N OTE : This disposition is nonprecedential.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

______________________

J EROME C OHENS , of Miami, Florida, pro se.

N ATHANAEL B. Y ALE , Trial Attorney, Commercial Lit igation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent

- appellee. With h im on the brief wer e S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Dire ctor, and S COTT D. A USTIN , Assistant Director. Of counsel on the brief were D AVID J. B ARRANS , Deputy Assistant General Counsel, and L ARA K. E ILHARDT , Attorney, Uni t-COHENS v. SHINSEKI 2

ed States Department of Veterans Affairs, of Washington, DC.

______________________

Before P ROST , P LAGER , and C HEN , Circuit Judges.

P ER C URIAM

. 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.

B ACKGROUND Mr. Cohens served on active duty in the U.S. Marine Corps from December 1978 to February 1979. The U.S. De partment of Veterans Affairs (“VA”) Regional Office (“Regional Office”) granted Mr . Cohens ’s claim of a service connection for low

- back strain , along with a noncompe nsable disability rating effective February 1979. On April 9, 1998, Mr. Cohens filed a cla im at the Regional Office for an increased disability rating. I n 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 committ ed 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 Decem ber 3, 2007

, the Board denied Mr. Cohens’ s m otion for reversal and rev ision . The Veterans Court affirmed the Board’s 2007 decision on October 22, 2009. Subsequent to the Veterans Court’s decision, Mr. C ohens 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, w hile Mr. Cohens’ s mandamus petition was pending at the V eterans Court, the Board notified Mr. Cohens that it had denied his November 2 012 motion for reconsideration on the basis of its failure to present arguments showing error in the Board’s decision s. Subsequently, o n 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 fo r the regul ar appeals process. This appeal followed.

D ISCUSSION Our review of Veterans Court decisions is strictly li mited 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 ma y 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 sou ght and no alternative channels for obtaining relief. Cheney v. U.S. Dist. Court , 542 U.S. 367, 380

- 81 (2004). We do not haveCOHENS v. SHINSEKI 4

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 reconsi deration 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 diagno sis in determining the effective date of his disability rating. Mr. Cohens’ s alleg ation raises only a question of the Veterans Court’s appl ication of law to fact, over which we lack jurisdiction. 38 U.S.C. § 7292(d)(2).
Second, Mr. Cohens alleges that t he 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 dec ision 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 cha llenge 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 previou sly adjudicatedCOHENS v. SHINSEKI 5

by the Board

. Andre v. Principi , 301 F.3 d 1354, 1361 (Fed. Cir. 2002).
In light of the foregoing, the grounds for the extrao rdinary 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 mand amus 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 deci sion affirming the Regional Office’s determination. Mr. Cohens should reco gnize 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 th e R egional 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

C OSTS Each party shall bear its own costs.