James E. Miller v. Douglas A. Collins, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES E. MILLER,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2025-1500
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-7624, Judge William S. Green-
berg.
______________________
Decided: September 5, 2025
______________________
JAMES E. MILLER, North Chesterfield, VA, pro se.
AN HOANG, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY,
YAAKOV ROTH; EVAN SCOTT GRANT, BRIAN D. GRIFFIN, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
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MILLER v. COLLINS 2
______________________
Before DYK, LINN, and STARK, Circuit Judges.
PER CURIAM.
James E. Miller appeals pro se from a decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”). The Veterans Court affirmed a decision by
the Board of Veterans’ Appeals (“Board”) denying Mr. Mil-
ler an effective date prior to March 9, 1994, for his service-
connected disability. We dismiss.
BACKGROUND
Mr. Miller served in the United States Army from 1971
to 1973. S. App’x 5; Appellant’s Informal Br. 15.1 In Octo-
ber 1975, Mr. Miller filed a claim with the Department of
Veterans Affairs (“VA”) seeking a finding that his heart
condition was a disability connected to his period of service.
In May 1976, the regional office of the VA denied Mr. Mil-
ler’s claim, and he did not appeal that decision to the
Board. The VA later reopened Mr. Miller’s claim upon re-
ceipt of additional medical documents, but the regional of-
fice confirmed the denial in February 1978. Mr. Miller
appealed that decision to the Board, which affirmed the de-
nial in a decision dated November 1, 1978.
In 1980, Mr. Miller sought to reopen his claim for a ser-
vice-connected heart disorder. In November 1980, the re-
gional office informed Mr. Miller by letter that it could take
no further action on the matter unless he presented new
1 Citations to “S. App’x” are to the supplemental ap-
pendix filed by the government. Citations to specific pages
in Mr. Miller’s informal brief use the page numbers as-
signed by the court’s online docketing system.
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MILLER v. COLLINS 3
and material evidence in support of his claim. Mr. Miller
did not respond to that letter.
On March 9, 1994, Mr. Miller again sought to reopen
his claim. The regional office again denied his request.
Mr. Miller responded to that denial by letter in Decem-
ber 1994, but the VA appears to have lost that document,
and it is not included in the record.
In September 1998, Mr. Miller filed a third request to
reopen, which was again denied by the regional office.
Mr. Miller appealed that denial to the Board. The Board
ultimately awarded service connection for his heart condi-
tion and granted Mr. Miller an effective date of March 9,
1994. The Board determined that it could not grant an ear-
lier effective date because Mr. Miller did not appeal the in-
itial denial of his claim in 1976, the Board’s decision in
1978 was final, and Mr. Miller did not respond to the re-
gional office’s November 1980 letter indicating that he
would need to submit new and material evidence to reopen
his claim.
Mr. Miller appealed the Board’s decision to the Veter-
ans Court, asserting that his effective date should be ear-
lier than March 9, 1994. The Veterans Court affirmed the
Board, concluding that the Board committed no error in its
assignment of an effective date. S. App’x 6–7.
Mr. Miller appeals to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is defined by statute. Scott v. Wilkie, 920 F.3d 1375,
1377 (Fed. Cir. 2019). We may review “any challenge to
the validity of any statute or regulation or any interpreta-
tion thereof” by the Veterans Court. 38 U.S.C. § 7292(c).
We may also “interpret constitutional and statutory provi-
sions” when such issues are “presented and necessary to a
decision.” Id. Unless a constitutional challenge is
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MILLER v. COLLINS 4
presented, we “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.” Id. § 7292(d)(2).
On appeal, Mr. Miller appears not to argue for a 1976
effective date, but he argues that he should have received
an effective date of 1980 or 1978. We have long recognized
that a veteran may challenge the award of an effective date
either by establishing that the action on an earlier applica-
tion was not final, or by establishing clear and unmistaka-
ble error in a final award. Willsey v. Peake, 535 F.3d 1368,
1371 (Fed. Cir. 2008). Mr. Miller has not alleged clear and
unmistakable error. Rather, he alleges that the awards
were not final. He first contends that he never received the
regional office’s November 1980 denial of his request to re-
open, and he could not file a notice of disagreement to a
decision that he never received. It is not entirely clear
whether Mr. Miller raised this argument before the Veter-
ans Court, and the Veterans Court’s decision did not explic-
itly address it. Nonethless, the government argued before
the Veterans Court that the presumption of regularity sup-
ports the view that he received the documents. See Butler
v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). We read
the decision of the Veterans Court as implicitly affirming
the Board on the ground that Mr. Miller had not estab-
lished that he did not receive the documents. This is a res-
olution of a question of fact that is beyond our jurisdiction
to review. Butler v. Shinseki, 603 F.3d 922, 926 (Fed. Cir.
2010).
Mr. Miller next contends that he did not receive the
Board’s November 1978 decision, but we again read the
Veterans Court’s decision as rejecting this contention as a
factual matter. Mr. Miller also appears to argue that the
Veterans Court erred in determining that his original
claim “was closed as of the date of the [Board’s] Novem-
ber 1978 decision,” because he was deprived of a “legal
right to appeal [that] decision,” rendering it
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MILLER v. COLLINS 5
“unconstitutional.” Appellant’s Informal Br. 2. The gov-
ernment suggests that Mr. Miller forfeited this argument
by not raising it before the Veterans Court. Appellee’s In-
formal Br. 11–12. Even assuming the argument has been
preserved, Mr. Miller has presented no colorable argument
that the unavailability of judicial review under the circum-
stances precluded the finality of the Board’s Novem-
ber 1978 decision or constituted a constitutional violation.
Under our decision in Helfer v. West, 174 F.3d 1332, 1335
(Fed. Cir. 1999), and with no other issue within our juris-
diction having been presented, the failure to raise a color-
able constitutional claim deprives us of jurisdiction over
the issue.
CONCLUSION
We have considered the remainder of Mr. Miller’s ar-
guments and do not find them persuasive. For the forego-
ing reasons, we dismiss.
DISMISSED
COSTS
No costs.
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