Jоhn W. Conley appeals from a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the decision of the Board of Veterans’ Appeals (“Board”) denying Conley an еffective date earlier than April 9,1992, for his service-connected major depressive disorder.
See Conley v. Nicholson,
No. 04-0341,
BACKGROUND
John W. Conley is a veteran of the United States Army, having served from June 1970 to September 1971. In June 1971, while on leave from his post in Germany, Conley was admitted to a Department of Veterans Affairs (“VA”) hospital in Omaha, Nebrаska, after a suicide attempt. Medical records from his hospitalization indicate diagnoses of “depressive neurosis” and “premorbid personality.” He was discharged from the Army after a July 1971 psychiatric examination recommended that he be separated from service due to inadaptability resulting from a “severe personality disorder.” In October 1971, Conley sought service connection for “emоtional instability reaction.” However, when a November 1971 psychiatric examination diagnosed him with “[p]ersonality disorder, passive-aggressive personality,” the VA Regional Office (“RO”) denied his application for service connection on the grounds that a personality disorder was not a compensable disability under 38 C.F.R. § 3.303(c). Conley chose not to appeal that decision.
Conley attempted to reopen his claim in April 1992 by requesting VA compensation for, inter alia, a nervous condition. A psychiatric examination in May 1992 diagnosed him with “[rjecurrent depressive disorder, rather severe” and “[bjorderline pеrsonality disorder.” The RO determined in September 1992 that Conley’s claim for benefits related to a “nervous condition” was the same claim that had been denied in 1972 and that he had not presented new and materiаl evidence to reopen the claim. Conley disagreed and promptly appealed to the Board.
In February 1995, the Board remanded Conley’s claim to the RO to obtain additional service medical records related to his June 1971 hospitalization. After the records were reviewed, a December 1996 rating decision found no new and material evidence. After further development, the Board denied reopening of the claim in May 1997, determining that “no new evidence which [was] not cumulative or dupli-cative of evidence previously received and considered and which [was] sufficiently relevant and probative” had been submitted in order to reopen the claim. Conley appealed this decision to the Veterans Court. 1
The court remanded the matter to the Board in December 1998 with instructions to determine if Conley’s new evidence (including outpatient medical records dated from March to May 1992) was material under the proper standards. See 38 C.F.R. § 3.156; Hodge v. West, 155 F.3d *1304 1356 (Fed.Cir.1998). In June 1999, the Board reopened Conley’s claim and, аfter review under the correct standard, remanded the matter to the RO for readjudication. In January 2000, the RO awarded Conley service connection for “major depressive disorder with psychotic feаtures” and assigned a 100% disability rating, effective April 9, 1992. Conley disagreed with the effective date and filed a Notice of Disagreement in January 2001, arguing that the 1972 RO decision that had denied his claim contained clear and unmistakable error (“CUE”) and that he was entitled to an effective date of September 24, 1971. A May 2001 rating decision found that “no revision [was] warranted in the decision to deny service connection for a рersonality disorder in 1972” because the “decision was properly based on the available evidence of record at the time.”
A Statement of the Case issued by the RO in December 2002 found no CUE in the 1972 RO decision and continued the effective date of April 9, 1992. Conley appealed to the Board, and in January 2004, the Board also denied an effective date earlier than April 9, 1992 after concluding that CUE had not bеen committed in the January 1972 RO decision. The Board reasoned that the 1972 decision was based on medical records indicating only a personality disorder, a condition for which compensation may nоt be granted under applicable law. Conley appealed to the Veterans Court, and in August the Veterans Court affirmed the Board’s January 2004 decision. Conley then timely appealed to this court.
DISCUSSION
This court may review decisions of the Veterans Court with respect to the “validity of any statute or regulation or any interpretation thereof’ and may also “interpret constitutional and statutory provisions, to thе extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We review without deference decisions of law by the Veterans Court.
Moody v. Principi,
Conley argues that the Veterans Court misinterpreted the presumption of service connection under 38 U.S.C. § 105(a), which provides that “[a]n injury or disease incurred during active military ... service will be deemed to have been incurred in line of duty and not the result of the veteran’s own misconduct” when the veteran was in active service, unless the injury was a result of the person’s own willful misconduct or abuse of alcohol or drugs. Conley argues that the VA erred in refusing to afford him the benefit of the presumption of service connection related to a psychiatric disability, and that but for the Board’s failure to apply the presumption provided by the statute, the VA would have been required to provide compensation. The sole issue presented in this appeal is whether the Veterans Court misinterpreted § 105(a).
In
Shedden v. Principi,
Here, to the extent the Veterans Court interpreted § 105(a), it did so by accepting, as it must, our language interpreting § 105(a) in
Shedden,
in which we explained that “the veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.”
See Shedden,
Under 38 C.F.R. § 3.303(c), which Conley does not challenge, personality disorders are considered “[congenital or developmental defects” for which sеrvice connection cannot be granted because they “are not diseases or injuries within the meaning of applicable legislation.” Accordingly, the second element of Shed-den (in-service incurrence or aggravation of a disease or injury) did not affect the 1972 decision to deny Conley’s claim; instead, the claim was denied because the VA found that Conley failed to satisfy the first prong (requirement of a рresent disability) since his diagnosis in 1972, at the time of his claim, was for a personality disorder only. Thus, even if the VA in fact failed to apply the presumption and that constituted error, it was harmless error because Cоnley’s claim for service connection did not meet the first of the Shedden factors.
To the extent Conley argues that evidence in the record indicated the presence of a compensable psychiatriс disorder (in addition to the diagnosed personality disorder) in 1972, the VA’s determination to the contrary is not reviewable by this court because it falls outside our jurisdiction. See 38 U.S.C. § 7292(d)(2) (“[The Federal Circuit] may not review [ ] a challengе to a factual determination.”). Thus, we cannot review the VA’s finding that Conley did not prove a compensable present disability at the time of his 1972 claim.
In sum, to the extent the Veterans Court’s recitation of our disсussion in Shedden can be considered its own interpretation of § 105(a), and not merely an application of our interpretation to the facts of this case, we agree with the Veterans Court’s interpretation. We also reaffirm that the factors laid out in Shedden remain the controlling precedent in establishing service connection for a current disability.
*1306 CONCLUSION
For the foregoing reasons, we affirm the decision of the Veterans Court affirming the Board’s denial of Conley’s claim for an effective date earlier than April 9, 1992.
COSTS
No costs.
Notes
. The United States Court of Veterans Appeals was renamed by Congress the United States Court of Appeals for Veterans Claims, effective March 1, 1999.