Douglas D. Dietrich v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOUGLAS D. DIETRICH,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1868
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-1155, Judge Grant Jaquith.
______________________
Decided: December 3, 2024
______________________
DOUGLAS D. DIETRICH, Pasco, WA, pro se.
BRITTNEY M. WELCH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also
represented by BRIAN M. BOYNTON, WILLIAM JAMES
GRIMALDI, PATRICIA M. MCCARTHY.
______________________
Before LOURIE, SCHALL, and STOLL, Circuit Judges.
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DIETRICH v. MCDONOUGH 2
PER CURIAM.
Douglas D. Dietrich, a veteran, appeals from a decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”). SAppx1–14.1 He seeks an earlier
effective date for service connection for obstructive sleep
apnea, diabetes mellitus, and hypertension, which are
secondary to his service-connected right knee disability.
For the following reasons, we dismiss-in-part and affirm-
in-part.
BACKGROUND
Mr. Dietrich served his country in the U.S. Marine
Corps from February 1979 to March 1990 and from June
1990 to September 1992. After he left service, the
Department of Veterans Affairs (“VA”) regional office
(“RO”) granted him service connection for bilateral knee
disability in September 1993 with an effective date of
September 29, 1992. Initially, the rating was
noncompensable, but in October 1995, the VA increased the
rating to 10% for each knee.
In December 2003, Mr. Dietrich requested an increase
in his right knee disability rating, alleging increased
instability. An October 2004 examination revealed that
Mr. Dietrich walked normally and had no difficulty rising
from a chair, but he also reported he had gained weight
since January 2003 and was taking 600 milligrams of
Motrin three times a day to manage his pain. In a January
2005 rating decision, the RO maintained the 10% rating for
each knee and noted that there was no objective medical
evidence of limited motion or instability of the right knee
warranting a higher rating. Mr. Dietrich filed a notice of
disagreement (“NOD”) contesting this rating decision.
1 “SAppx” refers to the supplemental appendix
attached to Appellee’s Informal Brief, ECF No. 5.
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DIETRICH v. MCDONOUGH 3
In May 2006, Mr. Dietrich was diagnosed with diabetes
mellitus. Around this time, he also reported a “recent
significant increase in knee pain with new symptom[s] of
popping and catching.” Dietrich v. McDonough, No. 23-
1155, 2024 WL 861148, at *2 (Vet. App. Feb. 29, 2024)
(alteration in original). He was diagnosed with severe
obstructive sleep apnea (“OSA”) in September 2006. In the
same month, an orthopedic doctor evaluated Mr. Dietrich
and found that his “activities of daily living, including
bending, lifting, [and] recreation are limited because of the
ongoing issues of the right knee,” and noted “increased pain
with motion and repetitive use.” Id. In December 2006,
Mr. Dietrich withdrew his claim for an increased right knee
rating, among other claims, but attempted to reinstate it in
February 2007. Id. The VA subsequently notified
Mr. Dietrich that, under the regulations in effect at the
time, the withdrawal of his claims was effective upon
receipt and the attempted reinstatement was invalid. Id.
at *8.
In April 2008, Mr. Dietrich filed the claims at issue in
this appeal. He sought service connection for his OSA,
diabetes mellitus, and hypertension, all as secondary to his
service-connected right knee disability. Mr. Dietrich
enclosed a statement from a physician linking his weight
gain to his right knee condition and opining that the
additional weight had contributed to the OSA, diabetes
mellitus, and hypertension. After the Board initially
denied the claims, it granted them in March 2016 because
all three conditions were “aggravated by [a] service-
connected disability.” Id. at *3 (alteration in original). In
a July 2016 rating decision, the RO assigned a 50% rating
for his OSA, a 20% rating for his diabetes mellitus, and a
noncompensable rating for his hypertension, all with an
April 1, 2008, effective date.
In October 2016, Mr. Dietrich filed a NOD contesting
the effective date for all three claims. He argued that,
because all were secondary to his knee claim, they should
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DIETRICH v. MCDONOUGH 4
have the same effective date as his knee claim: September
1992.
The RO denied an earlier effective date for the three
claims and Mr. Dietrich appealed to the Board. In a
decision dated October 15, 2021, the Board denied an
earlier effective date because April 1, 2008, was the date
the claims were first received by the VA and the claims
were received more than one year after Mr. Dietrich’s
separation from service.2 The Board also addressed
Mr. Dietrich’s argument about secondary service
connection and explained that the “requirement that a
secondary disability be considered a part of an original
disability does not establish that the original disability and
the secondary disability must receive identical effective
dates.” SAppx24. The Board determined that there was
no basis for an earlier effective date because the “record
does not show any communication that could be
interpreted as a claim for benefits for sleep apnea, diabetes
mellitus, or hypertension prior to the receipt of the April 1,
2008 claim.” SAppx23. Mr. Dietrich appealed the Board’s
decision to the Veterans Court.
2 Generally, the effective date for a service-connected
disability is the date of receipt of the claim by the VA or the
date entitlement arose, whichever is later. 38 U.S.C.
