Claiborne Merritt v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7040
CLAIBORNE MERRITT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Claiborne Merritt, of Homer, Louisiana, pro se.
Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Mark A. Melnick, Assistant Director. Of counsel on the brief were
Michael J. Timinski, Deputy Assistant General Counsel, and Rachael T. Shenkman,
Attorney, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7040
CLAIBORNE MERRITT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 07-1625.
___________________________
DECIDED: July 9, 2009
___________________________
Before LOURIE, RADER, and MOORE, Circuit Judges.
PER CURIAM.
Claiborne Merritt appeals from a decision of the U.S. Court of Appeals for
Veterans Claims (Veterans Court), Merritt v. Peake, No. 07-1625 (Vet. App. Nov. 13,
2008), affirming a Board of Veterans’ Appeals (Board) decision denying entitlement to
an earlier effective date of service connection for post-traumatic stress disorder (PTSD).
For the reasons discussed below, we affirm.
Mr. Merritt served on active duty in the U.S. Army from June 1976 to October
1988 and from November 1990 to June 1991. He filed a claim for service connection
for PTSD in 1994 and submitted a Statement in Support of Claim in March 1995. In
October 1995, the Department of Veterans Affairs (VA) Regional Office (RO) informed

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Mr. Merritt that his service medical records were unavailable and requested that he
provide information to confirm his alleged stressors. In January 1996, the RO denied
service connection for PTSD, citing no evidence of “specific dates or places of traumatic
in-service stressful events.” The RO denied service connection in subsequent rating
decisions and eventually mailed an August 1997 rating decision to Mr. Merritt at a
homeless shelter in Shreveport, Louisiana. Mr. Merritt did not appeal this rating
decision.
On September 13, 1999, the RO received a letter from Mr. Merritt describing his
psychiatric and financial problems. The RO construed his letter as a request to reopen
the claim for service connection for PTSD. In response to a PTSD questionnaire sent
by the RO, Mr. Merritt described seeing and smelling the bodies of dead Iraqi soldiers
on a road called “Hell Alley” in February 1991. The RO denied Mr. Merritt’s claim in
January 2001 after the U.S. Armed Services Center for Research of Units Records was
unable to verify that Mr. Merritt traveled this road. Mr. Merritt filed a Notice of
Disagreement and later appealed to the Board. After resolving all doubt in Mr. Merritt’s
favor, the Board granted service connection for PTSD. The RO then assigned a 30%
disability rating effective September 13, 1999. The RO later increased his rating for
PTSD to 100% but denied his request for an earlier effective date. Mr. Merritt appealed.
The Board denied an earlier effective date, and the Veterans Court affirmed. The
Board found that (1) the RO’s August 1997 rating decision became final when Mr.
Merritt did not appeal and (2) the RO first received Mr. Merritt’s request to reopen his
claim on September 13, 1999. Accordingly, the Board concluded that Mr. Merritt was
not entitled to an effective date prior to September 13, 1999—i.e., the date of Mr.
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Merritt’s request to reopen his previously denied claim for service connection. Mr.
Merritt then advanced numerous arguments on appeal to the Veterans Court, including:
(1) that the RO’s August 1997 rating decision never became final because he never
received a copy of the rating decision, (2) that the August 1997 decision contains clear
and unmistakable error (CUE), and (3) that his due process rights were violated at the
time of discharge from military service. The Veterans Court, citing Mindenhall v. Brown,
7 Vet. App. 271, 274 (1994) and Hyson v. Brown, 5 Vet. App. 262, 265 (1993),
explained that the RO was required only to mail a notice of the August 1997 decision
and that Mr. Merritt was required to keep the VA informed of a reliable address for
receiving such notice. Because Mr. Merritt admitted that he was homeless and living
part-time at the Shreveport homeless shelter to which the RO mailed the August 1997
rating decision, the Veterans Court concluded that the VA properly discharged its duty
to notify Mr. Merritt of its decision. Furthermore, the Veterans Court held that it lacked
jurisdiction to hear Mr. Merritt’s arguments regarding CUE and due process because he
never raised them before the Board. The Veterans Court thus affirmed the Board’s
decision maintaining an effective date of September 13, 1999.
Mr. Merritt appeals from the Veterans Court’s decision, and we have jurisdiction
under 38 U.S.C. § 7292(c). Our jurisdiction is limited to considering “challenge[s] to the
validity of a statute or regulation or any interpretation thereof” and to “interpret[ing]
constitutional and statutory provisions, to the extent presented and necessary to a
decision.” Id. Absent a constitutional issue, we cannot review factual determinations or
“challenge[s] to a law or regulation as applied to the facts of a particular case.” Id.
§ 7292(d)(2).
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2009-7040 4
On appeal, Mr. Merritt asserts that it was unfair and arbitrary to send notification
to the homeless shelter. It is certainly true that the RO was required to notify Mr. Merritt
of the RO’s August 1997 rating decision, including an explanation of the procedure for
obtaining review of the decision, under 38 U.S.C. § 5104(a). The VA mailed notice to
the last known address for Mr. Merritt, the homeless shelter. As the Veterans Court
concluded, the claimant is responsible for keeping the Secretary informed of the
address to which notification should be sent. Hyson, 5 Vet. App. at 265. We find no
legal error in this case, and we are not permitted by the limits of our jurisdiction to
review factual challenges. We have reviewed Mr. Merritt’s other arguments and have
determined that they are without merit.
For the foregoing reasons, we affirm the decision of the Veterans Court.
COSTS
No costs.

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