Kevin L. Kirkpatrick v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN L. KIRKPATRICK,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1781
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5562, Judge Coral Wong Pi-
etsch, Judge Joseph L. Toth, Judge William S. Greenberg.
______________________
Decided: November 17, 2021
______________________
K EVIN L. K IRKPATRICK, Forest Lake, MN, pro se.
D AVID MICHAEL K ERR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA B URKE, MARTIN F. HOCKEY ,
J R.; MEGHAN ALPHONSO, BRIAN D. G RIFFIN, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
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KIRKPATRICK v. MCDONOUGH 2
______________________
Before M OORE, Chief Judge, N EWMAN and O’MALLEY ,
Circuit Judges.
P ER CURIAM .
Kevin L. Kirkpatrick appeals a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming a decision of the Board of Veterans’ Ap-
peals (“Board”) that denied Kirkpatrick an earlier effective
date for the award of service connection for bilateral hear-
ing loss and an acquired psychiatric disability. Kirkpatrick
v. Wilkie, No. 19-5562, 2020 WL 7021464, at *1, *4
(Vet. App. Nov. 30, 2020). Because Kirkpatrick’s constitu-
tional challenge lacks merit and we lack jurisdiction over
his remaining arguments, we affirm in part and dismiss in
part.
I. BACKGROUND
Kirkpatrick served honorably in the Army from Janu-
ary 1979 to January 1982 and from October 1982 to Octo-
ber 1985. During his service, Kirkpatrick was treated for
an acquired psychiatric disability. Shortly after his second
discharge, in February 1986, Kirkpatrick filed a claim for
service connection for, among other things, a nervous con-
dition and hearing loss. In March 1986, the Department of
Veterans Affairs (“VA”) requested and received Kirkpat-
rick’s service department records. The VA informed Kirk-
patrick that it was “making arrangements” for
examinations and would inform him of the time and loca-
tion at a later date. Kirkpatrick, 2020 WL 7021464, at *1.
On March 25, 1986, VA medical personnel received an
internal VA document requesting examinations and opin-
ions. They indicated on the document the scheduled date
of Kirkpatrick’s psychiatric and audiology examinations,
April 17. They also completed a VA Form 70-7216a to re-
quest the transfer of Kirkpatrick’s records for review by the
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KIRKPATRICK v. MCDONOUGH 3
medical examiners. The form’s typed request date of
“3-31-86” was crossed out, and “4-3-86” was written in its
place. The form’s typed scheduled examination date of
“4-10-86” was similarly crossed out, and “4-17-86” was
written in its place. The record is silent as to whether the
VA informed Kirkpatrick of the examinations, but he did
not appear for them. A VA routing slip dated April 17 re-
turned the claims file to adjudicators. The slip misspelled
Kirkpatrick’s first name and omitted some other dates.
The VA denied Kirkpatrick’s claims because Kirkpat-
rick missed his examinations. The VA explained that it
would reconsider its decision if Kirkpatrick were willing to
undergo an examination. The VA mailed the decision and
a notice of Kirkpatrick’s procedural and appellate rights to
the address noted on Kirkpatrick’s application for benefits.
Kirkpatrick did not appeal the denial or notify the VA that
he would appear for an examination.
On August 8, 2011, Kirkpatrick filed claims for service
connection for hearing loss and psychiatric disabilities.
The VA reopened his original claims, obtained examina-
tions and opinions on his medical conditions, granted Kirk-
patrick service connection for both disabilities, and
assigned effective dates of August 8, 2011. Kirkpatrick ap-
pealed to the Board. He argued that he was entitled to an
earlier effective date for both disabilities because, inter
alia, (1) the VA did not notify him of the scheduled exami-
nation in 1986, (2) the VA did not fully associate his service
department records with his claims file at the time of the
1986 denial, and (3) the VA allegedly altered its forms in
1986. The Board rejected these arguments. It found that
the VA’s denial of Kirkpatrick’s 1986 claims was final and
that Kirkpatrick had not submitted anything that reason-
ably could be interpreted as a formal or informal claim un-
til August 2011.
Kirkpatrick appealed to the Veterans Court and raised
the same arguments. The Veterans Court affirmed. First,
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KIRKPATRICK v. MCDONOUGH 4
the Veterans Court held that Kirkpatrick’s original claims
could not support an earlier effective date because the de-
nial in 1986 was final. Even if Kirkpatrick had not received
proper notice of the date of his examinations, the Veterans
Court explained that the VA had notified Kirkpatrick, “by
way of the properly mailed rating decision,” that he had
missed the examinations and that he could attempt to rec-
tify the situation by appealing the denial of his claims.
Kirkpatrick, 2020 WL 7021464, at *2. The Veterans Court
determined that Kirkpatrick did not appeal or respond and
that the denial therefore became final.
Second, the Veterans Court held that Kirkpatrick was
not entitled to an earlier effective date under 38 C.F.R.
§ 3.156(c), which governs reconsideration of claims. The
court found that the VA received and associated all of Kirk-
patrick’s service records in deciding the 1986 claims. The
court explained that medical opinions in 2012 and 2017
that may have relied, in part, on the previously associated
service records did not trigger reconsideration under
§ 3.156(c).
