Diana Mydell v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DIANA MYDELL,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-2298
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-1485, Judge Joseph L. Toth.
______________________
Decided: May 31, 2024
______________________
K ENNETH M. CARPENTER , Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ANDREW J AMES HUNTER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. B OYNTON, WILLIAM J AMES
G RIMALDI, P ATRICIA M. MCC ARTHY ; BRIAN D. G RIFFIN,
SAMANTHA A NN SYVERSON, Office of General Counsel,
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MYDELL v. MCDONOUGH 2
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before REYNA, HUGHES , and CUNNINGHAM , Circuit Judges.
CUNNINGHAM , Circuit Judge.
Diana Mydell appeals from a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the decision of the Board of Veterans’ Ap-
peals (“Board”) finding Ms. Mydell was not entitled to an
effective date earlier than January 9, 2007, for benefits for
the grant of service connection for tinnitus. Mydell v.
McDonough, No. 21-1485, 2022 WL 2255648 (Vet. App.
June 23, 2022) (“Decision”). For the reasons discussed be-
low, we dismiss the appeal for lack of jurisdiction.
I. BACKGROUND
In 1993, Ms. Mydell applied for compensation benefits
for hearing loss. Decision at *1; J.A. 15. The Department
of Veterans Affairs (“VA”) denied service connection for
hearing loss in a December 1993 rating decision. Decision
at *1; J.A. 23, 26. In May 1994, the VA sent Ms. Mydell a
letter explaining that the one-year appeal period for her
claim had expired and that the 1993 rating decision was
final. Decision at *1; J.A. 27. In January 2007, Ms. Mydell
requested the VA reopen her claim for hearing loss and re-
quested service connection for tinnitus for the first time.
Decision at *1; see J.A. 140. Subsequently, in February
2008, the VA issued a rating decision denying Ms. Mydell’s
claim for service connection for tinnitus and denying reo-
pening of her claim for hearing loss. Decision at *1; J.A.
29.
Ms. Mydell appealed the rating decision. Decision at
*1; J.A. 37. In 2012, the Board found that the 1993 rating
decision had never actually become final and binding be-
cause of a mistake in the VA’s 1994 letter, which
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MYDELL v. MCDONOUGH 3
improperly informed her that the appeal period had run.
Decision at *1; J.A. 41. The Board remanded the case for
re-adjudication of the issues of entitlement to service con-
nection for hearing loss and tinnitus. Decision at *1; J.A.
43. In 2014, the Board granted service connection for left
ear hearing loss and tinnitus. Decision at *1; J.A. 61. The
Board remanded the claims for the VA to rate Ms. Mydell’s
conditions and to assign effective dates for her benefits.
Decision at *1. The VA assigned an evaluation of 10 per-
cent effective January 9, 2007, for tinnitus. J.A. 64; see De-
cision at *1. Ms. Mydell appealed this effective date
decision to the Board. Decision at *1; J.A. 122.
In February 2019, the Board denied an effective date
earlier than January 9, 2007, for the grant of service con-
nection for tinnitus. Decision at *1; J.A. 124. In June 2020,
the Secretary of Veterans Affairs entered into a joint mo-
tion for remand with Ms. Mydell, indicating that the
Board’s February 2019 decision did not contain an ade-
quate statement of reasons and bases. Decision at *2; see
J.A. 130–34. The Veterans Court granted the joint motion
for remand. J.A. 135.
On remand, the Board again found Ms. Mydell was not
entitled to an effective date before January 9, 2007, for tin-
nitus because she had not submitted a claim for service
connection for tinnitus prior to that date. Decision at *2;
see J.A. 137–41. In the November 2020 decision, the Board
stated that “per the [joint motion for remand] the Board
has considered the May 2012 Board remand” but the Board
concluded “the May 2012 Board remand does not make any
findings regarding a pending claim or claim to reopen for
tinnitus.” J.A. 140. Ms. Mydell appealed to the Veterans
Court, arguing that the Board on remand failed to comply
with the terms of the joint motion for remand. Decision at
*2; see J.A. 144–55.
The Veterans Court affirmed the Board’s November
2020 decision. Decision at *4. The Veterans Court found
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MYDELL v. MCDONOUGH 4
“the record supports the Board’s conclusion that Ms.
Mydell did not submit a writing indicating an intention to
seek disability benefits for tinnitus before January 2007.”
Id. at *3. The Veterans Court also “conclude[d] that the
Board substantially complied with the 2020 [joint motion
for remand] and, thereby, affirm[ed] [the Board’s] finding
that Ms. Mydell’s initial 1993 hearing loss claim did not
reasonably encompass a claim for tinnitus.” Id. Ms.
Mydell timely appeals.
II. D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We may review a Veterans Court decision
with respect to the validity of a decision on a rule of law or
the validity or interpretation of any statute or regulation
that was relied on by the Veterans Court in making the
decision. 38 U.S.C. § 7292(a). Except with respect to con-
stitutional issues, we “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or regu-
lation as applied to the facts of a particular case.” Id.
§ 7292(d)(2).
On appeal, Ms. Mydell argues the Veterans Court
erred by failing to enforce the joint motion for remand. Ap-
pellant’s Br. 13–14. However, “the essence of her argument
is simply a disagreement with the Veterans Court over
whether the [Board] adequately complied” with the terms
of the joint motion for remand. Dyment v. Principi, 287
F.3d 1377, 1381 (Fed. Cir. 2002). The Veterans Court de-
cision did not involve any questions regarding the validity
of a decision on a rule of law or the validity or interpreta-
tion of a statute or regulation. Rather, the substantive
question of whether the Board substantially complied with
the terms of the joint motion for remand is not a question
that can be reviewed without our examining the Veterans
Court’s application of law to fact—a task that we are pro-
hibited from undertaking. See id. (finding that this court
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MYDELL v. MCDONOUGH 5
lacked jurisdiction to review whether a specialist “ade-
quately complied with [a] remand order”).
Ms. Mydell argues Dyment is inapplicable because it
was decided “prior to Congress’s . . . enactment of the Vet-
erans Benefits Act (‘VBA’) of 2002,” which “expanded this
[c]ourt’s jurisdiction to include ‘rule of law’ jurisdiction.”
Appellant’s Reply Br. 2–3. But the 2002 amendments did
not remove the limits to our jurisdiction that preclude re-
view of the application of law to facts except when the ap-
peal presents a constitutional issue. See 38 U.S.C. § 7292
(as amended by Veterans Benefits Act of 2002, Pub.L. No.
107–330, § 402(a), 116 Stat. 2820, 2832). The present case
is one in which factual issues are so intertwined with the
disputed conclusion drawn by the Veterans Court that a
reviewing court would have to apply law to facts. Moreo-
ver, Ms. Mydell’s appeal does not raise any constitutional
issue. Accordingly, Ms. Mydell’s appeal of the Veterans
Court’s decision is beyond this court’s jurisdiction.
We have considered Ms. Mydell’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
dismiss Ms. Mydell’s appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
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