Tore 0. Arnesen v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7086
TORE 0. ARNESEN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in
07-0444, Judge Alan G. Lance, Sr.
ON MOTION
Before MAYER, CLEVENGER, and RADER, Circuit Judges.
PER CURIAM
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir.
R. 27(f) and dismiss for lack of jurisdiction Tore 0. Arensen's appeal from a decision of
the United States Court of Appeals for Veterans Claims affirming the Board of Veterans'
Appeals decision denying Arnesen's claims for an increased evaluation for his bilateral
knee condition and an earlier effective date of disability for his left knee. Arnesen
opposes. The Secretary replies. Arnesen moves for leave to file a response to the
Secretary's reply.
Arnesen served in the military from July 1966 to March 1970. In March 1970,
Arnesen filed a claim seeking service connection for arthritis in his right knee. The
Department of Veterans Affairs (DVA) granted him a 10-percent disability rating.
Arnesen then sought service connection for a left knee condition in May 1970, which the

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DVA denied. After numerous appeals and submissions, in December 1990, the DVA
granted Arnesen a 10-percent disability rating for his left knee, effective February 14,
1986. Subsequently, the DVA combined the diagnostic code for his left and right knees,
resulting in a 20% combined disability evaluation.
Following various appeals to the Board, the Court of Appeals for Veterans Claims
affirmed the Board's decision denying Arnesen's claim for an increased disability rating
overall and an earlier effective date for his left knee condition. The Court of Appeals for
Veterans Claims concluded that the Board acted within its discretion in denying his
disability rating and in refusing an earlier effective date for Arnesen's left knee condition.
Additionally, the Court of Appeals for Veterans Claims concluded that pursuant to 38
U.S.C. § 7252(b), it did not have jurisdiction to review Arneson's claim requesting
review of the provisions of the VA's rating schedule. Arnesen appealed to this court.
The Secretary moves this court to dismiss Arnesen's appeal because he does
not raise any issue in his informal brief within this court's jurisdiction. Our jurisdiction to
review decisions of the Court of Appeals for Veterans Claims is limited. See 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 particular case." 38 U.S.C. § 7292(d)(2). Additionally, this court
may not review "a refusal [by the Court of Appeals for Veterans Claims] to review the
schedule of ratings for disabilities." 38 U.S.C. § 7292(a).
In his informal brief, Arnesen essentially argues that the DVA's present method
of rating disabilities is unlawful and does not meet current medical standards and that
the Board did not consider the proper evidence in determining the effective date for his
2009-7086 - 2 -

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left knee condition. Because Arnesen fails to raise an issue within our jurisdiction, we
must dismiss this appeal.
Accordingly,
IT IS ORDERED THAT:
Arnesen's motion to file a response is granted.
The Secretary's motions are granted. The appeal is dismissed.
(3) Each side shall bear its own costs.
FOR THE COURT
JUL 3 0 2009 /s/Jan Horbaly
Date Jan Horbaly
Clerk
cc: Tore 0. Arnesen
John S. Groat, Esq.
FILE
s20 US. COURT OF FOR
THE FEDERAL CIRCUIT
JUL 3 0 2009
ISSUED AS A MANDATE: JUL 3 0 2009
JAHHONALY
CLERK
2009-7086
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