over which we would have appellate jurisdiction. 

Third, Mr. Cohens claims that the results of a 1981 

diagnostic test at the Miami VA hospital, which he claims 

were not available to him at the time of the Board’s 2007 

decision, would constitute a new basis for providing an 

earlier effective date for his service rating. We do not 

have jurisdiction over the appeal of a claim of clear and 

unmistakable error that was not previously adjudicated 
COHENS v. SHINSEKI 5

by the Board. Andre v. Principi, 301 F.3d 1354, 1361 

(Fed. Cir. 2002).

In light of the foregoing, the grounds for the extraordinary relief that Mr. Cohens seeks are entirely based on 

issues that we cannot review for lack of jurisdiction. On 

appeal, Mr. Cohens has provided no other reason why we 

should reverse the Veterans Court’s denial of his mandamus petition. Accordingly, we dismiss.

We note that Mr. Cohens raised the foregoing issues 

in his previous appeals, and the Veterans Court duly 

considered them in its 2009 decision affirming the Regional Office’s determination. Mr. Cohens should recognize that he has a means of seeking relief with respect to 

the 1981 test results or any other evidence that may be 

new and material to his case: he may at any time present 

it to the Regional Office in order to seek to reopen his 

disability claim or to initiate a new claim of clear and 

unmistakable error. See 38 C.F.R. § 3.156; 38 U.S.C. 

§ 5109A(d). 

DISMISSED

COSTS

Each party shall bear its own costs.