John D. Miller v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7027
JOHN D. MILLER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
John D. Miller, of Cleveland, Ohio, pro se.
Amanda L. Tantum, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Harold D. Lester, Jr., Assistant Director. Of counsel was Sean M. Dunn,
Trial Attorney.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Bruce E. Kasold

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7027
JOHN D. MILLER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0933,
Judge Bruce E. Kasold.
__________________________
DECIDED: October 7, 2009
__________________________
Before MAYER, LOURIE, and PROST, Circuit Judges.
PER CURIAM.
John D. Miller appeals the judgment of the Court of Appeals for Veterans Claims
(“Veterans Court”), which affirmed the Board of Veterans’ Appeals March 15, 2006,
decision denying his requests, based on clear and unmistakable error (“CUE”), to revise
or reverse several prior board decisions with respect to the effective date and disability
rating for his service-connected pseudofolliculitis. Miller v. Peake, No. 06-0933 (Vet.
App. July 9, 2008). The Veterans Court also modified the board’s decision so as to
dismiss his non-specific allegations of CUE without prejudice. Id.

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2009-7027 2
Miller disagrees with how the Veterans Court and the board evaluated the record
evidence to conclude that he was not entitled to an effective date earlier than June 11,
1986, for an assigned disability rating of thirty-percent for his skin condition. * He also
raises new allegations not properly brought before or addressed by the Veterans Court,
claiming that the Department of Veterans Affairs and the board failed to comply with the
duty to assist and to sympathetically review his claims. We have considered each of
Miller’s arguments before us on appeal, and conclude that they (1) challenge factual
conclusions, and (2) fail to raise genuine constitutional issues. Because we lack
authority to review either “a challenge to a factual determination” or “a challenge to a
law or regulation as applied to the facts of a particular case” absent a constitutional
issue, 38 U.S.C. § 7292(d)(2), we dismiss his appeal.
* The Veterans Court made a typographical error identifying the effective date for Miller’s
service-connected pseudofolliculitis as June 11, 1996, instead of June 11, 1986. This
error does not modify the 1990 board decision that assigned the June 11, 1986,
effective date.

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