                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2008-7043


                                   DAVID A. ATKINS,

                                                            Claimant-Appellant,

                                            v.

                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                            Respondent-Appellee.

      David A. Atkins, of St. Louis, Missouri, pro se.

      Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, and Mark A. Melnick, Assistant Director. Of counsel on the brief
was David J. Barrans, Deputy Assistant General Counsel, 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 William A. Moorman
                        NOTE: This disposition is nonprecedential.

     United States Court of Appeals for the Federal Circuit
                                       2008-7043

                                   DAVID A. ATKINS,

                                                      Claimant-Appellant,

                                            v.

                                JAMES B. PEAKE, M.D.
                              Secretary of Veterans Affairs

                                                      Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in case no. 05-
1486.

                            _______________________

                              DECIDED: June 9, 2008
                            _______________________


Before, BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

      David A. Atkins (“Atkins”) appeals the Court of Appeals for Veterans Claims’

(“Veterans Court”) judgment affirming the Board of Veterans’ Appeals’ (“Board”) denial

of his claim for an earlier effective date for service connection for schizophrenic

reaction. We affirm.

                                            I

      Atkins served on active duty in the United States Army from November 1969 to

December 1970.         In 1971, Atkins filed a claim for paranoid schizophrenia and

depression, which was denied by a Department of Veterans Affairs (“VA”) regional office
(“RO”). Atkins did not appeal the RO’s decision. In 1993, Atkins filed applications to

open his previously denied claim, and, in 1997, the RO granted Atkins a 50% rating for

service-connected schizophrenic reaction effective August 18, 1993. In 1998, Atkins

submitted a Notice of Disagreement (“NOD”) asserting that he should have received an

effective date in 1971.

       In 2005, the Board issued a decision finding, among other things, that the 1971

rating decision was final. This was based on the Board’s conclusion that no objective

evidence existed that indicated an NOD was ever filed and that Atkins failed to satisfy

the regulatory requirement that good cause existed for the Board to consider equitable

tolling of the time period for filing an NOD. 1 Atkins appealed this determination to the

Veterans Court.

       Through counsel, the only argument Atkins made on appeal to the Veterans

Court was that the Board should have found that the time for filing an NOD as to the

1971 RO decision was equitably tolled. Atkins asserted that his 1998 NOD was an

NOD as to the 1971 RO decision. The Veterans Court disagreed, holding that, based

upon the actual wording and the context in which the 1998 NOD was written and

submitted, it was an NOD as to the 1997 RO decision and not an NOD as to the 1971

RO decision. The Veterans Court thus held that the 1998 NOD did not confer upon the

Board jurisdiction to review the 1971 RO decision. Because Atkins had not raised any

other challenges on appeal, the Veterans Court affirmed the Board’s decision that no

basis existed for an effective date prior to 1993.

       Atkins now appeals the Veterans Court’s decision.

       1
             The Board also found that there had “been substantial compliance with the
assistance provisions set forth in the law and regulations.”
2008-7043                                    2
                                             II

       Our review of a decision of the Veterans Court is limited. We have jurisdiction to

review a Veterans Court decision with respect to the validity or interpretation of any

statute or regulation relied on by that court in making that decision or with respect to the

validity of the decision on a rule of law. See 38 U.S.C. § 7292(a). We also may not

review a challenge to a factual determination or a challenge to a law or regulation as

applied to the facts of a particular case unless a constitutional issue is presented.

38 U.S.C. § 7292(d)(2).

       Atkins raises two issues on appeal: 1) the Veterans Court failed to order the VA

to apply the Veterans Claims Assistance Act (“VCAA”); and 2) there were records

missing from Atkins’ file, including “a psychiatric exam conducted on the veteran right

after his service connected injury.”

       The issue of whether the VCAA was properly applied was not raised during

Atkins’ appeal to the Veterans Court, where Atkins was represented by counsel.

Accordingly, this argument is deemed waived.          See Cedar Lumber, Inc. v. United

States, 857 F.2d 765, 767 (Fed. Cir. 1988) (stating the general rule that arguments not

presented to the trial court are deemed waived on appeal). Even if this issue were not

waived, we would not be able to decide the issue, as Atkins does not argue that the

VCAA is invalid or was misinterpreted.            Rather, Atkins’ argument involves the

application of a regulation or law to the facts of a particular case, an issue outside our

jurisdiction.

       Atkins next asserts that there are records missing from his file which would

support his claim that an NOD was filed in 1971. This issue, like the VCAA issue, was



2008-7043                                    3
not raised before the Veterans Court. Accordingly, it is deemed waived. Even if the

issue of the existence of missing documents were not waived, we would lack

jurisdiction, because whether records are missing from a VA file is a factual issue.

      Finally, contrary to Atkins’ assertions, the Veterans Court did not decide a

constitutional issue. As explained above, the sole issue decided by the Veterans Court

was whether the Board should have found that the time for filing an NOD as to the 1971

RO decision was equitably tolled.




2008-7043                                   4
