Milton H. Whitaker v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

2010-7016

MILTON H. WHITAKER,

Claimant-Appellant,
V.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in
06-3251, Judge William A. Moorman.

ON MOTION

Before MICHEL, Chief Judge, FRIEDMAN and LINN, 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 Milton H. Whitaker's appeal from a decision
of the United States Court of Appeals for Veterans Claims, which determined Whitaker
had not submitted "new and material" evidence necessary to reopen his previously
denied claim relating to post-traumatic stress disorder (PTSD).

Whitaker served on active duty in the United States Air Force from September
1971 to July 1974. His initial claim for Department of Veterans Affairs (DVA or
Department) disability compensation benefits relating to PTSD was denied when
Whitaker failed to appeal from a DVA regional office (RO) determination that there was
no record of a clear diagnosis of PTSD or evidence verifying that an in-service stressor
occurred that could establish a sufficient objective link to Whitaker's current PTSD

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condition. In June 2003, Whitaker sought to reopen that previously denied claim, but
his request was denied by the RO for failure to submit evidence that was both "new"
such that it was not in existence or not submitted to the Department during the
processing of the prior claim and "material" such that the additional evidence pertained
to the reason the claim was initially denied. See 38 U.S.C. § 5108. The Board of
Veterans' Appeals sustained the RO's determination, and Whitaker appealed from that
decision to the Court of Appeals for Veterans Claims.

Whitaker's attorney proffered only one argument before that court, that the
Department had failed to satisfy its notification requirements pursuant to 38 U.S.C. §
5103(a). Specifically, counsel argued that the Department letters relied on by the Board
to satisfy § 5103(a) failed to inform Whitaker of the basis for the prior denial of his claim
and failed to inform him that he needed to provide evidence of a current PTSD
diagnosis in order to reopen his claim. The court agreed with Whitaker that the Board's
determination was in error but ultimately concluded that the error was harmless
because the record demonstrated that Whitaker had actual knowledge that he needed
to submit a diagnosis of PTSD and had knowledge what information and evidence were
necessary to substantiate his underlying service-connection claim.

On appeal, Whitaker appears to contend that the Court of Appeals for Veterans
Claims incorrectly applied the law as it relates to the Department's § 5103(a) notice
requirements. Whitaker argues that the error was not harmless and he also appears to
argue that it was error to use only the diagnosis of one doctor to render a decision and
that the Department should have provided him a medical opinion.

The court's 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

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banc). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the
validity of any statute or regulation, or an interpretation thereof relied on by the court in
its decision. This court may also entertain challenges to the validity of a statute or
regulation, and to interpret constitutional and statutory provisions as needed for
resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal
presents a constitutional question, this court lacks jurisdiction over challenges to factual
determinations or laws or regulations as applied to the particular case. 38 U.S.C. §
7292(d)(2).

We agree with the Secretary that this appeal must be dismissed. To the extent
Whitaker may be arguing that the Court of Appeals for Veterans Claims did not apply
the correct standard in determining the notification obligations, we note that the Court of
Appeals for Veterans Claims ruled in Whitaker's favor and determined that the
Department did not comply with the notification obligations, but then held that in the
facts of this case the error was harmless. To the extent that Whitaker is arguing that the
notice error was not harmless because he did not have actual knowledge that he
needed to submit a diagnosis of PTSD to reopen his claim and receive benefits, the
Court of Appeals for Veterans Claims found to the contrary and we are without
jurisdiction to review such a factual determination. Newhouse v. Nicholson, 497 F.3d
1298, 1302 (Fed. Cir. 2007) (court is without jurisdiction to review whether there was
harmless error or actual prejudice). Finally, Whitaker's other arguments raised in his
informal brief were not raised below and are not properly before this court on appeal.

Accordingly,

IT IS ORDERED THAT:

(1)
The Secretary's motion is granted.

2010-7016

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(2)
Each side shall bear its own costs.

FOR THE COURT

MAR 23 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

CC:
Milton H. Whitaker
Delisa M Sanchez, Esq.

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

s19

MAR 2 3 2010

ISSUED AS A MANDATE:
MAR 23 2010

JAN HORBALY
CLERK

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