§ 5110(a); 38 C.F.R. § 3.400. If a claim is received within
one year after separation from service, the effective date
will be the day following separation from service or the date
entitlement arose. 38 U.S.C. § 5110(a)–(b)(1); 38 C.F.R.
§ 3.400(b)(2). Section 3.400 also governs secondary
service-connected disabilities and the normal rules for
effective dates are applicable. Ellington v. Peake, 541 F.3d
1364, 1369 (Fed. Cir. 2008) (“[T]he effective date for
secondary conditions is governed by section 3.400, which
establishes the effective date as the ‘date of receipt of claim,
or [the] date entitlement arose, whichever is later.’”).
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DIETRICH v. MCDONOUGH 5
Before the Veterans Court, Mr. Dietrich changed his
argument to assert that during the development of his
December 2003 claim for increased right knee disability,
the VA received copies of his treatment records that
reasonably raised claims for secondary service connection
for OSA, diabetes mellitus, and hypertension. The
Veterans Court interpreted this argument to assert that
the Board provided an inadequate statement of reasons or
bases by failing to address (1) “whether the claims for
secondary service connection for OSA, diabetes mellitus,
and hypertension were ‘reasonably raised’ by the veteran’s
VA treatment records during the adjudication of his right
knee disability rating”; and, if so, (2) whether, under
38 C.F.R. § 3.156(b), these records “were ‘new and material
evidence’ that would allow the secondary service
connection claims to take on the same” effective date of “the
increased rating claim for the primary disability.” Dietrich,
2024 WL 861148, at *4.
Although the Veterans Court determined Mr. Dietrich
did not clearly argue to the Board that his right knee
disability claim reasonably raised secondary service
connection for OSA, diabetes mellitus, and hypertension,
the Veterans Court reviewed the Board’s determination of
the proper effective date and whether the record
reasonably raised entitlement to his secondary service-
connected conditions prior to the April 2008 date of the
claims. The Veterans Court considered the evidence
recited above and noted Mr. Dietrich failed “to point to any
specific evidence that links his OSA, diabetes mellitus, or
hypertension to his service-connected right knee disability”
prior to his current effective date of April 1, 2008. Id. at *7.
It observed that such evidence was not in the record until
April 2008, when Mr. Dietrich submitted evidence that his
knee condition had contributed to weight gain and
subsequently his OSA, diabetes mellitus, and
hypertension. Id. The Veterans Court held that “[b]ecause
the treatment records that [Mr. Dietrich] relies on do not
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DIETRICH v. MCDONOUGH 6
suggest that these claims were reasonably raised by the
record, the Court cannot fault the Board for failing to
explicitly discuss this theory of entitlement.” Id.
Mr. Dietrich also argued that he had additional right
knee claims, other than his withdrawn right knee
instability claim, pending when he was diagnosed with
OSA, diabetes mellitus, and hypertension that reasonably
raised secondary service connection. Id. The Veterans
Court considered four filings that Mr. Dietrich pointed to
as evidence he had other right knee claims pending: (1) a
denied claim that Mr. Dietrich did not appeal that he may
have withdrawn in December 2006; (2) a letter that did not
clearly relate to a knee claim, other than the withdrawn
claim, or identify the related claim date such that the
Veterans Court could determine if the claim was actually
pending when the relevant conditions were reasonably
raised by the record; (3) a submission related to a surgery
that “took place after the secondary disabilities had
allegedly been raised by the record”; and (4) the letter
seeking to reinstate his withdrawn appeal. Id. at *8.
Mr. Dietrich bore the burden of demonstrating error in the
Board’s decision and the Veterans Court determined
Mr. Dietrich “has not convincingly shown that there were
other right knee claims pending . . . and the Court cannot
conclude that it was clear error for the Board not to discuss
this issue.” Id. (citing Hilkert v. West, 12 Vet. App. 145, 151
(Vet. App. 1999) (en banc), aff’d, 232 F.3d 908 (Fed. Cir.
2000) (per curiam)).
Even assuming that Mr. Dietrich had, in fact,
identified evidence linking his OSA, diabetes mellitus, or
hypertension to his service-connected disability prior to his
current effective date of April 1, 2008, the Veterans Court
explained that our court has already rejected his legal
theory––that a secondary service-connected claim is “new
and material evidence within the meaning of 38 C.F.R.
§ 3.156(b)” and takes on the same effective date as the
primary claim. Id. at *9 (brackets omitted) (citing
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DIETRICH v. MCDONOUGH 7
Manzanares v. Shulkin, 863 F.3d 1374, 1375 (Fed. Cir.
2017)). Because “his legal argument for an earlier effective
date has been rejected by controlling caselaw from the
Federal Circuit,” the Veterans Court held the Board did not
err when it denied an earlier effective date for
Mr. Dietrich’s claims. Id. at *10.
Mr. Dietrich timely appealed to this court.
