Case: 19-2421    Document: 24     Page: 1   Filed: 03/23/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                 NORMAN A. HARRIS,
                  Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2019-2421
                  ______________________

      Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-3923, Chief Judge Robert N. Da-
 vis.
                  ______________________

                 Decided: March 23, 2020
                 ______________________

    NORMAN A. HARRIS, Greenville, IN, pro se.

     ANTONIA RAMOS SOARES, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent-appellee. Also repre-
 sented by JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD,
 ROBERT EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK
 SCADDEN, Office of General Counsel, United States Depart-
 ment of Veterans Affairs, Washington, DC.
Case: 19-2421     Document: 24     Page: 2    Filed: 03/23/2020




 2                                            HARRIS v. WILKIE




                   ______________________

     Before WALLACH, PLAGER, and STOLL, Circuit Judges.
 PER CURIAM.
     Appellant Norman A. Harris appeals a decision of the
 U.S. Court of Appeals for Veterans Claims (“Veterans
 Court”), affirming the Board of Veterans’ Appeals’
 (“Board”) denial of entitlement to an effective date before
 July 29, 2002, for the award of service-connected disability
 benefits for Mr. Harris’s skin condition. Harris v. Wilkie,
 No. 17-3923, 2019 WL 1995773, at *3–4 (Vet. App. May 7,
 2019). Because we lack jurisdiction, we dismiss.
                         DISCUSSION
          I. Standard of Review and Legal Standard
     “The jurisdiction of this court to review decisions of the
 Veterans Court is limited by statute.” Gazelle v. Shulkin,
 868 F.3d 1006, 1009 (Fed. Cir. 2017) (citation omitted). We
 may “review and decide any challenge to the validity of any
 statute or regulation or any interpretation thereof . . .
 and . . . interpret constitutional and statutory provisions,
 to the extent presented and necessary to a decision.”
 38 U.S.C. § 7292(c) (2012). Absent a constitutional issue,
 however, we lack subject matter jurisdiction over “(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.” Id. § 7292(d)(2); see Wanless v. Shinseki, 618 F.3d
 1333, 1336 (Fed. Cir. 2010).
      II. We Lack Jurisdiction over Mr. Harris’s Appeal
     Mr. Harris’s appeal involves neither the interpretation
 of a statute or regulation nor a constitutional issue; in-
 stead, Mr. Harris raises only issues of fact that we may not
 review. See generally Appellant’s Br. First, Mr. Harris
 contends that “[t]he Board refused to grant service connec-
 tion benefits for his diagnosed skin condition[] effective to
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 HARRIS v. WILKIE                                             3



 1985 by attempting to discredit [his] evidence[.]” Id. at 3.
 Mr. Harris, a U.S. Army veteran who served in Vietnam,
 A. App. 87, 1 “suffers from a service-connected skin condi-
 tion, characterized as contact dermatitis and a latex al-
 lergy,” Harris, 2019 WL 1995773, at *1. On January 24,
 1985, a U.S. Department of Veterans Affairs (“VA”) medi-
 cal examiner diagnosed Mr. Harris with “[m]aculopapular
 exfoliative dermatitis . . . highly suggestive of contact der-
 matitis, with a history of allergy to rubber and new plas-
 tics . . . , but not related to Agent Orange.” A. App. 87, 89–
 90. 2 In 2001, however, a different VA medical examiner
 concluded that “Mr. Harris’s skin condition resulted from
 exposure to Agent Orange.” Harris v. McDonald, No. 14-
 0649, 2015 WL 6087176, at *1 (Vet. App. Oct. 16, 2015).
 On July 29, 2002, the VA received a document “indicat[ing]
 that [Mr. Harris] wanted to claim service connection for
 [his] skin condition . . . as a result of Agent Orange expo-
 sure.” In re Harris, No. 07-16 417, slip op. at 12 (Bd. Vet.
 App. June 27, 2017). In 2006, the VA regional office
 granted Mr. Harris service connection for his skin condi-
 tion “with an evaluation of [ten] percent effective July 29,
 2002.” A. App. 92; see A. App. 92–94 (Rating Decision). Mr.
 Harris appealed to the Board, arguing that two forms com-
 pleted during his 1985 VA medical examination consti-
 tuted a claim for disability benefits, and thus, the effective
 date for his skin condition should be the date of that exam-
 ination, i.e., January 24, 1985. Harris, slip op. at 10; see A.
 App. 83–91 (1985 Medical Examination Forms). In the de-
 cision from which Mr. Harris currently appeals, the Board
 found, and the Veterans Court affirmed, that “neither
 [form] constitute[d]” a claim for disability benefits, Harris,


