Regina A. Echols v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
REGINA A. ECHOLS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7090
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2636, Chief Judge Bruce E.
Kasold.
______________________
Decided: October 10, 2013
______________________
REGINA A. ECHOLS , of Homestead, Florida, pro se.
M EEN G EU O H , Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were S TUART F. D ELERY , Acting
Assistant Attorney General, JEANNE E. D AVIDSON , Direc-
tor, and SCOTT D. AUSTIN , Assistant Director. Of counsel
on the brief were DAVID J. B ARRANS , Deputy Assistant
General Counsel, and CHRISTINA L. G REGG , Attorney,

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ECHOLS v. SHINSEKI 2
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before REYNA, M AYER, and TARANTO , Circuit Judges.
PER C URIAM.
Regina A. Echols appeals a final decision of the Unit-
ed States Court of Appeals for Veterans Claims (“Veter-
ans Court”) denying her claim for an earlier effective date
for the award of disability compensation for a lower back
disorder. See Echols v. Shinseki, No. 11-2636, 2013 U.S.
App. Vet. Claims LEXIS 379 (Vet. App. Mar. 15, 2013)
(“Veterans Court Decision”). Because the issues raised by
Echols fall outside the scope of our appellate jurisdiction,
we dismiss her appeal.
BACKGROUND
Echols served in the United States Army from Octo-
ber 1986 until August 1994. In October 1994, a Regional
Office (“RO”) of the Department of Veterans Affairs (“VA”)
awarded her service connection for a lower back disabil-
ity, but assigned her a non-compensable rating of zero
percent. Echols did not appeal the RO’s decision and it
became final.
Ten years later, in September 2004, Echols filed a
claim seeking an increase in her disability rating. Follow-
ing a VA medical examination, Echols was awarded a
forty percent rating for her lower back condition. The
effective date for the award was September 16, 2004, the
date she filed her claim for an increased rating. Echols
subsequently filed a claim seeking an earlier effective
date, but the Board of Veterans’ Appeals (“board”) denied
her claim in August 2007.
Echols then appealed to the Veterans Court. In Jan-
uary 2009, the court granted the parties’ joint motion to
remand the case to the board for further development. On

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ECHOLS v. SHINSEKI 3
remand, the board reviewed medical records both from
the VA and from Echols’ private physicians, but again
denied Echols’ request for an earlier effective date. The
board determined that: (1) there were no medical records,
prior to September 16, 2004, demonstrating an increase in
the severity of Echols’ lower back disability; and (2)
Echols had not made an informal claim for an increased
rating prior to that date. On appeal, the Veterans Court
affirmed, concluding that the board’s findings were “plau-
sible and not clearly erroneous.” Veterans Court Decision,
2013 U.S. App. Vet. Claims LEXIS 379, at *3. Echols
then filed a timely appeal with this court.
D ISCUSSION
This court’s authority to review decisions of the Vet-
erans Court is circumscribed by statute. Pursuant to 38
U.S.C. § 7292(a), we have jurisdiction to review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
decision.” Except to the extent that a constitutional issue
is presented, however, this court may not review “a chal-
lenge to a factual determination,” or “a challenge to a law
or regulation as applied to the facts of a particular case.”
Id. § 7292(d)(2); see Bastien v. Shinseki, 599 F.3d 1301,
1305 (Fed. Cir. 2010); Cook v. Principi, 353 F.3d 937, 939
(Fed. Cir. 2003).
Echols argues that the Veterans Court erred in af-
firming the board’s determination that she was not enti-
tled to an effective date prior to September 16, 2004.
Although the effective date for an award of increased
disability benefits generally cannot be earlier than the
date the claim for increase was filed, a veteran can obtain
an earlier effective date if it is “factually ascertainable”
that the disability increased in the year prior to the date
of the claim. See 38 C.F.R. § 3.400(O)(2). Here, however,

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ECHOLS v. SHINSEKI 4
the Veterans Court affirmed the board’s determination
that the medical evidence did not show an increase in
Echols’ lower back disability prior to the date of her claim.
Whether the medical evidence was sufficient to demon-
strate an increase in the severity of Echols’ condition is a
factual determination which this court lacks jurisdiction
to review. See Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000) (“The weighing of . . . evidence is not
within our appellate jurisdiction.”).
Echols further contends that she made informal
claims for an increased rating prior to September 16,
2004. See 38 C.F.R. § 3.155(a) (providing that “[a]ny
communication or action” which demonstrates “an intent
to apply for one or more [VA] benefits” can potentially
qualify as an informal claim). In support, she argues that
certain medical records qualify as informal claims because
they show that she “sought medical treatment and pain
medication throughout the 1990s until and including the
present day.” The Veterans Court, however, determined
that the medical records cited by Echols did “not demon-
strate that [her] disability had worsened from its non-
compensable status” and therefore could not qualify as
informal claims for an increased rating. Veterans Court
Decision, 2013 U.S. App. Vet. Claims LEXIS 379, at *2.
Specifically, the court concluded that none of the medical
records relied upon by Echols established “range-of-
motion limitations or the other qualifications for a 10%
rating.” Id. As noted previously, we have no jurisdiction
to review the factual question of whether Echols’ medical
records were sufficient to establish a compensable in-
crease in her lower back disability.
In her informal appeal brief, Echols argues that the
Veterans Court “did not comprehend the clearly erroneous
standard” and “fail[ed] to interpret the law, statutes and
regulations properly in considering whether or not” she
was entitled to an earlier effective date. In substance,
however, Echols’ appeal does not involve any issue of

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ECHOLS v. SHINSEKI 5
statutory or regulatory interpretation, but instead pre-
sents only challenges to the factual underpinnings of the
decision denying her an earlier effective date. See Living-
ston v. Derwinski, 959 F.2d 224, 225 (Fed. Cir.
1992) (“[T]he mere recitation of a basis for jurisdiction by
either party or a court . . . is not controlling; we must look
to the true nature of the action.”). Accordingly, we dis-
miss her appeal for lack of jurisdiction.
DISMISSED

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