Ronald E. Grubbs v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

RONALD E. GRUBBS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7099

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-3465, Judge Alan G.
Lance, Sr.

## ON MOTION

Before NEWMAN, SCHALL, and DYK, Circuit Judges.
PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and to dismiss Ronald
E. Grubbs' appeal from the United States Court of Ap-

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peals for Veterans Claims' judgment for lack of jurisdic-
tion. Grubbs opposes.

As of April 19, 2002, Grubbs is entitled to receive dis-
ability compensation benefits for his service-connected
chronic infectious hepatitis at a 100% disability rating
award. It was that date, according to the agency, it first
became factually ascertainable Grubbs' symptoms met the
criteria for such rating. Before that, the evidence, accord-
ing to the agency, warranted only a 10% disability rating
effective December 20, 2000, and prior to that, he was not
entitled to compensation in accordance with the rating
criteria.

The Board of Veterans' Appeals confirmed these rat-
ing awards, and Grubbs sought review in the Court of
Appeals for Veterans Claims. The court affirmed, holding
the Board did not err in finding no medical evidence
supports an increased rating or earlier effective date for a
100% disability award. Grubbs appeals that determina-
tion to this court.

Under 38 U.S.C. § 7292, this court has limited juris-
diction over appeals from decisions of the Court of Ap-
peals for Veterans Claims. See Forshey v. Principi, 284
F.3d 1335, 1338 (Fed. Cir. 2002) (en banc). This court
"may not review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case." 38 U.S.C. § 7292(d)(2).

Grubbs argues the court only considered an informal
brief rather than the brief and evidence he submitted and
has attached for our review. The court notes that the
brief he has submitted here and the one on the Court of
Appeals for Veterans Claims' docket appear to be identi-
cal. To the extent Grubbs contends that the court im-
properly weighed the evidence, this court is without
jurisdiction to address such a contention. Similarly, this
court is without jurisdiction to address Grubbs' other

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contentions regarding the merits of his claims because he
raises challenges to factual determinations or application
of law to the facts of his case.

The only other argument Grubbs appears to make in
his brief or response is that the denial of his claims for an
earlier effective date or increased rating constitute a
constitutional issue. While this court has jurisdiction over
constitutional issues, the appellant's "characterization of
that question as constitutional in nature does not confer
upon us jurisdiction that we otherwise lack.". Helfer v.
West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). Grubbs's
argument on this point also appears to be aimed at the
merits of his claim and does not raise a separate constitu-
tional issue. Therefore, this court has no jurisdiction to
consider the issue.

Accordingly,

IT IS ORDERED THAT:

\-

(1) The Secretary's motions are granted. The appeal
is dismissed.

(2) Each side shall bear its own costs.

FOR THE COURT

JUL 12 2011

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Ronald E. Grubbs
Michael D. Austin, Esq.

s20

Issued As A Mandate:

JUL 12 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JUL 12 2011

JAN HORBALY
CLERK