Case: 22-1252 Document: 35 Page: 1 Filed: 11/09/2022
`NOTE: This disposition is nonprecedential.
`United States Court of Appeals
`for the Federal Circuit
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 20-4867, Judge Scott Laurer.
`Decided: November 9, 2022
`MARVIN E. SANDERS, Compton, CA, pro se.
` ANN MOTTO, Civil Division, Commercial Litigation
`Branch, United States Department of Justice, Washington,
`DC, for respondent-appellee. Also represented by BRIAN M.
`AMANDA BLACKMON, Y. KEN LEE, Office of General Coun-
`sel, United States Department of Veterans Affairs, Wash-
`ington, DC.
` ______________________


`Case: 22-1252 Document: 35 Page: 2 Filed: 11/09/2022
`Before REYNA, CHEN, and CUNNINGHAM, Circuit Judges.
`Marvin E. Sanders appeals a decision of the U.S. Court
`of Appeals for Veterans Claims affirming the Board of Vet-
`erans’ Appeals’ denial of earlier effective dates for his dis-
`ability benefits and determining that it lacks jurisdiction
`over Mr. Sanders’ claim of clear and unmistakable error.
`We affirm.
`Mr. Sanders served on active duty in Vietnam from
`September 1972 to September 1976 and from November
`1977 to October 1981. Government SApp’x 521. While in
`service, Mr. Sanders complained of back pain, headaches,
`and pain in his right eye. See id. at 70; see also Reply Br. 2.
`In August 1986, Mr. Sanders submitted a disability
`claim for back, head, and eye injuries, which was denied by
`the VA Regional Office (“Regional Office”) in November
`1986. See Government SApp’x 70. Mr. Sanders did not ap-
`peal that decision and it became final. Id. at 53.
`On September 19, 2005, Mr. Sanders filed a claim for
`disability benefits due to degenerative disc disease (“DDD”)
`of the cervical and lumbar spine. Sanders SApp’x 13-142.
`The Regional Office denied his claim, and Mr. Sanders
`“Government SApp’x” refers to the appendix at-
`tached to the Government’s Response Brief.
`“Sanders SApp’x” refers to the appendix attached
`to Mr. Sanders’ Opening Brief. The page numbers refer to
`the electronic filing system page number at the top of each


`Case: 22-1252 Document: 35 Page: 3 Filed: 11/09/2022
`timely appealed to the Board of Veterans’ Appeals
`(“Board”). Id.
`In March 2006, Mr. Sanders sought to reopen his Au-
`gust 1986 disability claims for back pain, headaches, and
`pain in his right eye. Government SApp’x 31. The Re-
`gional Office denied the request, and Mr. Sanders timely
`appealed. Id.
`On appeal, the Board denied service connection for
`DDD of the lumbar spine. Id. at 63. The Board remanded
`Mr. Sanders’ claim of service connection for headaches and
`head injury, as well as DDD of the cervical spine, because
`it found that new and material evidence had been submit-
`ted for both of these claims. Id. at 51–67. The Board fur-
`ther determined that Mr. Sanders should undergo a VA
`examination, which was administered on February 17,
`2009. Id. at 46-47, 66.
`On August 20, 2010, the Regional Office granted
`Mr. Sanders’ claim for disability benefits for (1) headaches
`and head injury effective March 31, 2006; (2) DDD of the
`cervical spine effective September 19, 2005; and (3) DDD of
`the lumbar spine effective February 17, 2009. Sanders
`SApp’x 11. Mr. Sanders appealed to the Board, arguing he
`was entitled to an effective date of September 13, 1972, for
`all claims, which the Board denied.
` Government
`SApp’x 10–26.
`Mr. Sanders appealed to the Court of Appeals for Vet-
`erans Claims (“the Veterans Court”). He argued that he
`was entitled to a 1972 effective date and that the November
`1986 rating decision was based on a clear and unmistaka-
`ble error (“CUE”). Sanders v. McDonough, 2021 WL
`3864370 at *1 (Vet. App. Aug. 31, 2021) (“Decision”). The
`Veterans Court affirmed the Board’s decision denying the
`earlier effective dates and determined that it lacked juris-
`diction over Mr. Sanders’ CUE claims. Id. Mr. Sanders
`timely appealed. We have jurisdiction over appeals from
`the Veterans Court pursuant to 38 U.S.C. § 7292(a).


