404 F. App'x 493
Fed. Cir.2010Background
- Campbell served in the Army from Jan 1968 to Dec 1969 and from Sep 1972 to May 1979.
- On May 16, 1979, Campbell filed a claim covering left shoulder bursitis and other issues, including prior injuries.
- In Oct 1979, the RO denied service connection for the left shoulder after a VA exam, and Campbell filed a notice of disagreement.
- In Sep 2002, Campbell claimed retroactive to May 1979 for both shoulders; the RO granted left and right shoulder bursitis at 20% effective Sep 7, 2002; left shoulder had an earlier May 17, 1979 effective date with noncompensable rating until 2002.
- The RO denied an earlier effective date for the right shoulder, finding no pre-2002 claim for that condition.
- The Board ruled there was no pending pre-2002 right-shoulder claim and could not collateral attack the 1979 decision; the Veterans Court affirmed; Campbell appealed to the Federal Circuit seeking an earlier effective date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review factual determinations | Campbell contends the Veterans Court and Board misweighed facts. | The court may review only legal questions, not factual findings. | Jurisdiction to review factual determinations is lacking; appeal dismissed. |
| Whether there was a pre-2002 claim for a right shoulder disability | May 1979 application and records could show a right-shoulder claim. | The 1979 application and October 1979 decision concerned the left shoulder only; no pre-2002 right-shoulder claim existed. | No pre-2002 right-shoulder claim; no earlier effective date warranted. |
Key Cases Cited
- Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007) (VA presumed to have considered all evidence of record)
- Johnson v. Derwinski, 949 F.2d 394 (Fed. Cir. 1991) (limited review of factual determinations in VA appeals)
- Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999) (duty to assist is a factual matter outside jurisdiction)
- Ferguson v. Principi, 273 F.3d 1072 (Fed. Cir. 2001) (benefit-of-the-doubt doctrine is a question of law-to-fact application outside jurisdiction)
- Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008) (claim-content interpretation is a factual issue outside jurisdiction)
- Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (weighing of evidence is a factual matter outside jurisdiction)
- Flores v. Nicholson, 476 F.3d 1379 (Fed. Cir. 2007) (constitutional arguments must be properly raised to invoke jurisdiction)