Vanderbilt Evans, Sr. v. Douglas A. Collins, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VANDERBILT EVANS, SR.,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1200
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4662, Judge Amanda L. Mere-
dith.
______________________
Decided: October 21, 2025
______________________
KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by TARA K. HOGAN, PATRICIA M. MCCARTHY, YAAKOV
ROTH; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of
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EVANS v. COLLINS 2
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before TARANTO, STOLL, and CUNNINGHAM, Circuit
Judges.
PER CURIAM.
Vanderbilt Evans, Sr., served in the United States Ma-
rine Corps from 1965 to 1967, with duty in Vietnam. Dur-
ing his service, he was shot in his left shoulder and left
brachial plexus nerves. In 1968, he obtained veterans’ dis-
ability benefits from the Department of Veterans Affairs
(VA) based on the gunshot wound, with a 60% disability
rating reflecting severe incomplete paralysis in his non-
dominant arm under diagnostic code 8513. In 1996, as is
relevant here, Mr. Evans asked VA to reexamine his left
shoulder because he felt increased pain during the preced-
ing months.
In 2010, VA added ischemic heart disease (IHD) to its
list of conditions presumptively associated with exposure
to certain herbicides. See 38 C.F.R. § 3.309(e); Diseases As-
sociated with Exposure to Certain Herbicide Agents (Hairy
Cell Leukemia and Other Chronic B-Cell Leukemias, Par-
kinson’s Disease and Ischemic Heart Disease), 75 Fed. Reg.
53,202, 53,216 (Dep’t Vet. Affairs Aug. 31, 2010) (codified
at 38 C.F.R. pt. 3). Shortly thereafter, Mr. Evans sought,
and in 2012 he was awarded, disability benefits for service-
connected IHD, receiving a late-2010 effective date of the
award—which, some years later, was moved back to early
2010. Mr. Evans, on essentially two bases, argued for an
earlier effective date for the IHD-based award—back to
2000, when he was diagnosed by a non-VA physician with
a form of IHD, or to 2001, when VA medical records note
that diagnosis. VA’s Board of Veterans’ Appeals (Board)
rejected the request for a pre-2010 effective date in 2020,
and the United States Court of Appeals for Veterans
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EVANS v. COLLINS 3
Claims (Veterans Court) affirmed that denial in 2023, Ev-
ans v. McDonough, No. 20-4662, 2023 WL 3298922 (Vet.
App. May 8, 2023) (Decision).
Mr. Evans appeals the Veterans Court’s decision, in-
voking our jurisdiction under 38 U.S.C. § 7292. Because
this case involves no constitutional issue, our jurisdiction
is limited to issues of asserted legal error by the Veterans
Court, and a challenge of error in a factual finding, or of
mere misapplication of law to fact, is outside our authority.
See, e.g., Perciavalle v. McDonough, 101 F.4th 829, 835
(Fed. Cir. 2024). Here, Mr. Evans agrees that, as the case
is framed in this appeal, each of his two asserted bases for
the earlier effective date for service-connected IHD has, as
a necessary premise, that the record of his 1996 VA medical
examination qualifies as his filing of an “informal” claim
for an increased rating under a then-governing (but now
repealed) regulation, 38 C.F.R. § 3.157(b)(1) (2009). See
Evans Opening Br. at 18; Evans Reply Br. at 4; J.A. 50–51.
Mr. Evans contends that there is a legal issue related to his
informal-claim argument—i.e., that because he purport-
edly went from one disability to two disabilities in 1996, his
condition worsened under § 3.157(b)(1) as a matter of law.
We conclude, however, that Mr. Evans cannot establish er-
ror in the denial of the earlier effective date without having
us disturb factual or law-applied-to-facts determinations
that we cannot review, and we therefore must dismiss his
appeal.
Under the pertinent part of the then-governing regula-
tion, “an informal claim for increased benefits” could in-
clude the “receipt of” a “[r]eport of [an] examination” for “a
disability for which service-connection has previously been
established.” 38 C.F.R. § 3.157(b)(1) (2009). We have held
that a qualifying report must be “tied to the earliest ascer-
tainable date ‘that an increase in disability had occurred.’”
Massie v. Shinseki, 724 F.3d 1325, 1328–29 (Fed. Cir.
2013) (quoting 38 U.S.C. § 5110(b)(3)). And we have con-
cluded that whether an informal claim shows that the
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EVANS v. COLLINS 4
“veteran’s disability has worsened” is a “factual[ ]” matter,
consistent with 38 C.F.R. § 3.400(o)(2) (treating, since its
promulgation in 1975, increase in disability as a factual
matter). Massie 724 F.3d at 1328–29.
Here, what had to be ascertainable in 1996 was an in-
crease in the disability-causing conditions from what they
were in 1968, when the 60% rating was assigned. But, as
the Veterans Court explained, the Board found that Mr.
Evans’s paralysis rating in 1968 encompassed his shoulder
pain and that there was no basis to find that Mr. Evans’s
shoulder worsened since 1968. J.A. 64–65; Decision, at *3.
Those predicate factual findings are unreviewable by this
court, and unless disturbed, they preclude the determina-
tion sought by Mr. Evans—that his 1996 medical record
qualified as an informal claim.
Because we are without jurisdiction to rule on the is-
sues presented by Mr. Evans, we dismiss his appeal.
The parties shall bear their own costs.
DISMISSED
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