`Case: 22-1252 Document: 35 Page: 4 Filed: 11/09/2022
`We review the Veterans Court’s legal determinations
`de novo. Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed.
`Cir. 2014). Our authority over Veterans Court decisions is
`limited. We have no authority to engage in fact finding. 38
`U.S.C. § 7292(d)(1). We affirm the Veterans Court unless
`the decision is “(A) arbitrary, capricious, an abuse of dis-
`cretion, or otherwise not in accordance with law; (B) con-
`trary to constitutional right, power, privilege, or immunity;
`(C) in excess of statutory jurisdiction, authority, or limita-
`tions, or in violation of a statutory right; or (D) without ob-
`servance of procedure required by law.” Id.
`We affirm the Veterans Court’s determination that
`Mr. Sanders was not entitled to earlier effective dates. De-
`cision at *1–3. Generally, “the effective date of an award
`based on an initial claim . . . shall not be earlier than the
`date of receipt of application therefor.” 38 U.S.C.
`§ 5110(a)(1). Accordingly, Mr. Sanders is entitled to an ef-
`fective date that corresponds with the day each of his disa-
`bility claims at issue here were received. We affirm the
`Veterans Court’s determination that the effective date for
`the DDD of the cervical spine is September 19, 2005—the
`date that he filed the initial claim. Decision at *2–3. Re-
`garding Mr. Sanders’ remaining claims, we have held that
`“the earliest effective date for an award on a reopened
`claim is the date of the request for reopening, not the date
`of the original claim.” Ortiz v. McDonough, 6 F.4th 1267,
`1270–71 (Fed. Cir. 2021) (citing Sears v. Principi, 349 F.3d
`1326, 1331 (Fed. Cir. 2003); 38 C.F.R. § 3.400(q)–(r)). We
`thus affirm the Veterans Court’s determination that
`Mr. Sanders is entitled to an effective date for his disability
`benefits for service-connected headaches and head injury
`of March 31, 2006, and its determination that Mr. Sanders
`“could not receive an effective date earlier than [February


`Case: 22-1252 Document: 35 Page: 5 Filed: 11/09/2022
`17, 2009]” for the DDD of the lumbar spine. Decision at
`Next, Mr. Sanders argues that the Veterans Court
`erred in its decision that it lacked jurisdiction over his CUE
`claims. The Veterans Court determined that it did not
`have jurisdiction over Mr. Sanders’ CUE claims because
`Mr. Sanders failed to file a notice of disagreement alleging
`CUE occurred in his November 1986 rating decision as re-
`quired under 38 U.S.C. § 7105(a).3 Decision at *4. We have
`held that the Veterans Court has jurisdiction over a CUE
`claim so long as the veteran raised the CUE claim to the
`Regional Office, appealed the adverse decision to the
`Board, and then appealed the Board’s adverse decision to
`the Veterans Court. Andre v. Principi, 301 F.3d 1354, 1361
`(Fed. Cir. 2002). Here, Mr. Sanders failed to appeal the
`Board’s decision finding no CUE in the November 1986
`Ratings Decision. Accordingly, we affirm the Veterans
`Court’s determination that it lacks jurisdiction over the
`CUE claims.
`Mr. Sanders also argues that he was denied due pro-
`cess when he was not provided a physical or mental exam-
`ination before the November 1986 ratings decision. Mr.
`Sanders did not allege that his due process rights had been
`violated in the Veterans Court. We, therefore, do not have
`jurisdiction to review factual questions of whether Mr.
`Sanders received a physical or mental evaluation before
`November 1986. Johnson v. Derwinski, 949 F.2d 394, 395
`3 We note, as did the Veterans Court, that Mr. Sand-
`ers has filed other notices of disagreement raising CUE
`with respect to some of his other RO rating decisions. De-
`cision at *4. However, as the Veterans Court explained,
`these previous notices of disagreement did not consider
`whether there was CUE in the November 1986 rating deci-
`sion, and therefore did not properly begin the appeal pro-
`cess with respect to this issue.


`Case: 22-1252 Document: 35 Page: 6 Filed: 11/09/2022
`(Fed. Cir. 1992) (“[T]his court may not generally review
`challenges to factual determinations.”). In addition, as a
`general rule, this court may not consider an argument
`raised for the first time on appeal. See Boggs v. West, 188
`F.3d 1335, 1337–38 (Fed. Cir. 1999). With respect to due
`process claims that were not presented below, we exercise
`discretion whether to hear a due process argument on ap-
`peal. In this case, we decline to exercise such discretion.
`We note that Mr. Sanders is not prohibited from seek-
`ing a CUE claim in the November 1986 ratings decision. A
`“request for revision of a decision of the Secretary based on
`clear and unmistakable error may be made at any time af-
`ter that decision is made.” Andre, 301 F.3d at 1362 (quot-
`ing 38 U.S.C. § 5109A(d)).
`We affirm the Veterans Court’s affirmance of the
`Board’s decision denying Mr. Sanders an earlier effective
`date than March 31, 2006, for service-connected headaches
`and head injury; September 19, 2005, for service-connected
`DDD of the cervical spine; and February 17, 2009, for ser-
`vice-connected DDD of the lumbar spine. We also affirm
`the Veterans Court’s finding that it lacks jurisdiction over
`Mr. Sanders’ CUE claims.
`No costs.

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