Eugene W. Jarog v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EUGENE W. JAROG,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1548
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-4229, Judge Joseph L. Toth.
______________________
Decided: April 3, 2024
______________________
EUGENE W. J AROG, Honolulu, HI, pro se.
MEREDYTH COHEN HAVASY , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, WILLIAM J AMES G RIMALDI,
P ATRICIA M. MC CARTHY .
______________________
Before L OURIE, REYNA , and CHEN, Circuit Judges.
Case: 23-1548 Document: 74 Page: 1 Filed: 04/03/2024

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JAROG v. MCDONOUGH 2
P ER CURIAM .
Eugene W. Jarog appeals from an order of the United
States Court of Appeals for Veterans Claims (“the Veterans
Court”) dismissing his appeal from the Board of Veterans’
Appeals (“the Board”) as untimely. Jarog v. McDonough,
No. 22-4229, 2022 WL 14770657 (Vet. App. Oct. 26, 2022)
(“Decision”). For the reasons detailed below, we dismiss
Jarog’s appeal for lack of jurisdiction.
BACKGROUND
Jarog served in the United States Marine Corps from
May 1961 to March 1964. SAppx. 21.1 In 2016, Jarog re-
ceived rating decisions from the Department of Veterans
Affairs (“VA”) Regional Office (“RO”) for post-traumatic
stress disorder (“PTSD”), a left thumb injury, and an eye
disorder. SAppx. 8. Jarog appealed those rating decisions
to the Board, and after a remand, the Board issued its de-
cision on June 22, 2020. SAppx. 7, 9. The Board held that
Jarog had established a service connection for his PTSD
and that Jarog’s thumb injury met the criteria for the max-
imum schedular rating of 20 percent. SAppx. 8. However,
the Board also determined that Jarog had not established
service connection for his eye disorder. Id.
On July 12, 2022, Jarog filed a notice of appeal of that
June 2020 Board decision to the Veterans Court, and the
government subsequently moved to dismiss his appeal as
untimely. Decision at *1. The Veterans Court held that
Jarog’s appeal was indeed untimely under 38 U.S.C.
§ 7266(a) and that it could therefore only be accepted if eq-
uitable tolling was warranted. Id. The court then deter-
mined that Jarog failed to sufficiently demonstrate a
connection between an extraordinary circumstance and his
1 “SAppx.” refers to the supplemental appendix that
the government filed in this court with its informal re-
sponse brief.
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JAROG v. MCDONOUGH 3
failure to timely file an appeal. Id. Accordingly, the Vet-
erans Court held that equitable tolling should not be ap-
plied and dismissed Jarog’s appeal. Id. at *1–2. This
appeal followed.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review the validity of a decision
with respect to a rule of law or interpretation of a statute
or regulation that was relied upon by the Veterans Court
in making its decision. 38 U.S.C. § 7292(a). However, ex-
cept with respect to constitutional issues, we may not re-
view challenges to factual determinations or challenges to
the application of a law or regulation to the facts of a case.
38 U.S.C. § 7292(d)(2).
In reviewing a Veterans Court decision, we decide “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
We may set aside any interpretation thereof “other than a
determination as to a factual matter” relied upon by the
Veterans Court that we conclude is “(A) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law; (B) contrary to constitutional right, power, privi-
lege, or immunity; (C) in excess of statutory jurisdiction,
authority, limitations, or in violation of a statutory right;
or (D) without observance of procedure required by law.”
Id. We review questions of statutory and regulatory inter-
pretation de novo. Andre v. Principi, 301 F.3d 1354, 1358
(Fed. Cir. 2002) (citing Maggitt v. West, 202 F.3d 1370,
1374 (Fed. Cir. 2000)).
In this appeal, Jarog primarily argues that the Board
should have assigned an earlier effective date to the service
connection for his PTSD. Jarog asserts that the Board
should have assigned an effective date of April 1962 to that
service connection, and he alleges that the Board instead
improperly assigned it an effective date of December 2002.
As such, he claims that the Board committed clear and
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JAROG v. MCDONOUGH 4
unmistakable error (“CUE”). Although the Board’s deci-
sion is unclear regarding the effective date of the service
connection for Jarog’s PTSD, the exact date is irrelevant
because its determination involves the application of law to
the facts of Jarog’s instant case. By statute, “the effective
date of an award . . . shall be fixed in accordance with the
facts found,” 38 U.S.C. § 5110(a)(1), and that determina-
tion involves an examination of a veteran’s service and
medical records.
Jarog also raises contentions regarding possible inju-
ries to his right leg and left ear. However, neither of those
injuries was mentioned in the Board or Veterans Court de-
cisions underlying this appeal. As such, a determination
that Jarog possesses those injuries, and whether or not
they may be compensable, would involve factual determi-
nations and the application of law to those findings in the
first instance.
Finally, Jarog argues that the Veterans Court’s August
2022 Statement of the Case contained two instances of
CUE: (1) a determination that Jarog is single with no de-
pendents and (2) a determination that Jarog served during
peacetime. Jarog contends that he does have dependent
individuals, citing monetary contributions to a “sister fam-
ily” and a charity. Furthermore, Jarog asserts that his pe-
riod of active service did not occur during peacetime given
the ongoing Cuban Missile Crisis. Appellant’s Br. at 15.
However, those are likewise arguments regarding factual
determinations by the Veterans Court.
Furthermore, Jarog does not raise any constitutional
issues involving those contentions and states in his brief
that the Veterans Court did not decide any constitutional
issues in its decision. Appellant’s Br. at 2.
Each of Jarog’s arguments on appeal therefore con-
cerns factual determinations or the application of law to
the facts of his case, in the absence of any constitutional
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JAROG v. MCDONOUGH 5
issues. Accordingly, we do not possess jurisdiction to de-
cide this appeal under 38 U.S.C. § 7292.
CONCLUSION
We have considered Jarog’s remaining arguments, but
we find them unpersuasive. For the foregoing reasons, we
dismiss his appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
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