                        NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                         2009-7060

                                   JOHN C. JOHNSON,

                                                              Claimant-Appellant,

                                             v.

                    ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                              Respondent-Appellee.


      John C. Johnson, of Las Vegas, Nevada, pro se.

       Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With her on
the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Donald E. Kinner, Assistant Director. Of counsel on the brief were Michael J.
Timinski, Deputy Assistant General Counsel, and Christa A. Childers, Attorney, Office of
the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Mary J. Schoelen
                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2009-7060


                                 JOHN C. JOHNSON,

                                                            Claimant-Appellant,

                                           v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.

           Appeal from the United States Court of Appeals for Veterans Claims in
           06-2212, Judge Mary J. Schoelen.
                           ____________________________

                              DECIDED: July 10, 2009
                          ____________________________


Before NEWMAN, LOURIE, and RADER, Circuit Judges.

PER CURIAM.
                                      DECISION

      John C. Johnson appeals from the final decision of the Court of Appeals for

Veterans Claims (the “Veterans Court”) affirming the denial of an earlier effective date

for his claim for service connection for diabetes mellitus by the Board of Veterans’

Appeals (the “Board”). Johnson v. Shinseki, No. 06-2212 (Vet. App. Jan. 28, 2009).

Because Johnson is appealing factual determinations not within our jurisdiction, we

dismiss.
                                     BACKGROUND

       Johnson served on active duty in the U.S. Marine Corps from July 1962 to

October 1966 and was exposed to Agent Orange during his service. The Department of

Veterans Affairs (the “VA”) received his initial claim for service connection for diabetes

mellitus, which was dated May 8, 2002, on May 31, 2002. In January 2003, a VA

regional office awarded Johnson service connection for diabetes mellitus and assigned

a disability rating of 20 percent, effective May 8, 2001.

       On appeal, the Board denied an earlier effective date, finding that Nehmer v.

United States Veterans’ Administration, 712 F. Supp. 1404 (N.D. Cal. 1989), did not

entitle Johnson to an earlier effective date. Nehmer invalidated a VA regulation that

denied service connection for all diseases but chloracne following exposure to Agent

Orange. Under a new regulation implementing the Nehmer decision, 38 C.F.R. § 3.816,

diabetes mellitus was added as a disease presumptively caused by in-service exposure

to Agent Orange with an effective date of May 8, 2001. The Board noted that Johnson’s

claim was not received until May 31, 2002, and thus fell under 38 C.F.R. § 3.816(c)(4),

which requires the effective date to be determined under 38 C.F.R. §§ 3.114 and 3.400.

Under 38 C.F.R. § 3.114(a)(3), the Board concluded that an effective date prior to May

8, 2001, was not warranted.

       Johnson appealed to the Veterans Court, arguing again that Nehmer required the

VA to award him an effective date prior to May 8, 2001, for service connection for

diabetes mellitus. On January 28, 2009, the Veterans Court upheld the Board. Like the

Board, the Veterans Court stated that although Johnson was a Nehmer class member,

he was not entitled to an earlier effective date under 38 C.F.R. § 3.816(c)(1) or (c)(2)



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                                         -2-
because he did not have a claim for service connection for diabetes mellitus pending

before May 8, 2001. The Veterans Court then reviewed the application of 38 C.F.R.

§ 3.114, as prescribed under 38 C.F.R. 3.816(c)(4), and determined that the effective

date of May 8, 2001 was correct.           The Veterans Court found Johnson’s other

arguments, including violations of the First, Fifth, and Ninth Amendments to the U.S.

Constitution and improper exclusion of documents from the record, to be meritless.

       Johnson timely appealed the Veterans Court’s decision to this court. We have

jurisdiction pursuant to 38 U.S.C. § 7292.

                                       DISCUSSION

       The scope of our review in an appeal from a decision of the Veterans Court is

limited to the “validity of a decision of the [Veterans Court] on a rule of law or of any

statute or regulation . . . or any interpretation thereof (other than a determination as to a

factual matter) that was relied on by the [Veterans Court] in making the decision.” 38

U.S.C. § 7292(a). We must decide “all relevant questions of law” and must set aside

any regulation or interpretation thereof “other than a determination as to a factual

matter” that we find “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a

statutory right; or (D) without observance of procedure required by law.” 38 U.S.C.

§ 7292(d)(1). Except for an appeal that presents a constitutional issue, we may not

review “(A) a challenge to a factual determination, or (B) a challenge to a law or

regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).




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                                         -3-
       In the instant action, Johnson raises a number of allegations of wrongdoing in his

briefing but fails to provide any argument that can serve as a basis for our jurisdiction.

He argues that the effective date assigned to his claim for service connection for

diabetes mellitus was incorrect under Nehmer. But rather than alleging legal error,

Johnson primarily focuses on the Veterans Court’s exclusion of medical and historical

evidence relating to herbicide poisoning that he contends establish his right to an earlier

effective date, a factual challenge that does not fall within our jurisdiction. 38 U.S.C.

§ 7292(d)(2). To the extent that he argues that Nehmer was misapplied to the facts of

his case, we do not have jurisdiction to review that issue either. Id.; see also Wells v.

Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (citing same in finding a challenge to an

evidentiary ruling by the Veterans Court to be outside of our jurisdiction). Furthermore,

the Veterans Court did not purport to decide any constitutional issues, and Johnson’s

allegations of violations of his First, Fifth, and Ninth Amendment rights on appeal are

generalized grievances of unfair treatment, many of which are unrelated to his claim for

an earlier effective date. Because his assertions do not raise genuine constitutional

issues, they also do not present an opportunity for our review of the facts or application

of law or regulation to fact. 38 U.S.C. § 7292(d)(2); see also Helfer v. West, 174 F.3d

1332, 1335 (Fed. Cir. 1999) (“[The] characterization of that question as constitutional in

nature does not confer upon us jurisdiction that we otherwise lack.”).

       Thus, Johnson’s appeal does not challenge the validity of any statute or

regulation, nor does his appeal raise any genuine constitutional issue that could form

the basis for our jurisdiction. Accordingly, we dismiss.

                                         COSTS



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                                        -4-
     No costs.




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                 -5-
