Full text
Remilien v. McDonough
Case: 22-1931 Document: 21 Page: 1 Filed: 11/14/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
JOSE REMILIEN, Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________
2022-1931 ______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 20-7704, Judge Scott Laurer. ______________________
Decided: November 14, 2023 ______________________
JOSE REMILIEN, Fort Lauderdale, FL, pro se.
AUGUSTUS JEFFREY GOLDEN, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY. ______________________
Before DYK, CHEN, AND STOLL, Circuit Judges. Case: 22-1931 Document: 21 Page: 2 Filed: 11/14/2023 2 REMILIEN v. MCDONOUGH
PER CURIAM. Jose Remilien appeals the final decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals’ decision denying Mr. Remilien benefits because he did not have qualifying military service to make him eligible to receive veteran benefits. We must dismiss because we lack jurisdiction to hear Mr. Remilien’s appeal. BACKGROUND Mr. Remilien contends that he served in the United States Army from November 1996 to April 2007. To qual- ify for veteran benefits, a service member must establish that he or she has veteran status. A veteran is “a person who served in the active military, naval, air, or space ser- vice, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2). The Board determined Mr. Remilien lacked the requi- site service to be eligible for veterans benefits because nei- ther Mr. Remilien nor the Department of Veterans Affairs (VA) were able to locate any records to verify his dates of service. SAppx. 1 12–14. In September 2014, Mr. Remilien filed claims for service connection for several asserted men- tal health conditions. SAppx. 10. When the VA regional office requested verification of his service, Mr. Remilien in- dicated that his DD Form 214 (Report of Separation) was destroyed in a fire. SAppx. 12. Mr. Remilien was unable to provide any other discharge documents or other docu- ments to prove that he served in the active military. SAppx. 12. As such, in November 2014, the VA regional office submitted a request to the relevant service depart- ment, seeking Mr. Remilien’s service records to establish his service, but the service department responded that it
Case: 22-1931 Document: 21 Page: 3 Filed: 11/14/2023 REMILIEN v. MCDONOUGH 3
was unable to find Mr. Remilien’s information in the online system. SAppx. 12. Over the next several years, at the re- quest of the Board, the regional office conducted multiple searches at multiple locations for any documentation that would verify Mr. Remilien’s military service. See SAppx. 12–13. These searches yielded none. Conse- quently, based on the service department’s certification that Mr. Remilien had no active service as a member of the U.S. Armed Forces, the Board found that “[he] did not have verifiable military service for VA purposes to establish en- titlement to VA benefits.” SAppx. 14. Mr. Remilien appealed and the Court of Appeals for Veterans Claims affirmed the Board’s decision. Remilien v. McDonough, 2022 WL 1055486, at *1 (Vet. App. Apr. 8, 2022); SAppx. 1–2. Given the VA’s efforts to locate Mr. Re- milien’s service documentation, the Veterans Court deter- mined the Board did not err in finding that Mr. Remilien did not have the requisite service to apply for VA benefits. Remilien, 2022 WL 1055486, at *1; SAppx. 2. Now, Mr. Remilien appeals and asks this court to review the fac- tual determination that he lacked qualifying military ser- vice. DISCUSSION Our jurisdiction over decisions of the Veterans Court is limited. Under 38 U.S.C. § 7292(a), we may review “the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision.” “Except to the extent that an appeal . . . presents a constitutional issue,” we “may not review (A) a challenge to a factual determination, 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); see, e.g., Conway v. Principi, 353 F.3d 1369, 1372–73 (Fed. Cir. 2004).
Case: 22-1931 Document: 21 Page: 4 Filed: 11/14/2023 4 REMILIEN v. MCDONOUGH
Mr. Remilien asks this court to review the factual de- termination that he lacked qualifying military service. Mr. Remilien asserts that the Board’s decision relied on in- correct dates of entry and release, and he provides updated dates. Appellant’s Br. 2–3. 2 We lack jurisdiction over Mr. Remilien’s appeal be- cause the Board’s determination of veteran status, upheld by the Veterans Court, is a finding of fact. See Rubia v. Shinseki, 524 F. App’x 707, 711 (Fed. Cir. 2013) (non- precedential). It does not involve the validity or interpre- tation of a statute or regulation. Nor does it raise any constitutional issues. See Appellant’s Br. 2. Rather, the appeal essentially asks us to make a factual determination in Mr. Remilien’s favor as it relates to qualifying military service. Therefore, we dismiss. DISMISSED COSTS No costs.
Footnotes
[1] Citations to “SAppx.” refer to the supplemental ap- pendix filed by the Government.
[2] Citations to Mr. Remilien’s informal brief reflect the pagination applied by this court’s electronic case files system.