N OTE : This disposition is nonprecedential.


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

______________________
ROGER A. ANDERSON, Claimant

- Appellant

v.

DAVID J. SHULKIN, SECRETARY OF VETERAN S AFFAIRS, Respondent

- Appellee

______________________

2017

- 2197

______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 15

- 3830, Senior Judge Alan G.
Lance , Sr.

______________________

Decided: November 1 3 , 2017

______________________

R OGER A. A NDERSON , Cottage Grove, MN, pro se.

I SAAC B. R OSENBERG , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent

- appellee. Also repr esented by C HAD A. R EADLER
, R OBERT E. K IRSCHMAN
, J R
., C LAUDIA B URKE ; B RIAN D. G RIFFIN
, D EREK S CADDEN
, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.ANDERSON v. SHULKIN 2

______________________

Before L OURIE
, R EYNA
, and T ARANTO
, Circuit Judges.

P ER C URIAM

. Roger A. Anderson appeals from the decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals decision denying
Mr. Anderson’s claimed entitlement to an earlier effective date for his ser vice

- connect ed ischemic heart disease. For the reasons discussed below, we dismiss this appeal for lack of jurisdiction.

B ACKGROUND

Mr. Anderson is a veteran who served in the United States Army. He served on active duty from September 1967 to September 1970, and his service included a period in the Republic of Vietnam where he presumptively was exposed to Agent Orange.

In July 2001, Mr. Anderson initiated a claim with the St. Paul, Minnesota Regional Office (“RO”) seeking service connection for his T yp e 2 diabetes and high blood pre ssure

. In a February 2002 rating decision, the RO granted his request for service connection for his diabetes and high blood pressure, and assigned an effective date of July 9, 2001.

Ten years later, in July 2011, Mr. Anders on filed a claim with the RO seeking service connection for a blun ted heart rate response to exercise with possible myocard ial ischemia. In an October 2011 rating decision, the RO denied service connection for a lack of clinical diagnosis of this conditio n. Mr. Anderson filed a notice of disagre ement against th e decision, but he did not file an appeal. Accordingly, the RO’s October 2011 decision became final

one year after it issued. 38 C.F.R. § 20.302.ANDERSON v. SHULKIN 3

In November 2012, Mr. Anderson sought to reopen hi s claim for service connection for heart disease. The RO granted the request, noting that ischemic heart disease was recently added to the list of disabilities recognized as being related to herbicide exposure and that Mr. Anderson established a clinical diagnosis in a Jan uary 2013 examination. The RO assigned a 100

- percent disability rating and an effective date of November 9,
2012

, the date Mr. Anderson had sought to reopen his claim.

In March 2014, Mr. Anderson appealed the RO’s effe ctive date determination to the Board of Veterans’ Appeals (“ Board ”)

. On September 21, 2015, the Board denied
Mr. Anderson’s claim, and maintained the November 9, 2012 effective date.

In making this decision, t he Board cited the applic able law governing Mr. Anders on’s effective date for his heart condition. “[T]he effective date of an evaluation and award of pension, compensation or dependency and i ndemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitl ement rose, whichever is the later.” App. 8; 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. T he Board reasoned that the later dat e of Mr. Anderson’s November 2012 request to reopen his claim for service

- connected heart disease controlled. The Board next addressed Mr. Anderson’s three arguments.

First, Mr. Anderson argued the information he su bmitted in support of his 2001 claim for diabetes and high blood pressure also supported his claim for service

connected heart disease . T he Board disagreed. W hile recognizing that a veteran may claim benefits informally and that the Board had a duty to “fully and sympathet ically develop a Veteran’s claim to its optimum,” the Board reasoned that Mr. Anderson “did not assert prior toANDERSON v. SHULKIN 4

2011

— either expressly or impliedly

— that he had a heart disorder which should be service

- connected.” App. 10.

Second, although Mr. Anderson alleged that he had heart disease in 2001, the Board reasoned that even if true, this date was n ot controlling because the later date between the onset of a condition and a request to reopen service connection controls. App. 11.

Third, Mr. Anderson sought an earlier effective date based on certain regulations enacted in response to the Nehmer v. United States Veterans’ Administration class action litigation. However, the Board explained that those regulations would apply only if Mr. Anderson had submitted a claim for service

- connected heart disease before August 2010. In this case, the Board reas oned, the earliest date Mr. Anderson submitted a claim for service

connected heart disease was July 2011.

Mr. Anderson appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (“ Veterans Appeals Court ”) . The Veterans Appeals Court affirmed, finding that the Board did not clearly err in determining that November 9, 2012 was the proper effe ctive date for Mr. Anderson’s service

- connected heart disease. App. 2. Mr. Anderson argued that the info rmation he provided in support of his 2001 claim for diab etes and high blood pressure also supported his claim for heart disease, but the Veterans Appeals Court disagreed. It found that “the Board explicitly found that [Mr. Anderson] expressed no intent to file a heart disease claim in 2001, despite the submission of medical evi dence ” and the Veterans Appeals Court found no error in this determination. App. 3. In response to Mr. Anderson’s argument that the evidence was in equipoise such that he was entitled to the benefit of the doubt, the Veterans Appeals Court reasoned that “the Board specifically determined that the evidence of record was not in equ i-ANDERSON v. SHULKIN 5

poise, and the app ellant has not demonstrated that t his determination was incorr ect.” App. 4.

Mr. Anderson sought reconsideration and panel r eview of the Veterans Appeals Court’s decision. In Febr uary 2017, the Veterans Appeals Court denied his reconsideration request but granted the motion to the extent it sought panel review. In March 2017,
Mr. Anderson moved for review by the full Veterans Appeals Court, which the Veterans Appeals Court denied on April 7, 2017. Mr. Anderson timely appealed to this

court

. D ISCUSSION
Our jurisdiction to review Veterans Appeals Court d ecision s is limited by statute. Unless an appeal raises a constitutional issue, we lack jurisdiction to review “a challenge to a factual determination” or a “challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).

Mr. Anderson does not challenge the validity of any statute or regulation or the interpretation thereof. See 38 U.S.C. § 7292(d)(1). The Veterans Appeals Court’s review of the Board’s denial of an earlier effective date for
Mr. Anderson’s service

- connected heart disease involves only the application of law to fact.

Mr. Anderson makes a number of arguments that all hinge on whether the information he provide d in 2001 amounted to a claim for service

- connected heart disease. However, “the factual findings of when a disability was claimed or service connection established are not subject to our review.” Butler v. Shinseki , 603 F.3d 922, 926 (Fed. Cir. 2010). Nor do we possess jurisdiction to review the Veterans Appeals Court ’ s conclusion that the Board satisfied its obligation to sympathetically construe
Mr. Anderson’s claims. See Ellington v. Peake , 541 F.3d 1364, 1372 (Fed. Cir. 2008). Finally , we lack jurisdictionANDERSON v. SHULKIN 6

to review the Veterans Appeals Court ’ s conclusion that the Board correctly determined that the evidence was not in equipoise

. See Ferguson v. Principi , 273 F.3d 1072, 1075 (Fed. Cir. 2001). Because Mr. Anderson’s arguments all center on the application of law to fact, namely whet her his 2001 claim amounted to a claim for service

connected heart disease, we lack jurisdiction to hear this appeal.

C ONCLUSION

Mr. Anderson’s appeal from the Veterans Appeals Court is dismissed

. DISMISSED

C OSTS

No c osts.