Curtis v. Wilkie

Case: 20-1349 Document: 20 Page: 1 Filed: 10/27/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

DANIEL L. CURTIS, Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2020-1349 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-6818, Judge Michael P. Allen. ______________________

Decided: October 27, 2020 ______________________

DANIEL L. CURTIS, Mosca, CO, pro se.

JANA MOSES, Commercial Litigation Branch, Civil Di- vision, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by JEFFREY B. CLARK, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR.; CHRISTINA LYNN GREGG, BRIAN D. GRIFFIN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Case: 20-1349 Document: 20 Page: 2 Filed: 10/27/2020 2 CURTIS v. WILKIE

Before NEWMAN, DYK, and HUGHES, Circuit Judges. PER CURIAM. Appellant Daniel L. Curtis appeals the memorandum decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals decision to deny Mr. Curtis an effective date earlier than February 6, 2013, for service connection for coronary artery disease. Curtis v. Wilkie, No. 18-6818, 2019 WL 4309770 (Vet. App. Sept. 12, 2019) (Decision). Mr. Curtis also makes argu- ments related to a reasonably raised claim for service con- nection for anxiety and to his requests for specific paper records. Because Mr. Curtis only challenges factual deter- minations or the application of law to fact, issues we lack jurisdiction to review, we dismiss. I Mr. Curtis served on active duty in the United States Army from December 1969 to September 1972. Decision at *¹. On February 6, 2013, the Department of Veterans Affairs received Mr. Curtis’s claim for service connection for coronary artery disease. Appellant’s Br. 120. 1 VA granted presumptive service connection based on exposure to Agent Orange and assigned a 100 percent rating, effec- tive February 6, 2013. Id. Mr. Curtis appealed the effective date assigned for his service-connected coronary artery disease to the Board, as- serting that the effective date should have been as early as the day after his discharge from service, because he filed a claim for service connection for a heart disorder within a

Case: 20-1349 Document: 20 Page: 3 Filed: 10/27/2020 CURTIS v. WILKIE 3

year of his separation from the military. Id. In support of his claim, Mr. Curtis submitted a copy of his application for medical benefits form dated October 19, 1972, and a medi- cal record dated October 19, 1972. Id. at 121. On November 9, 2018, the Board denied an effective date earlier than February 6, 2013. Id. at 117. The Board considered the statements of both Mr. Curtis and his friend, Joe Funk, submitted in connection with his Febru- ary 2013 claim about symptoms going back to 1972. Deci- sion at *². The Board also considered Mr. Curtis’s correspondence sent to VA in October 1972, which it deter- mined was an application for medical benefits rather than disability benefits. Id. Further, the section where medical conditions should be listed was left blank, and the treat- ment record that accompanied the application indicated a diagnosis of a potential viral infection rather than a heart disorder. Id. Accordingly, the Board found that Mr. Cur- tis’s February 6, 2013, claim for service connection was the first claim for a heart disorder and the earliest effective date that could be assigned. Id. The Veterans Court held that the Board had ade- quately considered the 1972 application and medical rec- ord, and thus did not err in finding that the application and medical record did not constitute a claim for benefits. Id. II This court lacks jurisdiction to review factual issues and issues of application of law to fact. Cook v. Principi, 353 F.3d 937, 939 (Fed. Cir. 2003); see also 38 U.S.C. § 7292(d)(2). “[F]actual findings of when a disability was claimed or service connection established are not subject to our review.” Butler v. Shinseki, 603 F.3d 922, 926 (Fed. Cir. 2010). Because Mr. Curtis’s appeal raises only such issues, we dismiss for lack of jurisdiction. Mr. Curtis also argues that we should remand for the Board to address whether a claim for service connection for

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anxiety was raised by an August 2013 VA examination of his heart. 2 However, the Veterans Court determined that Mr. Curtis did not produce any documents that indicated an intent to file a claim for anxiety, and “the interpretation of the contents of a claim for benefits [is] a factual issue over which we [do] not have jurisdiction.” Ellington v. Peake, 541 F.3d 1364, 1371 (Fed. Cir. 2008). Finally, Mr. Curtis attempts to frame his request to ac- cess his paper claims file in constitutional terms, asserting that his case presents the constitutional issue of whether “an electronic file disclosure meet[s] the Due Process right to view the paper file.” Appellant’s Br. 1 at item 3. The Veterans Court considered Mr. Curtis’s request for access to the paper file but concluded that “it [was] not clear what additional information [Mr. Curtis] could require or that VA committed error by failing to provide it. Thus, he ha[d] failed to fully develop this argument, and the [Veterans] Court need not consider it further.” Decision at *3. This Court does not have jurisdiction to review an issue not de- cided by the Veterans Court because it determined that the issue was not adequately raised. Andre v. Principi, 301 F.3d 1354, 1362–63 (Fed. Cir. 2002). Accordingly, we do not have jurisdiction to review this issue. III Because we lack jurisdiction to review the issues raised by Mr. Curtis in this appeal, we dismiss. DISMISSED No Costs.

Footnotes

[1] Citations to Mr. Curtis’s informal brief (and the pages and documents included therein) reflect the pagina- tion applied by this court’s electronic case files system, Docket No. 3.

[2] The Secretary notes that Mr. Curtis is service con- nected for PTSD with a 100% rating since 1992, which con- templates anxiety symptoms. Decision at *3.