     1   “A. App.” refers to the Appellee Secretary of Veter-
 ans Affairs’ Appendix attached to the response brief.
     2   Agent Orange is an “herbicide agent” used during
 the Vietnam War. Procopio v. Wilkie, 913 F.3d 1371, 1373
 (Fed. Cir. 2019) (en banc).
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 4                                             HARRIS v. WILKIE




 slip op. at 12, and thus, Mr. Harris was not “[e]ntitle[d] to
 an effective date prior to July 29, 2002[,]” id. at 21. To the
 extent Mr. Harris seeks review of this finding, it is a factual
 determination that cannot be disturbed by this court. See
 38 U.S.C. § 7292(d)(2)(A); see also Ellington v. Peake, 541
 F.3d 1364, 1371 (Fed. Cir. 2008) (holding that “we lack ju-
 risdiction to consider [the veteran’s] claim for entitlement”
 to an earlier effective date for his service-connected medi-
 cal conditions, as “the interpretation of the contents of a
 claim for benefits [i]s a factual issue over which we d[o] not
 have jurisdiction”).
     Second, Mr. Harris contends that the Veterans Court
 erred in affirming the Board’s reliance on Ellington. See
 generally Appellant’s Br. Specifically, Mr. Harris argues
 that, by relying on Ellington, the Board misapplied the
 “standards” set forth in Moody v. Principi, 360 F.3d 1306
 (Fed. Cir. 2004), Szemraj v. Principi, 357 F.3d 1370 (Fed.
 Cir. 2004), and Roberson v. Principi, 251 F.3d 1378 (Fed.
 Cir. 2001), Appellant’s Br. 5–6, which require the VA to
 “fully and sympathetically develop the veteran’s claim to
 its optimum before deciding it on its merits[,]” Roberson,
 251 F.3d at 1383 (internal quotation marks and citation
 omitted). As with the veteran in Ellington, however,
 Mr. Harris “[can]not argue that the Veterans Court failed
 to consider or misinterpreted Moody, Szemraj, or Rob-
 erson[,]” as the Veterans Court “explicitly acknowledged
 [the] obligation to sympathetically read Mr. [Harris’s]
 claims in light of [those cases].” Ellington, 541 F.3d at 1372
 (internal quotation marks omitted); see Harris, 2019 WL
 1995773, at *3 (explaining that the Board’s findings were
 based on a “sympathetic or liberal reading” of the evi-
 dence); Harris, 2015 WL 6087176, at *4 (remanding to the
 Board for consideration of the evidence in light of Moody,
 Szemraj, and Roberson). Rather, Mr. Harris essentially ar-
 gues that the Veterans Court erred in concluding that the
 Board satisfied its duty to sympathetically construe his
 claim when it concluded that his 1985 medical examination
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 HARRIS v. WILKIE                                              5



 forms did not raise an informal claim for disability benefits,
 see, e.g., Appellant’s Br. 5–7, “a matter over which we lack
 jurisdiction,” as it “implicate[s] the application of law to
 fact,” Ellington, 541 F.3d at 1372; see 38 U.S.C.
 § 7292(d)(2)(B).
      Finally, Mr. Harris broadly alleges “violation[s] of [his]
 Constitutional Rights for fair and impartial review,” Appel-
 lant’s Br. 11, and “due process of law,” id. at 7; see id. at 4,
 5. Mr. Harris’s arguments are, however, “constitutional in
 name only,” as “he has simply put a [constitutional] label
 on his contention” that the Veterans Court erred in affirm-
 ing the Board’s reliance on Ellington. Helfer v. West, 174
 F.3d 1332, 1335 (Fed. Cir. 1999); see Payne v. McDonald,
 587 F. App’x 649, 651 (Fed. Cir. 2014) (“Absent an expla-
 nation providing an adequate basis for [the veteran’s]
 claims, mere assertions of constitutional violations cannot
 invoke our jurisdiction.”). See, e.g., Appellant’s Br. 5 (“The
 Veterans Court ha[s] instead affirmed the Board[’s] review
 of the evidence of ‘that case[,’] Ellington, introduced by the
 Board, without the required standard of review for ‘preju-
 dicial error[,’] . . . violating [Mr. Harris’s] due process for
 fairness.”). Accordingly, we lack jurisdiction over Mr. Har-
 ris’s appeal.
                          CONCLUSION
     We do not have jurisdiction to review this appeal. Ac-
 cordingly, Mr. Harris’s appeal from the U.S. Court of Ap-
 peals for Veterans Claims is
                         DISMISSED
