Case: 20-1262    Document: 21     Page: 1   Filed: 06/02/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

            SYLVESTER D. CHATMAN, SR.,
                 Claimant-Appellant

                             v.

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

                        2020-1262
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-6731, Judge William S. Green-
 berg.
                 ______________________

                   Decided: June 2, 2020
                  ______________________

    SYLVESTER D. CHATMAN, SR., Spokane, WA, pro se.

     ERIN MURDOCK-PARK, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 JOSEPH H. HUNT, TARA K. HOGAN, ROBERT EDWARD
 KIRSCHMAN, JR.; MARTIE ADELMAN, Y. KEN LEE, Office of
 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
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 2                                           CHATMAN   v. WILKIE



                   ______________________

     Before DYK, CLEVENGER, and HUGHES, Circuit Judges.
 CLEVENGER, Circuit Judge.
     Mr. Chatman appeals the decision of the United States
 Court of Appeals for Veterans Claims (the “Veterans
 Court”) in Chatman v. Wilkie, No. 18-6731, 2019 WL
 4061968 (Vet. App. Aug. 29, 2019), that affirmed an Octo-
 ber 25, 2018 decision of the Board of Veterans Appeals (the
 “Board”) (1) denying an effective date earlier than Novem-
 ber 8, 2014 for a 20% rating for residuals of a medial me-
 niscus tear, and (2) remanding a portion of the Board’s
 decision that denied an earlier effective date for a noncom-
 pensable rating for limitation of extension of the right knee
 as well as a 10% rating for limitation of flexion of the right
 knee. For the reasons set forth below, we affirm.
                        BACKGROUND
     Mr. Chatman served on active duty in the U.S. Air
 Force from October 1975 to July 1998 as an aircraft sys-
 tems superintendent. In March 1998, Mr. Chatman re-
 ceived right knee surgery to repair a meniscal tear. VA
 granted service connection for residuals of a right knee me-
 niscal tear effective August 1, 1998—the day following Mr.
 Chatman’s date of discharge or release—because the appli-
 cation was received within one year. See 38 U.S.C. §
 5110(b)(1). This disability was rated at 10% for “slight lat-
 eral collateral laxity” of the right knee under Diagnostic
 Code (DC) 5257. Mr. Chatman was informed of this deci-
 sion, and his appellate rights, in a January 25, 1999 letter.
     In February 2007, Mr. Chatman had a partial right
 knee medial meniscectomy. The surgery was not com-
 pleted at a VA facility or by a VA doctor. Surgical records
 were not forwarded to the VA Regional Office at the time
 of the operation, or at any time prior to his claim for an
 increased disability rating.
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 CHATMAN   v. WILKIE                                         3



      Mr. Chatman filed his claim for an increased disability
 rating on November 8, 2014. He submitted with his claim
 a private physician’s disability benefits questionnaire
 (DBQ) that documented his 2007 surgery and noted a his-
 tory of knee instability. Following his claim, a VA regional
 office increased Mr. Chatman’s disability rating under DC
 5257 to 20%, based on moderate lateral instability of the
 right knee, and effective retroactively to the November 8,
 2014 filing date. The Regional Office also awarded a 10%
 rating for limitation of flexion under DC 5260, and a non-
 compensable rating for limitation of extension under DC
 5261, both effective November 8, 2014.
      Mr. Chatman disagreed with both the assigned disabil-
 ity ratings and the effective date for his knee condition, and
 filed a Notice of Disagreement in November 2015. The Re-
 gional Office denied the Notice of Disagreement in a State-
 ment of the Case, and Mr. Chatman perfected an appeal for
 “retroactive effective date – right knee surgery (February
 2007).” Chatman, No. 18-6731, 2019 WL 4061968, at *2.
      The Board denied Mr. Chatman’s appeal. Specifically,
 the Board found that neither the private physician’s DBQ
 nor any other evidence of record provided a basis on which
 it could ascertain an increase in Mr. Chatman’s knee insta-
 bility during the year prior to the date of receipt of the
 claim—November 8, 2014. The Board also denied the por-
 tion of Mr. Chatman’s claim related to an earlier effective
 date for his DC 5260 claim (10% rating for limitation of
 flexion of the right knee) and his DC 5261 claim (noncom-
 pensable rating for limitation of extension of the right
 knee) without considering whether Mr. Chatman was enti-
 tled to an earlier effective date for those claims pursuant
 to 38 U.S.C. § 5110(b)(2).
     Mr. Chatman appealed three parts of the Board’s deci-
 sion to the Veterans Court: “(1) a 20% disability rating for
 residuals of an in-service medical meniscus tear[;] (2) a
 noncompensable rating for limitation of extension of the
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 4                                          CHATMAN   v. WILKIE



