N OTE : This disposition is nonprecedential. 

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

______________________ JOHN J. TITONE, Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2015

- 7097

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 14

- 1746, Judge Margaret C. Bartley.

______________________

Decided: Feb ruary 9, 2016

______________________

J OHN J. T ITONE , Lindenhurst, NY , pro se.

S EAN S IEKKINEN , Commercia l Litigation Branch, Civil Divi sion, United States Department of Justice, Washin gton, DC, for respondent

- appellee . Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., E LIZABETH H OSFORD ; B RIAN D. G RIFFIN , J ONATHAN K RISCH , M ARTIN J AMES S ENDEK , Office of General Cou n-TI TONE v. MCDONALD 2

sel, United States Department of Veterans Affairs, Was hington, DC.

______________________

Before M OORE , T ARANTO , and H UGHES , Circuit Judges.

P ER C URIAM

. John J. Titone served in the U.S. Army from 1977 to 1984. In 2007, he applied for veterans’ benefits , claiming that he had a disability relating to a splenectomy co nnected to his Army service. A Regional Office of the Depart ment of Veterans Affairs assig ned him a disability rating of 20% as of November 23, 2007. Mr. Titone cha llenged the 2007 effective date before the Board of Vete rans’ Appeals

, arguing that he was entitled to receive benefits back to 1984, when he left active military service. The Board rejected his argument, and the United States Court of Appeals for Veterans Claims affirmed. Mr. Titone presents the same argument to us . We affirm.
It is undisputed that Mr. Titone did not file his claim for disability benefits until 2007. Mr. Titone’s arg ument

— to the Board, to the Veterans Court, and to us

— is that his benefit entitlement should have begun upon his discharge from active service in May 1984, not from the 2007 filing date of his claim for disability benefits . The reason, he contends, is that the Army , when he was discharged from service, did not inform him of his ent itlement to benefits and not until 2007 did he know of his eligibility. The Board and the Veterans Court both co ncluded that , under the governing statutory and regulatory provisions , 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400, the claim

- filing date was the earliest permissible effective date for benefits

. Congress has narrowly defined the scope of our juri sdiction over a ppeals from the Veterans Court. Because we are not presented with a constitutional question, our jurisdiction is limited to “decid[ing] any challenge to theTITONE v. MCDONALD 3

validity of any statute or regulation or any interpretation thereof,” 38 U.S.C. § 7292(c), and doe s not embrace cha llenges to “a factual determination” or to “a law or regul ation as applied to the facts of a particular case,” id. § 7292(d)(2). Accordingly, our jurisdiction here is restric ted to considering the contention, which we may construe Mr. Tit one’s appeal to us as present ing , that the statutes and regulations must be interpreted to permit an effective date well before the claim

- filing date when the military did not give notice of eligibility for benefits to a soldier upon discharge or later.

Th at contention, however, lacks merit. 38 U.S.C. § 5101 (a)(1) requires the filing of a claim before a veteran will receive benefits , and § 5110(a) provides that “[u]nless specifically provided otherwise in this chapter, the effe ctive date of an award based on an original claim .

. . of compensation .

. . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor .” Id. § 5110(a) (emphasis added). The relevant imple menting regulation states that unless the VA receives a claim within one year after a veteran’s separation from service, the effective date for that vete ran’s receiving disability compensation is the “date of receipt of claim, or date entitlement arose, wh ichever is later .” 38 C.F.R. § 3.400(b)(2)(i) (emphasis added)

. Those provisions leave no room for an effective date before the claim

- filing date just because Mr. Titone was not told that he had the option to file a claim for such benefits when he left a ctive service. And we have prev iously rejected similar equitable arguments. See Andrews v. Principi , 351 F.3d 1134, 1137

– 38 (Fed. Cir. 2003) (concluding that the government’s failure to notify under 38 U.S.C. § 7722(b) , (c)(1) is not a basis for tolling § 5110(b)(1) and that equitable tolling does not apply to § 5110(b)(1)); Rodriguez v. West , 189 F.3d 1351, 1354

– 55 (Fed. Cir. 1999) (determining that 38 U.S.C. §§ 5102, 7722(d) do not “justif [y] ignoring the unequivocal co m-TI TONE v. MCDONALD 4

mand in 38 U.S.C. § 5110(a)”); Mc Cay v. Brown , 106 F.3d 1577, 1582 (Fed. Cir. 1997) (holding that equitable tolling does not apply to § 5110(g)). For those reasons, we must reject Mr. Titone’s contention and affirm the judgment of the Veterans Court.

No costs.

AFFIRMED