Case: 24-1128 Document: 15 Page: 1 Filed: 04/10/2024
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`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ROB W. ROBERTS,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2024-1128
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 22-5244, Judge Amanda L. Mere-
`dith, Judge Coral Wong Pietsch, Judge Joseph L. Falvey,
`Jr.
`
`______________________
`
`Decided: April 10, 2024
`______________________
`
`ROB ROBERTS, Wausau, WI, pro se.
`
`
` KRISTIN ELAINE OLSON, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent-appellee. Also represented by
`BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
`MCCARTHY.
`
`______________________
`
`

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`Case: 24-1128 Document: 15 Page: 2 Filed: 04/10/2024
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`2
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`ROBERTS v. MCDONOUGH
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`
`Before DYK, MAYER, and TARANTO, Circuit Judges.
`PER CURIAM.
`Rob W. Roberts appeals from a decision of the United
`States Court of Appeals for Veterans Claims (“Veterans
`Court”) denying him an earlier effective date for disability
`compensation claims. We affirm in part and dismiss in
`part.
`
`BACKGROUND
`Mr. Roberts served in the U.S. Marine Corps from Jan-
`uary 1981, to January 1984, and in the U.S. Army from Oc-
`tober 1987, to March 1993. He received an honorable
`discharge from the Marine Corps, and his service in the
`Army is considered honorable for VA purposes through
`March 1993. He also served in the U.S. Army from April
`1993, to July 2002. For this period, Mr. Roberts received a
`dishonorable discharge.
`On January 13, 2003, Mr. Roberts filed a disability ben-
`efits claim for hearing loss, tinnitus, anxiety, depression,
`chronic fatigue syndrome (“CFS”), joint aches, trigeminal
`neuralgia, memory loss, and muscle aches. In April 2005,
`the VA regional office (“RO”) denied all benefits. Mr. Rob-
`erts filed a Notice of Disagreement (“NOD”) in April 2006,
`stating he disagreed with “all determinations denying [his]
`claim.” S.A. 2. In this NOD, Mr. Roberts also requested to
`amend his claim to include abdominal pain, cramps, diar-
`rhea, irritable bowel syndrome (“IBS”), flaking skin, a rash,
`lesions, lipomas, and sinus blockage.
`In December 2007 the RO granted Mr. Roberts a 10%
`rating for the conditions of tinnitus, CFS, muscle aches,
`and joint aches with neuralgia, disabilities which were
`listed in the January 13, 2003, claim. The benefits were
`given an effective date of January 13, 2003. The RO had
`also construed Mr. Roberts’ requested amendment as a
`new claim for IBS, skin problems, and a sinus condition,
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`ROBERTS v. MCDONOUGH
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`3
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`and in May 2007 denied benefits for those conditions. Mr.
`Roberts filed a NOD in September 2008. In January 2010,
`the RO granted Mr. Roberts benefits for IBS, effective April
`24, 2006, the date of his NOD in which he requested to
`amend his claim to include IBS. Mr. Roberts appealed the
`RO’s decision, disagreeing as to the effective dates on the
`theory that each claim had an effective filing date of Janu-
`ary 13, 2003, within one year of his release or discharge.
`The Board of Veterans’ Appeals (“Board”) issued a de-
`cision on August 9, 2022, denying earlier effective dates
`than: (1) January 13, 2003, for tinnitus and fibromyalgia;
`(2) April 24, 2006, for IBS; and (3) June 9, 2016, for a 70%
`rating for PTSD and a 60% rating for CFS.1 The Board
`remanded several other matters. Mr. Roberts appealed to
`the Veterans Court.
`The Veterans Court affirmed the Board’s denial of an
`earlier effective date for tinnitus, fibromyalgia, IBS, PTSD,
`and CFS. Additionally, the Veterans Court rejected Mr.
`Roberts’ arguments that the “VA violated its duty to assist
`and his due process rights, unreasonably delayed the
`claims process, failed to consider evidence from his third
`period of service, and misapplied the requirements for es-
`tablishing service connection, including on a presumptive
`basis.” S.A. 11.
`Mr. Roberts appeals.
`DISCUSSION
`Our jurisdiction to review decisions of the Veterans
`Court is limited. Except for constitutional issues, we may
`not review any “challenge to a factual determination” or
`
`
`1 The Board also denied an earlier effective date
`than June 9, 2016, for dermatitis, lipomas, and vasomotor
`rhinitis. However, the Veterans Court vacated and re-
`manded this matter and thus it is not before us.