Third, the Veterans Court found no evidence in the rec-
ord to support Kirkpatrick’s allegation that the VA altered
documents. The court found “nothing inherently nefari-
ous” about the manual corrections to dates on the VA Form
70-7216a or the misspellings or omissions on the April 17
VA routing slip. The court distinguished the minor and
“unfortunate but innocent mistakes” here from the mate-
rial alterations to evidence in case law that constituted vi-
olations of VA claimants’ due process rights. Kirkpatrick,
2020 WL 7021464, at *3 (discussing Cushman v. Shinseki,
576 F.3d 1290 (Fed. Cir. 2009)).
Kirkpatrick timely appealed to this court.
II. D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
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KIRKPATRICK v. MCDONOUGH 5
(Fed. Cir. 2010). We “shall decide all relevant questions of
law, including interpreting constitutional and statutory
provisions.” 38 U.S.C. § 7292(d)(1). But we may not review
a challenge to a factual determination or a challenge to a
law or regulation as applied to the facts of a particular case,
except to the extent that the appeal presents a constitu-
tional issue. Id. § 7292(d)(2).
On appeal, Kirkpatrick argues that the Veterans Court
misinterpreted 38 C.F.R. § 3.156(c), improperly applied the
presumption of regularity, and violated his right to due
process. See Appellant’s Br. 1–2. We address each argu-
ment in turn.
First, Kirkpatrick contends that the Veterans Court
(and the Board) misinterpreted § 3.156(c) because it failed
to address evidence that he submitted in 2016. Id. at 1.
Kirkpatrick adds that the VA failed to request his official
military personnel file and his service treatment records,
which contain his prior diagnoses. Id. Although Kirkpat-
rick frames this argument as a legal question regarding the
proper interpretation of § 3.156(c), the determinations he
asks us to review are factual or applications of law to fact.
Specifically, Kirkpatrick’s argument requires (1) reevalu-
ating the evidence in the record to determine whether he is
entitled to earlier effective dates and (2) reviewing and
overturning the Veterans Court’s determination that “all
service records were received on March 18, 1986.” Kirkpat-
rick, 2020 WL 7021464, at *3. We lack jurisdiction to re-
view these determinations. 38 U.S.C. § 7292(d)(2); see
Malone v. Peake, 300 F. App’x 901, 903 (Fed. Cir. 2008);
Jones v. Wilkie, 918 F.3d 922, 925 (Fed. Cir. 2019) (“The
completeness of the record presents a question of fact out-
side of this court’s jurisdiction[.]”).
Kirkpatrick relies heavily on Moore v. Shinseki,
555 F.3d 1369 (Fed. Cir. 2009), for the proposition that the
VA must consider all submitted evidence. See Appellant’s
Br. 6–10. But Moore does not provide grounds for
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KIRKPATRICK v. MCDONOUGH 6
jurisdiction over Kirkpatrick’s first argument. There, we
had jurisdiction over an appellant’s challenge to the Veter-
ans Court’s interpretation of a statute as not requiring the
VA to obtain service medical records that predate the effec-
tive date of a claim for benefits. See Moore, 555 F.3d at
1371–72. We agreed that the Veterans Court misinter-
preted the statute. Id. at 1372–74. We then rejected the
government’s argument that the error was harmless be-
cause the government could not determine the relevance of
unobtained service records without first examining them.
See id. at 1374–75. By contrast, as noted, Kirkpatrick’s
first argument amounts only to challenges to the court’s
factual findings and its application of law to fact.
Second, Kirkpatrick challenges the Veterans Court’s
unstated invocation of the presumption of regularity to find
that the VA mailed certain notices to him. Appellant’s Br.
1, 4. Kirkpatrick asserts that “there is substantive evi-
dence in the record to invalidate the VA’s presumption of
regularity[ ] concerning mailing and notices required by
law.” Id. at 4. Kirkpatrick refers to the absence of certain
notices and letters from his claims file, which “may show
that the mailing procedure was not performed regularly.”
Id.
This argument is not convincing. There is a presump-
tion of regularity that, in the absence of clear evidence to
the contrary, government officials have properly dis-
charged their official duties. See United States v. Chem.
Found., 272 U.S. 1, 14–15 (1926). These duties include the
VA’s obligation to provide a claimant with notice of a deci-
sion affecting the provision of benefits. Toomer v. McDon-
ald, 783 F.3d 1229, 1234–35 (Fed. Cir. 2015). The Veterans
Court has held that a statement of nonreceipt alone is in-
sufficient to rebut the presumption. E.g., Romero v. Tran,
33 Vet. App. 252, 264–65 (2021). Such a statement coupled
with other evidence, such as “clear evidence to the effect
that [ ]VA’s ‘regular’ mailing practices are not regular or
that they were not followed” may be enough. E.g., id.