 right knee; and (3) a 10% disability rating for a limitation
 of flexion of the right knee.” Chatman, No. 18-6731, 2019
 WL 4061968, at *1.
      In an August 29, 2019, decision, the Veterans Court af-
 firmed in part and remanded in part Mr. Chatman’s
 claims. First, the Veterans Court affirmed the Board’s de-
 cision with respect to Mr. Chatman’s claim for an earlier
 effective date for the 20% disability rating under DC 5257.
 The Veterans Court found that Mr. Chatman was awarded
 a 20% disability rating based on knee instability, not on
 knee surgery, and that the “Board correctly found that
 there was no evidence of an ascertainable increase in [Mr.
 Chatman’s] . . . lateral knee instability in the year before
 November 8, 2014.” Id. at *2. Second, the Veterans Court
 remanded to the Board Mr. Chatman’s DC 5260 and DC
 5261 claims. It found that the Board “erred in failing to
 seek clarification of the issues that [Mr. Chatman] wished
 to appeal in his Substantive Appeal under 38 C.F.R. §
 20.101(d) (2018).” Id. at *3. Further, considering VA’s con-
 cession that the Board failed to consider whether Mr. Chat-
 man was entitled to an effective date pursuant to 38 U.S.C.
 § 5110(b)(2) for the disability ratings under DCs 5260 and
 5261, the Veterans Court also remanded for re-adjudica-
 tion. Id.
     This appeal followed.
                    STANDARD OF REVIEW
      This court’s review of Veterans Court decisions is
 strictly limited by statute. Unless an appeal presents a
 constitutional issue, we may not review challenges to fac-
 tual determinations or challenges to a law or regulation as
 applied to the facts of a particular case. 38 U.S.C. §
 7292(d)(2). We may review whether the Veterans Court
 failed to consider a controlling rule of law in reaching its
 decision. 38 U.S.C. § 7292(a). We may also review the
 proper interpretation of a regulation. Massie v. Shinseki,
 724 F.3d 1325, 1327 (Fed. Cir. 2013). We review a claim of
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 CHATMAN   v. WILKIE                                          5



 legal error in the decision of the Court of Appeals for Vet-
 erans Claims without deference. See Moody v. Principi,
 360 F.3d 1306, 1310 (Fed. Cir. 2004).
                          DISCUSSION
     Under 38 U.S.C. § 5110(a), the effective date of an in-
 crease in a veteran’s disability compensation “shall be fixed
 in accordance with the facts found, but shall not be earlier
 than the date of receipt of application therefor.” 38 U.S.C.
 §5110(b)(3) provides an exception to this general rule: “The
 effective date of an award of increased compensation shall
 be the earliest date as of which it is ascertainable that an
 increase in disability had occurred, if application is re-
 ceived within one year from such date.” In accordance with
 this subsection, VA has promulgated 38 C.F.R. §
 3.400(o)(2), which states that the effective date of any in-
 crease in disability compensation will be the “[e]arliest
 date as of which it is factually ascertainable that an in-
 crease in disability had occurred if [the] claim . . . is re-
 ceived within 1 year from such date”; otherwise, the
 effective date of the increase is the “date of receipt of [the]
 claim.” See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir.
 2010).
     Relying on § 3.400(o)(2), the Board found that neither
 Mr. Chatman’s private physician’s DBQ nor any other evi-
 dence of record provided a basis on which it could ascertain
 an increase in Mr. Chatman’s knee instability during the
 year prior to the date of receipt of the claim. The Veterans
 Court affirmed, holding that the “Board correctly found
 that there was no evidence of an ascertainable increase in
 [Mr. Chatman’s] . . . lateral knee instability in the year be-
 fore November 8, 2014.” Chatman, No. 18-6731, 2019 WL
 4061968, at *2.
     On appeal, Mr. Chatman alleges, among other things,
 that: (1) the Board and Veterans Court failed to comply
 with 38 U.S.C. §5110(b)(3); and (2) 38 C.F.R. § 3.400(o)(2)
 conflicts with federal law. See Appellant’s Informal Reply
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 6                                            CHATMAN   v. WILKIE