DISCUSSION
On appeal Mr. Dietrich asserts seven main sources of
error for review by this court: (1) the Veterans Court erred
in its review of the application of 38 C.F.R. §§ 3.310 and
3.156(b) to his case; (2) the Veterans Court erred in its
determination that Manzanares is controlling law in this
matter; (3) the Veterans Court’s erred in its determination
that his secondary service connection claims were not
reasonably raised by the record prior to the receipt of his
claim for secondary service connection; (4) the Veterans
Court erred in determining that the Board provided
adequate reasons and bases for its decision; (5) he was not
given the benefit of the doubt; (6) the Veterans Court failed
to decide the issue of his rating for hypertension; and
(7) the Veterans Court erred by failing to consider the effect
of the lower hypertension threshold for individuals with
diabetes.
Many of Mr. Dietrich’s arguments, including his
argument the Veterans Court erred in its review of the
application of 38 C.F.R. §§ 3.310 and 3.156(b) to the facts of
his case, fall outside of our jurisdiction because they
challenge factual determinations or applications of law to
fact. 38 U.S.C. § 7292(d)(2); Butler v. Shinseki, 603 F.3d
922, 926 (Fed. Cir. 2010) (“We agree that the factual
findings of when a disability was claimed or service
connection established are not subject to our review.”).
This court has very limited jurisdiction when reviewing
decisions of the Veterans Court. We have jurisdiction only
“with respect to the validity of a decision of the [Veterans]
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DIETRICH v. MCDONOUGH 8
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).
“Except to the extent that an 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 applied to the facts of a particular case.”3 Id.
at § 7292(d)(2). Because we are not permitted to review
fact findings or application of a law or regulation to the
facts, we lack jurisdiction to review Mr. Dietrich’s
arguments numbered 1, 3, 4, and 5 above.
We do, however, have jurisdiction to review the
following issues.
Turning first to Mr. Dietrich’s argument that
Manzanares is not controlling law in this matter (his
second alleged source of error), we possess jurisdiction to
consider “[w]hether the Veterans Court applied a correct
legal standard,” and we review that question de novo.
Conyers v. McDonough, 91 F.4th 1167, 1170 (Fed. Cir.
2024). In Manzanares, we rejected the argument that a
3 Mr. Dietrich’s informal brief states: “Due process.
The [RO] failed to follow the correct regulations and laws
in assigning a correct effective date.” Appellant’s Br. 2.
There is no other mention of due process, and we thus do
not perceive this language to raise a genuine constitutional
issue. The informal brief simply does not specify how any
due process rights were violated. Id. Nor did the Veterans
Court address any constitutional issues. Labeling
arguments as constitutional does not automatically confer
jurisdiction on this court. Helfer v. West, 174 F.3d 1332,
1335 (Fed. Cir. 1999) (“To the extent that he has simply put
a ‘due process’ label on his contention that he should have
prevailed on his EAJA claim, his claim is constitutional in
name only.”).
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DIETRICH v. MCDONOUGH 9
veteran’s “secondary service connection . . . was ‘part’ of her
pending [primary claim] by virtue of § 3.310(a). . . [and]
that § 3.156(b) required that the VA treat the ‘new and
material evidence’—i.e., her [secondary service connection]
claim—‘as having been filed on’” the date of her primary
claim. 863 F.3d at 1376.
Here, Mr. Dietrich contends Manzanares is not
controlling because that case involved a “non-aggravated
secondary service-connected claim.” Appellant’s Br. at 6–
7. Both Ms. Manzanares’ and Mr. Dietrich’s claims involve
a “disability which is proximately due to or the result of a
service-connected disease or injury” rather than the
aggravation of non-service-connected disabilities.
38 C.F.R. § 3.310(a); SAppx23 (applying secondary-service-
connection pursuant to 38 C.F.R. § 3.310(a) to
Mr. Dietrich); but see id. § 3.310(b) (“Any increase in
severity of a nonservice-connected disease or injury that is
proximately due to or the result of a service-connected
disease or injury, and not due to the natural progress of the
nonservice-connected disease, will be service connected.”).
We are not convinced that the alleged differences between
types of secondary service connection claims form a basis
for distinguishing Manzanares. Our court has made clear
that “the effective date for secondary conditions is governed
by section 3.400” and that requiring primary and
secondary claims to have the same effective date “would be
illogical, given that secondary conditions may not arise
until years after the onset of the original condition.”
Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008).
We hold that the Veterans Court applied the correct legal
standard.
As to Mr. Dietrich’s contention that the Veterans Court
failed to address his rating for hypertension or the lower
hypertension threshold for individuals with diabetes (his
sixth and seventh alleged sources of error), we note that
Mr. Dietrich did not challenge his rating for hypertension.
Mr. Dietrich only challenged the effective date of his
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service connection before the Board. SAppx20–26.
Because we cannot consider arguments raised for the first
time on appeal, we decline to do so here. See, e.g., Johns
Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342, 1362
(Fed. Cir. 1998) (“As a general rule, an appellate court will
not hear on appeal issues that were not clearly raised in
the proceedings below.”)
CONCLUSION
We have considered Mr. Dietrich’s remaining
arguments and find them unpersuasive. Accordingly, for
the foregoing reasons, we dismiss-in-part and affirm-in-
part.
DISMISSED-IN-PART AND AFFIRMED-IN-PART
COSTS
No costs.
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