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KIRKPATRICK v. MCDONOUGH 7
Here, the Veterans Court neither implicitly nor explic-
itly invoked the presumption of regularity.1 The Veterans
Court “accept[ed] for the sake of argument [Kirkpatrick’s]
assertion that he did not receive proper notice” of the
scheduling of his examinations in 1986. Kirkpatrick,
2020 WL 7021464, at *2. And the court concluded that the
VA “properly mailed” its decision denying Kirkpatrick’s
1986 claims because the court found that “[t]he decision
was mailed to the same address that was noted on Mr.
Kirkpatrick’s application.” Kirkpatrick, 2020 WL 7021464,
at *1–2. Because the Veterans Court did not address the
question of whether Kirkpatrick overcame the presump-
tion of regularity, it did not make a decision that would
grant us jurisdiction over that question under 38 U.S.C.
§ 7292(a).2
Third, Kirkpatrick argues that the Veterans Court de-
nied him his right to due process. See Appellant’s Br. 3.
He principally contends that the VA’s alteration of forms
in 1986 is misconduct analogous to the material alterations
of evidence in Cushman v. Shinseki, 576 F.3d 1290 (Fed.
Cir. 2009), that constituted a due process violation. See id.
at 14–15; Appellant’s Reply Br. 7–9.
1 For the same reason, we find Romero v. Tran,
33 Vet. App. 252 (2021), the case on which Kirkpatrick re-
lies, inapplicable. See Appellant’s Br. 11–13 (quoting
Romero v. Wilkie, 33 Vet. App. 84 (2020), superseded by
33 Vet. App. 252 (2021)).
2 Even if the Veterans Court invoked the presump-
tion of regularity, Kirkpatrick’s second argument raises a
challenge to the court’s application of law to fact—i.e.,
whether the evidence that Kirkpatrick presented rebutted
the presumption. We lack jurisdiction to review the Veter-
ans Court’s factual findings and its weighing of the prof-
fered evidence. See Toomer v. McDonald, 783 F.3d 1229,
1236 (Fed. Cir. 2015).
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KIRKPATRICK v. MCDONOUGH 8
We have jurisdiction over this constitutional challenge
under § 7292(d). See Hudick v. Wilkie, 755 F. App’x 998,
1004 (Fed. Cir. 2018). Although the government argues
that the Veterans Court did not decide any constitutional
issues for us to review, we disagree. The Veterans Court
plainly considered Kirkpatrick’s argument that alterations
to internal agency documents in 1986 violated his right to
due process.
Turning to the merits of Kirkpatrick’s principal alleged
due process violation, we find that the alterations to VA
Form 70-7216a are not material for due process purposes.
We have held that the presentation of improperly altered
material evidence may constitute a due process violation.
Cushman, 576 F.3d at 1300. “Alterations of evidence are
material for due process purposes if there is a ‘reasonable
probability of a different result’ absent those alterations.”
Id. Here, there is no dispute that the VA forms contained
alterations to the examination request date and the sched-
uled examination date.3 Appellant’s Reply Br. 7. But, even
considering the original dates, Kirkpatrick still missed his
examinations and did not act on the VA’s offer to reconsider
the denial of his 1986 claims if he agreed to undergo an
examination. Therefore, we see no reasonable probability
3 Kirkpatrick alleges that these changes were fraud-
ulent because, according to contemporary news reporting
and testimony before a Congressional committee, an adju-
dicating officer was generally engaging in misconduct. See
Appellant’s Br. 14–15; Appellant’s Reply Br. 8–9. The
Board found that these allegations of misconduct by an ad-
judicating officer who “signed one of the Veteran’s exami-
nation requests” were not specific and did not relate
directly to Kirkpatrick’s claims. Respondent’s Supple-
mental Appendix (“S.A.”) 20, 23. Like the Veterans Court,
we see no clear error in the Board’s finding.
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KIRKPATRICK v. MCDONOUGH 9
that the VA would have reached a different result on Kirk-
patrick’s 1986 claims absent the alterations.
We agree with the Veterans Court that the facts of this
case are distinguishable from those in Cushman. In Cush-
man, the veteran sought total disability based on individ-
ual unemployability (“TDIU”) benefits. 576 F.3d at 1293.
Cushman’s medical records at the time stated, “Is worse +
must stop present type of work.” Id. at 1292–93. The VA
denied Cushman’s claim based on an altered version of
Cushman’s medical records, which read, “Is worse + must
stop present type of work, or at least [ ] bend [ ] stoop lift.”
Id. at 1293 (brackets in original indicating illegible or stray
marks). We found a reasonable probability that Cush-
man’s TDIU claim would have had a different result. Id.
at 1300. Under the circumstances, a reasonable factfinder
would have at least considered the substance of the altered
medical record, which indicated that Cushman was more
employable than the unaltered document did. See id. at
1300. As noted, here, there is no reasonable probability
that Kirkpatrick’s 1986 claims would have had a different
result because, even considering the dates of the unaltered
VA forms, Kirkpatrick still missed his examinations and
did not notify the VA that he would appear for an exami-
nation.
III. CONCLUSION
We have considered Kirkpatrick’s remaining argu-
ments, including his other allegations of due process viola-
tions, and find them to be without merit. For the foregoing
reasons, we affirm in part and dismiss in part for lack of
jurisdiction.
AFFIRMED IN PART, DISMISSED IN PART
COSTS
No costs.
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