 Br. at 4 (“The appeal before this court is specifically focused
 on complying with U.S. federal statutes and our U.S. rules
 of law.”); see also Appellant’s Informal Br. at 1 (“VA regu-
 latory guidelines, 38 C.F.R. § 3400(o)(2), used for assigning
 effective dates to disabled veterans claims are inconsistent
 with the literal rules of federal law. . . .”).
     First, according to Mr. Chatman, the Board’s and Vet-
 erans Court’s decisions are “inconsistent with . . . 38 U.S.C.
 §5110(b)(3),” because §5110(b)(3) “does not state a vet-
 eran’s increased disability claim must be ascertainable ‘in
 the year before’ nor does the statute state the appellant’s
 increased disability must be ‘during a one-year period pre-
 ceding’ appellant’s submission of his application for in-
 creased disabilities.” Appellant’s Informal Reply Br. at 3
 (emphases omitted). As this court held in May 2010, how-
 ever, “[i]t is clear from the plain language of 38 U.S.C. §
 5110(b)(2),” now codified as 38 U.S.C. § 5110(b)(3), 1 “that it
 only permits an earlier effective date for increased disabil-
 ity compensation if that disability increased during the
 one-year period before the filing of the claim.” Gaston, 605
 F.3d at 983. Thus, we hold that the Veterans Court did not
 err in construing 38 U.S.C. §5110(b)(3) when it found that
 Mr. Chatman is not entitled to an effective date earlier
 than November 8, 2014 for a 20% rating for residuals of a
 medial meniscus tear. Accordingly, that holding of the Vet-
 erans Court is affirmed.
      Second, with respect to Mr. Chatman’s argument
 that 38 C.F.R. § 3.400(o)(2), relied upon by the Board, con-
 flicts with 38 U.S.C. §5110(b)(3), this court has also held
 that both § 5110(b)(2) (2010), now § 5110(b)(3), and its im-
 plementing regulation, § 3.400(o)(2), require that an in-
 crease in a veteran’s service-connected disability must
 have occurred during the one year prior to the date of the


     1   An August 2012 amendment to 38 U.S.C. § 5110 re-
 codified § 5110(b)(2) as § 5110(b)(3).
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 CHATMAN   v. WILKIE                                          7



 veteran’s claim in order to receive the benefit of an earlier
 effective date. See Gaston, 605 F.3d at 984. Accordingly,
 we hold that § 3.400(o)(2) is not in conflict with federal law.
 See 38 U.S.C. § 7292(d)(1).
     We have carefully reviewed the remainder of Mr. Chat-
 man’s arguments. To the extent he challenges the Board’s
 and Veterans Court’s factual determinations, see Appel-
 lant’s Informal Reply Br. at 5–7, 11–13, such arguments
 fall outside of this court’s jurisdiction. 38 U.S.C. §
 7292(d)(2). To the extent he argues issues currently on re-
 mand to the Board, such arguments are not final and not
 reviewable. See Ebel v. Shinseki, 673 F.3d 1337, 1340 (Fed.
 Cir. 2012) (“[W]e generally do not review the Veterans
 Court’s remand orders because they are not final deci-
 sions.”); Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir.
 2006) (same).
     For the foregoing reasons, the Veterans Court’s hold-
 ings are
                         AFFIRMED
                             COSTS
     The parties shall bear their own costs.
