NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

GARY L. BEHUNIN,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2024-1031

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 21-1151, Senior Judge William P. 

Greene, Jr.

______________________

Decided: May 21, 2024

______________________

GARY L. BEHUNIN, Sebastopol, CA, pro se. 

 RAFAEL SHAPIRO, Commercial Litigation Branch, Civil 

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

BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M.

MCCARTHY. 

______________________

Case: 24-1031 Document: 23 Page: 1 Filed: 05/21/2024
2 BEHUNIN v. MCDONOUGH

Before CHEN, MAYER, and CUNNINGHAM, Circuit Judges.

PER CURIAM.

Gary L. Behunin appeals a decision of the United 

States Court of Appeals for Veterans Claims (Veterans 

Court), which affirmed a Board of Veterans’ Appeals 

(Board) decision that denied an earlier effective date for 

Mr. Behunin’s bilateral hearing loss and tinnitus. Mr. Behunin contends that he is entitled to an earlier effective 

date because he was misinformed about his eligibility for 

benefits. We dismiss this appeal for lack of jurisdiction.

I.

Mr. Behunin served on active duty in the United States 

Marine Corps from July 1959 to April 1963. Behunin v. 

McDonough, No. 21-1151, 2023 WL 5197313, at *1 (Vet. 

App. Aug. 14, 2023) (Decision). Mr. Behunin alleges that 

he was “constantly subjected to extremely loud blasts and 

other loud noises without the aid of hearing protection” 

during his service in the Marine Corps. Informal Opening 

Br. at 3. 

In January 2013, Mr. Behunin submitted an intent to 

file a claim for service-connected bilateral hearing loss and

tinnitus. Decision, 2023 WL 5197313, at *1. He then filed

his claim two months later. Id. In January 2014, the Department of Veterans Affairs (VA) granted service connection for both disabilities. Id. The VA initially assigned an 

effective date of March 2013 but later revised this date to 

January 2013. Id.

Relevant to this appeal, Mr. Behunin filed a notice of 

disagreement seeking an earlier effective date of April 13, 

1963, one day after his discharge from the Marine Corps.1 

1 The record is inconsistent about whether his discharge date is April 12 or 13. The precise date is immaterial for this appeal.

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BEHUNIN v. MCDONOUGH 3

Id.; Appx. 9, 60.2 Mr. Behunin contended that he would 

have sought disability benefits immediately after being discharged but was dissuaded because “at the time of his discharge from the Marine Corps, a processing administrative 

officer advised him against seeking VA benefits.” Decision, 

2023 WL 5197313, at *2. He argued that the VA should 

consider this conversation with the administrative officer 

as an informal claim for service connection. Id.

The Board rejected this argument. It could not identify 

“any evidence of filing or intent to file a claim for benefits 

prior to January 25, 2013.” Appx. 10. It also found Mr. Behunin’s account uncorroborated at least because the name 

of the processing administrative officer was “not in any of 

the Veteran’s separation documents” from 1963. Id.

On appeal, the Veterans Court affirmed. It found that 

“the Board clearly erred” because “the administrative officer’s name clearly appears on Mr. Behunin’s DD-214.” 

Decision, 2023 WL 5197313, at *3. But according to the 

Veterans Court, this error was harmless because the conversation with the administrative officer would not count 

as an informal claim, which must be in writing. Id. at *4. 

The Veterans Court further rejected Mr. Behunin’s contention that he would have filed a claim but for this conversation with the administrative officer, determining that

“equitable estoppel is not available to override the claimfiling effective date limits of [38 U.S.C. § 5110]” and 

“[e]quitable tolling is also unavailable.” Id. at *4 (citing 

Taylor v. McDonough, 71 F.4th 909, 927–28 (Fed. Cir. 

2023) (en banc); Arellano v. McDonough, 1 F.4th 1059, 1083 

(Fed. Cir. 2021) (Chen, J., concurring)).

Mr. Behunin timely appealed. 

2 “Appx.” refers to the appendix filed with the government’s response brief, ECF No. 14. 

Case: 24-1031 Document: 23 Page: 3 Filed: 05/21/2024
4 BEHUNIN v. MCDONOUGH

II.

We lack jurisdiction to hear this appeal. We have jurisdiction to decide “questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C.

§ 7292(d)(1). Unless an appeal presents a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as 

applied to the facts of a particular case.” Id. § 7292(d)(2).

Mr. Behunin does not present any legal challenges to 

the Veterans Court’s decision. He argues that “special and 

unusual circumstances” permit us to toll the effective-date 

limits of 38 U.S.C. § 5110 because he “was misinformed 

about VA benefits eligibility.” Informal Opening Br. 13. 

He does not dispute that he first submitted a written intent 

to file a claim for benefits in January 2013. See id. at 7, 13. 

We lack jurisdiction to review the Veterans Court’s application of 38 U.S.C. § 5110 to the facts of this case. 

38 U.S.C. § 7292(d)(2).3

Mr. Behunin also appears to challenge certain factual 

determinations as to whether he was properly informed of 

his eligibility for VA benefits. See Informal Opening 

Br. 10–11, 13–14. We also lack jurisdiction to review those

factual challenges. 38 U.S.C. § 7292(d)(2).

III.

We have considered Mr. Behunin’s remaining arguments and find them unpersuasive. This appeal is therefore dismissed because we lack jurisdiction.

3 To the extent Mr. Behunin presents a legal challenge, the Veterans Court was correct in relying on precedent to determine that neither equitable tolling nor 

equitable estoppel apply to 38 U.S.C. § 5110. See Arellano 

v. McDonough, 598 U.S. 1, 4, 8–10 (2023) (equitable tolling); Taylor, 71 F.4th at 927–28 (equitable estoppel).

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BEHUNIN v. MCDONOUGH 5

DISMISSED

COSTS

No costs.

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