Eddie Howard v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

EDDIE HOWARD,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7044

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-3512, Chief Judge Bruce
E. Kasold.

ON MOTION

Before GAJARSA, MAYER and PROST, Circuit Judges.
PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and to dismiss Eddie
Howard's appeal from the United States Court of Appeals

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for Veterans Claims' judgment in Howard v. Shinseki, 08-
3512, for lack of jurisdiction.

Howard served on active duty in the U.S. Marine
Corps from June 1967 until his dishonorable discharge in
March 1970. In May 1979, a Department of Veterans
Affairs regional office (RO) denied Howard entitlement to
disability benefits for post traumatic stress disorder
(PTSD) based on his discharge status. Although that
determination became final when Howard failed to perfect
his appeal with the Board, the matter was reopened in
2004 after Howard had submitted new and material
evidence. In light of the full evidence of record, the RO
awarded Howard entitlement to service-connected disabil-
ity benefits for his PTSD and changed his status to hon-
orably discharged. The RO assigned the effective date of
his award as January 28, 2002 - the date of receipt of his
claim to reopen.

Seeking an earlier effective date, Howard argued that
the May 1979 RO decision denying him benefits based on
his discharge status should be revised because it rested on
clear and unmistaken error (CUE). The Board of Veter-
ans' Affairs denied that request on the basis that the
change in discharge status did not rest on a clear legal
error but rather a reweighing all of the facts and evidence
now of record. On appeal, the Court of Appeals for Veter-
ans Claims affirmed.

Although Howard seeks this court's review in order to
grant his request to award him an earlier effective date,
this court's jurisdiction over appeals from decisions of the
Court of Appeals for Veterans Claims is limited. See 38
U.S.C. § 7292; Forshey v. Principi, 284 F.3d 1335, 1338
(Fed. Cir. 2002) (en banc). This court "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 particu-
lar case." 38 U.S.C. § 7292(d)(2).

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In light of this court's jurisdictional limitations, we
must dismiss Howard's appeal. Howard's informal brief
does not make any argument that his appeal involves the
validity or interpretation of a statute or regulation.
Howard also admits that his appeal does not involve any
constitutional issue that this court may have authority to
review. To the extent that Howard argues that the Court
of Appeals for Veterans Claims misapplied the law of
CUE to the facts of his case, that challenge is also outside
of this court's limited jurisdiction.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motions are granted. The appeal
is dismissed.

(2) Each side shall bear its own costs.

FOR THE COURT

JUN 22_2011

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JUN 2 2 2011

cc: Eddie Howard
Tara K. Hogan, Esq.
s20

Issued As A Mandate:

JUN 2 2 2011

JAN HORBALY
CLERK