Gary L. Behunin v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARY L. BEHUNIN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1031
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-1151, Senior Judge William P.
Greene, Jr.
______________________
Decided: May 21, 2024
______________________
G ARY L. BEHUNIN, Sebastopol, CA, pro se.
RAFAEL SHAPIRO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, MARTIN F. HOCKEY , J R., P ATRICIA M.
MCCARTHY .
______________________
Case: 24-1031 Document: 23 Page: 1 Filed: 05/21/2024

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BEHUNIN v. MCDONOUGH 2
Before CHEN, MAYER , and CUNNINGHAM , Circuit Judges.
P ER CURIAM .
Gary L. Behunin appeals a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court), which affirmed a Board of Veterans’ Appeals
(Board) decision that denied an earlier effective date for
Mr. Behunin’s bilateral hearing loss and tinnitus. Mr. Be-
hunin contends that he is entitled to an earlier effective
date because he was misinformed about his eligibility for
benefits. We dismiss this appeal for lack of jurisdiction.
I.
Mr. Behunin served on active duty in the United States
Marine Corps from July 1959 to April 1963. Behunin v.
McDonough, No. 21-1151, 2023 WL 5197313, at *1 (Vet.
App. Aug. 14, 2023) (Decision). Mr. Behunin alleges that
he was “constantly subjected to extremely loud blasts and
other loud noises without the aid of hearing protection”
during his service in the Marine Corps. Informal Opening
Br. at 3.
In January 2013, Mr. Behunin submitted an intent to
file a claim for service-connected bilateral hearing loss and
tinnitus. Decision, 2023 WL 5197313, at *1. He then filed
his claim two months later. Id. In January 2014, the De-
partment of Veterans Affairs (VA) granted service connec-
tion for both disabilities. Id. The VA initially assigned an
effective date of March 2013 but later revised this date to
January 2013. Id.
Relevant to this appeal, Mr. Behunin filed a notice of
disagreement seeking an earlier effective date of April 13,
1963, one day after his discharge from the Marine Corps.1
1 The record is inconsistent about whether his dis-
charge date is April 12 or 13. The precise date is immate-
rial for this appeal.
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BEHUNIN v. MCDONOUGH 3
Id.; Appx. 9, 60.2 Mr. Behunin contended that he would
have sought disability benefits immediately after being dis-
charged but was dissuaded because “at the time of his dis-
charge from the Marine Corps, a processing administrative
officer advised him against seeking VA benefits.” Decision,
2023 WL 5197313, at *2. He argued that the VA should
consider this conversation with the administrative officer
as an informal claim for service connection. Id.
The Board rejected this argument. It could not identify
“any evidence of filing or intent to file a claim for benefits
prior to January 25, 2013.” Appx. 10. It also found Mr. Be-
hunin’s account uncorroborated at least because the name
of the processing administrative officer was “not in any of
the Veteran’s separation documents” from 1963. Id.
On appeal, the Veterans Court affirmed. It found that
“the Board clearly erred” because “the administrative of-
ficer’s name clearly appears on Mr. Behunin’s DD-214.”
Decision, 2023 WL 5197313, at *3. But according to the
Veterans Court, this error was harmless because the con-
versation with the administrative officer would not count
as an informal claim, which must be in writing. Id. at *4.
The Veterans Court further rejected Mr. Behunin’s conten-
tion that he would have filed a claim but for this conversa-
tion with the administrative officer, determining that
“equitable estoppel is not available to override the claim-
filing effective date limits of [38 U.S.C. § 5110]” and
“[e]quitable tolling is also unavailable.” Id. at *4 (citing
Taylor v. McDonough, 71 F.4th 909, 927–28 (Fed. Cir.
2023) (en banc); Arellano v. McDonough, 1 F.4th 1059, 1083
(Fed. Cir. 2021) (Chen, J., concurring)).
Mr. Behunin timely appealed.
2 “Appx.” refers to the appendix filed with the gov-
ernment’s response brief, ECF No. 14.
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BEHUNIN v. MCDONOUGH 4
II.
We lack jurisdiction to hear this appeal. We have ju-
risdiction to decide “questions of law, including interpret-
ing constitutional and statutory provisions.” 38 U.S.C.
§ 7292(d)(1). Unless an appeal presents a constitutional is-
sue, we “may not review (A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2).
Mr. Behunin does not present any legal challenges to
the Veterans Court’s decision. He argues that “special and
unusual circumstances” permit us to toll the effective-date
limits of 38 U.S.C. § 5110 because he “was misinformed
about VA benefits eligibility.” Informal Opening Br. 13.
He does not dispute that he first submitted a written intent
to file a claim for benefits in January 2013. See id. at 7, 13.
We lack jurisdiction to review the Veterans Court’s appli-
cation of 38 U.S.C. § 5110 to the facts of this case.
38 U.S.C. § 7292(d)(2).3
Mr. Behunin also appears to challenge certain factual
determinations as to whether he was properly informed of
his eligibility for VA benefits. See Informal Opening
Br. 10–11, 13–14. We also lack jurisdiction to review those
factual challenges. 38 U.S.C. § 7292(d)(2).
III.
We have considered Mr. Behunin’s remaining argu-
ments and find them unpersuasive. This appeal is there-
fore dismissed because we lack jurisdiction.
3 To the extent Mr. Behunin presents a legal chal-
lenge, the Veterans Court was correct in relying on prece-
dent to determine that neither equitable tolling nor
equitable estoppel apply to 38 U.S.C. § 5110. See Arellano
v. McDonough, 598 U.S. 1, 4, 8–10 (2023) (equitable toll-
ing); Taylor, 71 F.4th at 927–28 (equitable estoppel).
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BEHUNIN v. MCDONOUGH 5
DISMISSED
COSTS
No costs.
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