Case: 23-1548 Document: 74 Page: 1 Filed: 04/03/2024
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`EUGENE W. JAROG,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2023-1548
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 22-4229, Judge Joseph L. Toth.
`______________________
`
`Decided: April 3, 2024
`______________________
`
`EUGENE W. JAROG, Honolulu, HI, pro se.
`
`
` MEREDYTH COHEN HAVASY, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent-appellee. Also repre-
`sented by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI,
`PATRICIA M. MCCARTHY.
` ______________________
`
`Before LOURIE, REYNA, and CHEN, Circuit Judges.
`
`
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`EUGENE W. JAROG,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2023-1548
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 22-4229, Judge Joseph L. Toth.
`______________________
`
`Decided: April 3, 2024
`______________________
`
`EUGENE W. JAROG, Honolulu, HI, pro se.
`
`
` MEREDYTH COHEN HAVASY, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent-appellee. Also repre-
`sented by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI,
`PATRICIA M. MCCARTHY.
` ______________________
`
`Before LOURIE, REYNA, and CHEN, Circuit Judges.
`
`
`
`Case: 23-1548 Document: 74 Page: 2 Filed: 04/03/2024
`
`2
`
`JAROG v. MCDONOUGH
`
`PER CURIAM.
`
`Eugene W. Jarog appeals from an order of the United
`States Court of Appeals for Veterans Claims (“the Veterans
`Court”) dismissing his appeal from the Board of Veterans’
`Appeals (“the Board”) as untimely. Jarog v. McDonough,
`No. 22-4229, 2022 WL 14770657 (Vet. App. Oct. 26, 2022)
`(“Decision”). For the reasons detailed below, we dismiss
`Jarog’s appeal for lack of jurisdiction.
`BACKGROUND
`Jarog served in the United States Marine Corps from
`May 1961 to March 1964. SAppx. 21.1 In 2016, Jarog re-
`ceived rating decisions from the Department of Veterans
`Affairs (“VA”) Regional Office (“RO”) for post-traumatic
`stress disorder (“PTSD”), a left thumb injury, and an eye
`disorder. SAppx. 8. Jarog appealed those rating decisions
`to the Board, and after a remand, the Board issued its de-
`cision on June 22, 2020. SAppx. 7, 9. The Board held that
`Jarog had established a service connection for his PTSD
`and that Jarog’s thumb injury met the criteria for the max-
`imum schedular rating of 20 percent. SAppx. 8. However,
`the Board also determined that Jarog had not established
`service connection for his eye disorder. Id.
`On July 12, 2022, Jarog filed a notice of appeal of that
`June 2020 Board decision to the Veterans Court, and the
`government subsequently moved to dismiss his appeal as
`untimely. Decision at *1. The Veterans Court held that
`Jarog’s appeal was indeed untimely under 38 U.S.C.
`§ 7266(a) and that it could therefore only be accepted if eq-
`uitable tolling was warranted. Id. The court then deter-
`mined that Jarog failed to sufficiently demonstrate a
`connection between an extraordinary circumstance and his
`
`“SAppx.” refers to the supplemental appendix that
`1
`the government filed in this court with its informal re-
`sponse brief.
`
`
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`Case: 23-1548 Document: 74 Page: 3 Filed: 04/03/2024
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`JAROG v. MCDONOUGH
`
`3
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`failure to timely file an appeal. Id. Accordingly, the Vet-
`erans Court held that equitable tolling should not be ap-
`plied and dismissed Jarog’s appeal. Id. at *1–2. This
`appeal followed.
`
`DISCUSSION
`Our jurisdiction to review decisions of the Veterans
`Court is limited. We may review the validity of a decision
`with respect to a rule of law or interpretation of a statute
`or regulation that was relied upon by the Veterans Court
`in making its decision. 38 U.S.C. § 7292(a). However, ex-
`cept with respect to constitutional issues, we may not re-
`view challenges to factual determinations or challenges to
`the application of a law or regulation to the facts of a case.
`38 U.S.C. § 7292(d)(2).
`In reviewing a Veterans Court decision, we decide “all
`relevant questions of law, including interpreting constitu-
`tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
`We may set aside any interpretation thereof “other than a
`determination as to a factual matter” relied upon by the
`Veterans Court that we conclude is “(A) arbitrary, capri-
`cious, an abuse of discretion, or otherwise not in accordance
`with law; (B) contrary to constitutional right, power, privi-
`lege, or immunity; (C) in excess of statutory jurisdiction,
`authority, limitations, or in violation of a statutory right;
`or (D) without observance of procedure required by law.”
`Id. We review questions of statutory and regulatory inter-
`pretation de novo. Andre v. Principi, 301 F.3d 1354, 1358
`(Fed. Cir. 2002) (citing Maggitt v. West, 202 F.3d 1370,
`1374 (Fed. Cir. 2000)).
`In this appeal, Jarog primarily argues that the Board
`should have assigned an earlier effective date to the service
`connection for his PTSD. Jarog asserts that the Board
`should have assigned an effective date of April 1962 to that
`service connection, and he alleges that the Board instead
`improperly assigned it an effective date of December 2002.
`As such, he claims that the Board committed clear and
`
`
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`Case: 23-1548 Document: 74 Page: 4 Filed: 04/03/2024
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`4
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`JAROG v. MCDONOUGH
`
`unmistakable error (“CUE”). Although the Board’s deci-
`sion is unclear regarding the effective date of the service
`connection for Jarog’s PTSD, the exact date is irrelevant
`because its determination involves the application of law to
`the facts of Jarog’s instant case. By statute, “the effective
`date of an award . . . shall be fixed in accordance with the
`facts found,” 38 U.S.C. § 5110(a)(1), and that determina-
`tion involves an examination of a veteran’s service and
`medical records.
`Jarog also raises contentions regarding possible inju-
`ries to his right leg and left ear. However, neither of those
`injuries was mentioned in the Board or Veterans Court de-
`cisions underlying this appeal. As such, a determination
`that Jarog possesses those injuries, and whether or not
`they may be compensable, would involve factual determi-
`nations and the application of law to those findings in the
`first instance.
`Finally, Jarog argues that the Veterans Court’s August
`2022 Statement of the Case contained two instances of
`CUE: (1) a determination that Jarog is single with no de-
`pendents and (2) a determination that Jarog served during
`peacetime. Jarog contends that he does have dependent
`individuals, citing monetary contributions to a “sister fam-
`ily” and a charity. Furthermore, Jarog asserts that his pe-
`riod of active service did not occur during peacetime given
`the ongoing Cuban Missile Crisis. Appellant’s Br. at 15.
`However, those are likewise arguments regarding factual
`determinations by the Veterans Court.
`Furthermore, Jarog does not raise any constitutional
`issues involving those contentions and states in his brief
`that the Veterans Court did not decide any constitutional
`issues in its decision. Appellant’s Br. at 2.
`Each of Jarog’s arguments on appeal therefore con-
`cerns factual determinations or the application of law to
`the facts of his case, in the absence of any constitutional
`
`
`
`Case: 23-1548 Document: 74 Page: 5 Filed: 04/03/2024
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`JAROG v. MCDONOUGH
`
`5
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`issues. Accordingly, we do not possess jurisdiction to de-
`cide this appeal under 38 U.S.C. § 7292.
`CONCLUSION
`We have considered Jarog’s remaining arguments, but
`we find them unpersuasive. For the foregoing reasons, we
`dismiss his appeal for lack of jurisdiction.
`DISMISSED
`COSTS
`
`No costs.
`
`
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