`
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`ROBERTS v. MCDONOUGH
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`any “challenge to a law or regulation as applied to the facts
`of a particular case.” 38 U.S.C. § 7292(d)(2). Additionally,
`under 38 U.S.C. § 7292(d)(1), we must decide “all relevant
`questions of law, including interpreting constitutional and
`statutory provisions” and affirm a Veterans Court decision
`unless it is “(A) arbitrary, capricious, an abuse of discre-
`tion, or otherwise not in accordance with law; (B) contrary
`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.” 38 U.S.C.
`§ 7292(d)(1).
`Mr. Roberts argues for an earlier effective date of “ei-
`ther February 1, 2002, the day following his release, or July
`8, 2002, the day after discharge,” because under the rele-
`vant statute, a disability claim filed within one year of re-
`lease or discharge is entitled to an effective date of the
`release or discharge. Appellant Br. 15. Mr. Roberts points
`to 38 U.S.C. § 5110(b)(1) which provides that “[t]he effec-
`tive date of an award of disability compensation to a vet-
`eran shall be the day following the date of the veteran’s
`discharge or release if application therefor is received
`within one year from such date of discharge or release.”
`Since Mr. Roberts applied for benefits on January 13, 2003,
`which was within one year of his discharge or release, he
`argues that he should be granted an earlier effective date
`under the statute.
`However, 38 U.S.C. § 101(2) provides that a “veteran”
`is “a person who served in the active military, naval, air, or
`space service, and who was discharged or released there-
`from under conditions other than dishonorable.” Imple-
`menting the statute, the regulations provides that
`“[s]eparation from service means separation under condi-
`tions other than dishonorable from continuous active ser-
`vice which extended from the date the disability was
`incurred or aggravated.” 38 C.F.R. § 3.400(b)(2)(i) (empha-
`sis added). Thus, “[t]he Board found that, even though the
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`ROBERTS v. MCDONOUGH
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`2003 claim was filed within 1 year of the appellant’s third
`period of service, ‘dishonorable periods of service cannot be
`used to qualify . . . for service connection.’” S.A. 8 (quoting
`S.A. 18).
`Mr. Roberts is not challenging the application of law to
`the particular facts of his case, nor asking us to re-weigh
`the relevant facts. Instead, he argues that 38 U.S.C.
`§ 5110(b)(1) is controlling and the regulation should not be
`followed. Thus, we have jurisdiction under 38 U.S.C.
`§ 7292(c) to review the Veterans Court’s interpretation of
`the statutes and regulation.
`We note that Mr. Roberts is not entitled to benefits for
`his period of service ending in dishonorable discharge. Vet-
`eran is defined as “a person who served in the active mili-
`tary, naval, air, or space service, and who was discharged
`or released therefrom under conditions other than dishon-
`orable.” 38 U.S.C. § 101(2). The statute clearly suggests
`that an individual is not entitled to benefits for periods of
`service ending in a dishonorable discharge. Indeed, it has
`long been held that disability benefits are not available for
`periods of active duty terminating in a dishonorable dis-
`charge. See, e.g., D’Amico v. West, 209 F.3d 1322, 1326
`(Fed. Cir. 2000). Because Mr. Roberts is not entitled to any
`benefits resulting from his dishonorable discharge, it must
`follow that he cannot use his dishonorable discharge to se-
`cure an earlier effective date for benefits.
`Mr. Roberts also argues that the RO should grant him
`an effective date of January 13, 2003, for IBS because his
`April 2006, NOD should have been interpreted as an
`amendment to the January 13, 2003, claim and not a new
`claim. This is a challenge to the Board’s factual determi-
`nation that Mr. Roberts “had not filed formal or informal
`claims for [IBS] prior to [April 24, 2006].” S.A. 9–10. We
`therefore lack jurisdiction over this claim. We have consid-
`ered Mr. Roberts’ other arguments and conclude that we
`likewise lack jurisdiction over those claims.
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`ROBERTS v. MCDONOUGH
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`CONCLUSION
`We hold that the Veterans Court’s interpretation of 38
`U.S.C. § 5110 and 38 C.F.R. § 3.400 was not arbitrary, ca-
`pricious, an abuse of discretion, or otherwise not in accord-
`ance with law. Mr. Roberts’ appeal otherwise raises issues
`not within our jurisdiction.
`AFFIRMED-IN-PART AND DISMISSED-IN-PART
`COSTS
`
`No costs.
`
`