Excell R. Whitney v. Robert Wilkie, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

EXCELL R. WHITNEY,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2019-2329
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3859, Judge Amanda L. Mere-
dith.
______________________

Decided: February 11, 2020
______________________

E
XCELL R. WHITNEY, Chicago, IL, pro se.

IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by J
OSEPH
H. HUNT, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN,
JR.; BRIAN D. GRIFFIN, EVAN SCOTT GRANT, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
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WHITNEY v. WILKIE 2
______________________

Before NEWMAN, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
Excell Whitney, an Army veteran proceeding pro se,
seeks an earlier effective date for his award of compensa-
tion for migraine headaches, a back disability, and an an-
kle disability. Whitney raises two issues on appeal. First,
Whitney challenges the determination by the Court of Ap-
peals for Veterans’ Claims that Whitney filed his migraine
disability claim on October 5, 1990. Second, Whitney chal-
lenges the Veterans Court’s determination that the “al-
tered evidence” rule set forth in Cushman v. Shinseki, 576
F.3d 1290, 1298–99 (Fed. Cir. 2009), does not apply to his
case. Although we have jurisdiction to review certain con-
stitutional and legal issues decided by the Veterans Court,
we are statutorily prohibited from reviewing the court’s
factual determinations or the court’s application of law to
particular facts. 38 U.S.C. § 7292(d)(2). Both of the issues
raised by Whitney involve factual findings or application of
law to facts. We therefore lack jurisdiction to hear either
of Whitney’s challenges, and we dismiss this appeal.
BACKGROUND
A. Disability Compensation Claims
Whitney served on active duty in the U.S. Army from
1978 to 1980. In January 1981, Whitney filed service con-
nection disability claims for a back disability, a right ankle
disability, and seizures.
1
In August 1981, the Veterans Af-
fairs Regional Office (“Regional Office”) denied disability
compensation for Whitney’s claims. Whitney never

1
Whitney raised a number of other disability claims
not relevant to this appeal.
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WHITNEY v. WILKIE 3
appealed the denial of these claims, rendering the August
1981 decision final.
On October 5, 1990, Whitney filed a request to “reopen
or refile” his disability compensation claims for a back dis-
ability, a right ankle disability, and migraine headaches.
Between 1991 and 2014, the Regional Office and the Board
of Veterans’ Appeals (“Board”) rendered a number of deci-
sions that resulted in the Regional Office granting disabil-
ity compensation for all three disabilities. The Regional
Office determined that all three disabilities were entitled
to an effective date of October 5, 1990—the date of Whit-
ney’s refiled claims. Whitney appealed the Regional Of-
fice’s determination to the Board, seeking an effective date
of January 1981—the date of Whitney’s originally filed
claims. The Board denied Whitney’s request for an earlier
effective date, and Whitney appealed the Board’s decision
to the Court of Appeals for Veterans’ Claims (“Veterans
Court”).
B. Veterans Court
The Veterans Court affirmed the Board’s denial of
Whitney’s request for an earlier effective date.
With respect to Whitney’s migraine headache claim,
the Veterans Court found that Whitney never expressly or
impliedly communicated his intent to file a claim for head-
aches before October 5, 1990. The Veterans Court rejected
Whitney’s argument that he had informally sought a ser-
vice connection for headaches in January 1981. Whitney’s
1981 claim for seizures, the Veterans Court explained, did
not constitute an informal claim for headaches because “a
seizure is not a headache.” J.A. 23. The Veterans Court
further explained that the mention of headaches in Whit-
ney’s 1981 VA medical records was not an informal claim
for headaches because “evidence of a disability is not a
claim.” J.A. 23.
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WHITNEY v. WILKIE 4
With respect to Whitney’s back and right ankle claims,
the Veterans Court determined that Whitney’s 1981 claims
had been finally adjudicated, and thus Whitney could not
rely on those original claims as a basis for an earlier effec-
tive date. The Veterans Court explained that the Regional
Office’s 1981 denial of Whitney’s claims became final when
Whitney failed to appeal those decisions. Whitney’s 1990
back and right ankle claims were thus “claims to reopen”
after a final adjudication and were thus only entitled to ef-
fective dates as of his filing of the claims to reopen: October
5, 1990.
The Veterans Court rejected four other arguments
raised by Whitney. Specifically, the Veterans Court deter-
mined that: (i) the “unavailable records” exception in 38
C.F.R. § 3.156(c)(3) did not apply to his case; (ii) the “new
and material evidence” provisions of 38 C.F.R. § 3.400(q)
did not apply to his case; (iii) the “altered evidence” rule set
forth in Cushman, 576 F.3d at 1298–99, did not apply to
his case; and (iv) the rule for waiving the timeliness re-
quirement, as set forth in Percy v. Shinseki, 23 Vet. App.
37, 45 (2009), did not apply to his case.
The Veterans Court thus denied Whitney’s request for
an effective date earlier than October 5, 1990. Whitney
timely appealed.
A
NALYSIS
Our jurisdiction to review decisions by the Veterans
Court is limited by 38 U.S.C. § 7292. We have jurisdiction
“to review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof . . . and
to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c) (2006). But we lack jurisdiction to “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,” unless those challenges present Constitutional is-
sues. Id. § 7292(d)(2). While pro se pleadings are to be
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WHITNEY v. WILKIE 5
liberally construed, the pro se plaintiff must nonetheless
establish jurisdiction. Reynolds v. Army & Air Force Exch.
Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
Whitney raises two challenges on appeal: (i) he chal-
lenges the Veterans Court’s factual determination that
Whitney first filed his migraine disability claim on October
5, 1990; and (ii) he challenges the Veterans Court’s appli-
cation of Cushman v. Shinseki to the facts of his case. We
lack jurisdiction to consider either challenge.
First, Whitney challenges the Veterans Court’s effec-
tive date determination by asserting that, in 1981, he “pre-
sented enough information to raise if not a formal
claim . . . an informal claim for the [migraine] disability.”
Appellant Br. 2. The factual determination of “when a dis-
ability was claimed or service connection was established
[is] not subject to our review.” Butler v. Shinseki, 603 F.3d
922, 926 (Fed. Cir. 2010); see also Bonner v. Nicholson, 497
F.3d 1323, 1328 (Fed. Cir. 2007). Likewise, the factual de-
termination of whether a veteran sufficiently filed an infor-
mal disability claim is not subject to our review. Ellington
v. Peake, 541 F.3d 1364, 1371 (Fed. Cir. 2008). We there-
fore lack jurisdiction to review Whitney’s first challenge.
Second, Whitney challenges the Veterans Court’s de-
termination that Cushman v. Shinseki, 576 F.3d at 1290,
does not apply to the facts of his case. Appellant Br. 2 (stat-
ing the second issue on appeal as “[w]hether the law in
cushman v. stopping . . . extends to this veterans case”).
We lack jurisdiction to review “a challenge to a law or reg-
ulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2). To the extent Whitney’s brief can be
liberally construed as challenging other aspects of the Vet-
erans Court’s decision, we conclude that those arguments
would also be as-applied legal challenges over which we
lack jurisdiction. Id. We therefore lack jurisdiction to re-
view Whitney’s second challenge.
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WHITNEY v. WILKIE 6
CONCLUSION
Whitney’s appeal challenges the Veterans Court’s fac-
tual findings and the Veterans Court’s application of law to
Whitney’s particular case. Under 38 U.S.C. § 7292(d)(2),
we may not consider these challenges. We must therefore
dismiss this appeal.
DISMISSED
C
OSTS
No costs.
Case: 19-2329 Document: 15 Page: 6 Filed: 02/11/2020