David K. Wonge v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID K. WONGE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2355
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-2813, Judge Scott Laurer.
______________________
Decided: November 13, 2024
______________________
DAVID KEVIN WONGE, SR., Whitsett, NC, pro se.
VIJAYA SURAMPUDI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also
represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN,
PATRICIA M. MCCARTHY.
______________________
Case: 23-2355 Document: 30 Page: 1 Filed: 11/13/2024

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WONGE v. MCDONOUGH 2
Before MOORE, Chief Judge, DYK and CUNNINGHAM,
Circuit Judges.
PER CURIAM.
David Wonge appeals a decision of the United States
Court of Appeals for Veterans Claims (Veterans Court)
affirming a decision of the Board of Veterans’ Appeals
(Board) denying his claim for an earlier effective date for
the award of benefits. Because Mr. Wonge raises only
factual issues we do not have jurisdiction to review, we
dismiss.
BACKGROUND
Mr. Wonge served on active duty in the United States
Army from February to March 1976 before being honorably
discharged due to a heart condition. S. Appx. 10, 12.1 After
discharge, Mr. Wonge alleges he repeatedly visited a
Regional Office (RO) of the Department of Veterans Affairs
(VA) in Manhattan, New York seeking benefits, but was
told he had not served long enough to qualify for benefits.
Id at 10–11. The Board found Mr. Wonge did not file a
written claim for benefits during these visits to the RO.
S. Appx. 3.
On May 7, 2009, Mr. Wonge filed a claim seeking
service connection and disability compensation for
rheumatic heart disease, deformity of aortic valve, and
aortic insufficiency. S. Appx. 8, 11. The RO granted service
connection with an effective date of May 7, 2009. S. Appx.
11. Mr. Wonge filed a Notice of Disagreement, arguing the
effective date should be his discharge date because he
visited a VA facility shortly after discharge to apply for
benefits. The RO denied an earlier effective date, and Mr.
Wonge appealed to the Board. The Board denied Mr.
1 “S. Appx.” refers to the Appendix attached to
Respondent-Appellee’s Informal Brief.
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WONGE v. MCDONOUGH 3
Wonge’s appeal, and he appealed to the Veterans Court.
The parties subsequently filed a joint motion for remand,
and the case was remanded back to the Board.
Respondent-Appellee’s Informal Br. 3.
On remand, the Board reconsidered Mr. Wonge’s
appeal, particularly evidence regarding his initial, in-
person attempts to apply for benefits before May 2009. S.
Appx. 10. The Board found Mr. Wonge credibly
demonstrated that he visited VA facilities to seek benefits
earlier than May 2009, but found he did not file a claim
until May 2009. S. Appx. 11. Accordingly, the Board found
there was not sufficient evidence to conclude Mr. Wonge
had submitted a claim for benefits earlier than May 2009,
and denied entitlement to an earlier effective date. Id. Mr.
Wonge appealed to the Veterans Court for the second time.
S. Appx. 1, 3.
The Veterans Court affirmed the Board’s decision,
holding the Board’s fact finding was not clearly erroneous
and the Board had provided adequate reasons or bases for
its decision. S. Appx. 3–4. Mr. Wonge argued, for the first
time, the Board failed to satisfy its duty to assist because
it should have remanded the claim to the RO to search for
additional documentation of his VA visits, but the Veterans
Court declined to review this argument. S. Appx. 4–5.
Mr. Wonge timely appeals the Veterans Court’s decision.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. We have
jurisdiction only to review “the validity of a decision of the
[Veterans] Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on by
the [Veterans] Court in making the decision.” 38 U.S.C.
§ 7292(a). Unless the appeal presents a constitutional
issue, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
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WONGE v. MCDONOUGH 4
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2).
On appeal, Mr. Wonge argues (1) he was denied access
to file a service connection claim when he was discharged;
(2) evidence of his in-person attempts to apply for benefits
shortly after discharge was withheld at hearings; (3) he
was unjustly treated because VA staff misinformed him he
was not entitled to benefits; (4) the Board failed its duty to
assist because it should have remanded to the RO with
instructions to search for documentation of his visits; and
(5) the VA violated constitutional laws, namely the
Americans with Disabilities Act. Appellant’s Informal Br.
1–3, 14–17.
Mr. Wonge’s arguments fall outside our jurisdiction
because they challenge factual determinations or
applications of law to facts. See 38 U.S.C. § 7292(d)(2).
Mr. Wonge’s first three arguments amount to a factual
disagreement with the outcome of his case. Mr. Wonge
appears to argue he is entitled to an earlier effective date
for his disability benefits because he attempted to apply for
benefits at a VA facility shortly after discharge but did not
file a written claim because the VA staff misinformed him
that he was not eligible for benefits due to his short service
time. We are not permitted to review the factual
determination that Mr. Wonge did not submit a written
claim for benefits before May 2009. We are similarly not
permitted to review the application of the law—that an
intent to file a claim for benefits must be in writing—to the
facts of Mr. Wonge’s case.2
2 Under Rodriguez v. West, 189 F.3d 1351, 1353–54
(Fed. Cir. 1999), an intent to file a claim for benefits must
be in writing. In 2014, the VA changed its regulations to
allow claimants to communicate an intent to file orally to
designated VA personnel. Standard Claims and Appeals
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WONGE v. MCDONOUGH 5
Mr. Wonge’s fourth argument regarding the Board’s
duty to assist does not identify an error involving the
interpretation of a statute or regulation by the Veterans
Court that we can review. Mr. Wonge also made this
argument before the Veterans Court, and the court
declined to consider it. S. Appx. 4–5. The Veterans Court
explained that, although it has discretion to consider
arguments raised for the first time, Mr. Wonge had
adequate time and opportunity to raise this argument
before the Board, where he was represented by counsel, but
failed to do so. Id. Mr. Wonge requested and received a
copy of his claims file in 2018 and testified at a Board
hearing in 2019, but did not argue his file was incomplete
or the Board failed its duty to assist until his second appeal
to the Veterans Court. Id.
Mr. Wonge’s fifth argument does not raise colorable
constitutional concerns that would confer jurisdiction
under 38 U.S.C. § 7292(d)(2). Labeling arguments as
constitutional does not automatically confer jurisdiction.
See Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir.
2007) (explaining that a veteran’s mere characterization of
an issue as constitutional in nature is insufficient to
establish appellate jurisdiction in this court). The Veterans
Court did not address or invoke any constitutional rights
in its decision. See S. Appx. 1–6. Therefore, we lack
jurisdiction to consider Mr. Wonge’s appeal.
Forms, 79 Fed. Reg. 57,660–61 (Sept. 25, 2014); see also 38
C.F.R. § 3.155(b)(1)(iii). However, this change in regulation
does not apply to Mr. Wonge because the change did not go
into effect until March 24, 2015, many years after the
events in Mr. Wonge’s case.
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WONGE v. MCDONOUGH 6
CONCLUSION
We have considered Mr. Wonge’s remaining arguments
and find them unpersuasive. For the reasons stated above,
we dismiss this appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
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