Thomas J. Kocon v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS J. KOCON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1560
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-2719, Judge Joseph L. Falvey,
Jr.
______________________
Decided: September 12, 2023
______________________
T HOMAS J. K OCON, Central Falls, RI, pro se.
J OSHUA D AVID T ULLY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
AMANDA BLACKMON, Y. K EN L EE , Office of General Counsel,
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Case: 23-1560 Document: 18 Page: 1 Filed: 09/12/2023

-- 1 of 5 --

KOCON v. MCDONOUGH 2
Before D YK, P ROST , and HUGHES , Circuit Judges.
P ER CURIAM .
Thomas J. Kocon appeals to this court from a decision
of the U.S. Court of Appeals for Veterans Claims (“Veter-
ans Court”). This court’s ability to review Veterans Court
decisions is strictly limited to certain types of issues. Be-
cause Mr. Kocon’s appeal does not raise the types of issues
we can review, we must dismiss his appeal for lack of juris-
diction.
I
Mr. Kocon served honorably in the U.S. Army from
May 1970 to January 1972. In 2003, he was granted disa-
bility pension benefits for non-service-connected schizo-
phrenia, and in 2004, he underwent a Department of
Veterans Affairs (“VA”) psychiatric examination confirm-
ing he had chronic schizophrenia, paranoid type.
In 2017, Mr. Kocon filed a claim for service-connected
disability compensation for his schizophrenia. A VA re-
gional office denied his claim because it found no connec-
tion between his condition and his military service.
Mr. Kocon appealed the regional office’s denial to the
Board of Veterans’ Appeals (“Board”). In May 2021, the
Board remanded his claim for further development, includ-
ing obtaining additional records and conducting a new VA
mental-health examination. The VA then requested that
Mr. Kocon provide the names and addresses of private
medical care providers who had treated him for schizophre-
nia. In response, Mr. Kocon identified Dr. Healey as hav-
ing examined him in 1968 during a high school gym class.
The record reflects that the VA attempted to obtain records
from Dr. Healey but was unable to do so because he was
deceased.
Case: 23-1560 Document: 18 Page: 2 Filed: 09/12/2023

-- 2 of 5 --

KOCON v. MCDONOUGH 3
In January 2022, Mr. Kocon received his new VA men-
tal-health examination. The examiner diagnosed him with
schizophrenia, paranoid type. The examiner also (1) found
no evidence linking Mr. Kocon’s condition to his military
service, (2) noted that Mr. Kocon had no history of mental-
health or behavioral issues while in the military and that
he rapidly advanced in rank, and (3) observed that there
were no records of Mr. Kocon seeking help or treatment for
any unusual thinking before or during his military service.
Mr. Kocon’s claim then returned to the Board. He ar-
gued that his schizophrenia preexisted and was aggravated
by his service, but the Board rejected that argument, rely-
ing on the absence of any psychological condition noted on
Mr. Kocon’s service entrance examination. SApp’x 11.1
Although the Board addressed Mr. Kocon’s statements con-
cerning Dr. Healey’s examination of him in high school, it
observed that there was no record of a diagnosis in high
school and that Dr. Healey had since died. See SApp’x 11.
The Board also found insufficient evidence that
Mr. Kocon’s condition began during or was caused by his
military service, noting that (1) his service records in-
cluded no complaint, diagnosis, or treatment for schizo-
phrenia or any other mental condition; (2) his service exit
examination was marked normal under psychiatric clinical
evaluation; and (3) review of his military personnel record
showed no remarks indicating that he was having diffi-
culty—indeed, he was repeatedly promoted. SApp’x 12.
The Board also relied on findings from the January 2022
medical examination. SApp’x 13–15. Ultimately, the
Board denied Mr. Kocon’s claim because there was not
enough evidence to show a connection between his condi-
tion and his military service. See SApp’x 16.
1 “SApp’x” refers to the supplemental appendix sub-
mitted with the government’s informal brief.
Case: 23-1560 Document: 18 Page: 3 Filed: 09/12/2023

-- 3 of 5 --

KOCON v. MCDONOUGH 4
Mr. Kocon appealed the Board’s decision to the Veter-
ans Court. The Veterans Court addressed two issues—
first, the Board’s determination that Mr. Kocon’s condition
did not preexist service; and second, the VA’s duty to assist
Mr. Kocon in obtaining evidence necessary to substantiate
his claim. On the first issue, the Veterans Court found no
clear error in the Board’s determination. SApp’x 7 (dis-
cussing the Board’s reliance on the January 2022 VA men-
tal-health examination and the lack of psychiatric
symptoms on Mr. Kocon’s service entrance and exit exami-
nations). On the second issue, the Veterans Court saw no
error in the VA’s efforts to assist Mr. Kocon. The court ob-
served that the VA tried to obtain records from Dr. Healey
but that he was deceased. And, although Mr. Kocon had
seemingly objected that the VA did not try to contact two
of his friends who were allegedly aware of his condition be-
fore he entered service, the Veterans Court determined
that (1) there was no evidence that either of these friends
created any relevant records, and (2) there was no evidence
that Mr. Kocon sufficiently identified any such potential
records to the VA. SApp’x 7–8. Accordingly, the Veterans
Court affirmed the Board’s decision. SApp’x 8.
Mr. Kocon timely appealed the Veterans Court’s deci-
sion to this court.
II
As we referenced above, Congress has placed strict lim-
its on this court’s ability to review Veterans Court deci-
sions. We can review only pure questions of law (for
example, what a statute means) or constitutional issues.
We cannot review challenges to how the Board determined
the facts of a given case or how the Veterans Court applied
the law to the case’s facts. See 38 U.S.C. § 7292(c), (d).
Mr. Kocon’s appeal raises only factual issues (which we
are unable to review) or issues that do not impact his claim.
For example, Mr. Kocon seems to argue that his schizo-
phrenia preexisted his service. This is a factual issue that
Case: 23-1560 Document: 18 Page: 4 Filed: 09/12/2023

-- 4 of 5 --

KOCON v. MCDONOUGH 5
we cannot review. Mr. Kocon also seems to argue that the
VA failed to satisfy its duty to assist him. This argument
also involves factual issues that we cannot review. See,
e.g., Lynch v. McDonough, No. 21-2224, 2022 WL 726955,
at *3 (Fed. Cir. Mar. 10, 2022) (nonprecedential).
Mr. Kocon finally seems to argue that he should not have
been drafted into service in the first place. Setting aside
whether this court could even review such an issue, this
issue does not impact the resolution of Mr. Kocon’s under-
lying claim for service-connected disability compensation.
Because Mr. Kocon’s appeal does not raise any perti-
nent issues within our limited jurisdiction, we must dis-
miss his appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
Case: 23-1560 Document: 18 Page: 5 Filed: 09/12/2023

-- 5 of 5 --