Case: 19-2329    Document: 15    Page: 1   Filed: 02/11/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                 EXCELL R. WHITNEY,
                   Claimant-Appellant

                            v.

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

                       2019-2329
                 ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-3859, Judge Amanda L. Mere-
 dith.
                 ______________________

                Decided: February 11, 2020
                 ______________________

    EXCELL R. WHITNEY, Chicago, IL, pro se.

     IGOR HELMAN, Commercial Litigation Branch, Civil Di-
 vision, United States Department of Justice, Washington,
 DC, for respondent-appellee. Also represented by JOSEPH
 H. HUNT, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN,
 JR.; BRIAN D. GRIFFIN, EVAN SCOTT GRANT, Office of Gen-
 eral Counsel, United States Department of Veterans Af-
 fairs, Washington, DC.
Case: 19-2329      Document: 15    Page: 2     Filed: 02/11/2020




 2                                           WHITNEY v. WILKIE




                   ______________________

     Before NEWMAN, BRYSON, and REYNA, Circuit Judges.
 PER CURIAM.
     Excell Whitney, an Army veteran proceeding pro se,
 seeks an earlier effective date for his award of compensa-
 tion for migraine headaches, a back disability, and an an-
 kle disability. Whitney raises two issues on appeal. First,
 Whitney challenges the determination by the Court of Ap-
 peals for Veterans’ Claims that Whitney filed his migraine
 disability claim on October 5, 1990. Second, Whitney chal-
 lenges the Veterans Court’s determination that the “al-
 tered evidence” rule set forth in Cushman v. Shinseki, 576
 F.3d 1290, 1298–99 (Fed. Cir. 2009), does not apply to his
 case. Although we have jurisdiction to review certain con-
 stitutional and legal issues decided by the Veterans Court,
 we are statutorily prohibited from reviewing the court’s
 factual determinations or the court’s application of law to
 particular facts. 38 U.S.C. § 7292(d)(2). Both of the issues
 raised by Whitney involve factual findings or application of
 law to facts. We therefore lack jurisdiction to hear either
 of Whitney’s challenges, and we dismiss this appeal.
                        BACKGROUND
                A. Disability Compensation Claims
     Whitney served on active duty in the U.S. Army from
 1978 to 1980. In January 1981, Whitney filed service con-
 nection disability claims for a back disability, a right ankle
 disability, and seizures. 1 In August 1981, the Veterans Af-
 fairs Regional Office (“Regional Office”) denied disability
 compensation for Whitney’s claims.           Whitney never




      1  Whitney raised a number of other disability claims
 not relevant to this appeal.
Case: 19-2329    Document: 15      Page: 3    Filed: 02/11/2020




 WHITNEY v. WILKIE                                          3



 appealed the denial of these claims, rendering the August
 1981 decision final.
      On October 5, 1990, Whitney filed a request to “reopen
 or refile” his disability compensation claims for a back dis-
 ability, a right ankle disability, and migraine headaches.
 Between 1991 and 2014, the Regional Office and the Board
 of Veterans’ Appeals (“Board”) rendered a number of deci-
 sions that resulted in the Regional Office granting disabil-
 ity compensation for all three disabilities. The Regional
 Office determined that all three disabilities were entitled
 to an effective date of October 5, 1990—the date of Whit-
 ney’s refiled claims. Whitney appealed the Regional Of-
 fice’s determination to the Board, seeking an effective date
 of January 1981—the date of Whitney’s originally filed
 claims. The Board denied Whitney’s request for an earlier
 effective date, and Whitney appealed the Board’s decision
 to the Court of Appeals for Veterans’ Claims (“Veterans
 Court”).
                     B. Veterans Court
    The Veterans Court affirmed the Board’s denial of
 Whitney’s request for an earlier effective date.
     With respect to Whitney’s migraine headache claim,
 the Veterans Court found that Whitney never expressly or
 impliedly communicated his intent to file a claim for head-
 aches before October 5, 1990. The Veterans Court rejected
 Whitney’s argument that he had informally sought a ser-
 vice connection for headaches in January 1981. Whitney’s
 1981 claim for seizures, the Veterans Court explained, did
 not constitute an informal claim for headaches because “a
 seizure is not a headache.” J.A. 23. The Veterans Court
 further explained that the mention of headaches in Whit-
 ney’s 1981 VA medical records was not an informal claim
 for headaches because “evidence of a disability is not a
 claim.” J.A. 23.
Case: 19-2329     Document: 15      Page: 4     Filed: 02/11/2020




 4                                            WHITNEY v. WILKIE




     With respect to Whitney’s back and right ankle claims,
 the Veterans Court determined that Whitney’s 1981 claims
 had been finally adjudicated, and thus Whitney could not
 rely on those original claims as a basis for an earlier effec-
 tive date. The Veterans Court explained that the Regional
 Office’s 1981 denial of Whitney’s claims became final when
 Whitney failed to appeal those decisions. Whitney’s 1990
 back and right ankle claims were thus “claims to reopen”
 after a final adjudication and were thus only entitled to ef-
 fective dates as of his filing of the claims to reopen: October
 5, 1990.
     The Veterans Court rejected four other arguments
 raised by Whitney. Specifically, the Veterans Court deter-
 mined that: (i) the “unavailable records” exception in 38
 C.F.R. § 3.156(c)(3) did not apply to his case; (ii) the “new
 and material evidence” provisions of 38 C.F.R. § 3.400(q)
 did not apply to his case; (iii) the “altered evidence” rule set
 forth in Cushman, 576 F.3d at 1298–99, did not apply to
 his case; and (iv) the rule for waiving the timeliness re-
 quirement, as set forth in Percy v. Shinseki, 23 Vet. App.
 37, 45 (2009), did not apply to his case.
    The Veterans Court thus denied Whitney’s request for
 an effective date earlier than October 5, 1990. Whitney
 timely appealed.
                           ANALYSIS
     Our jurisdiction to review decisions by the Veterans
 Court is limited by 38 U.S.C. § 7292. We have jurisdiction
 “to review and decide any challenge to the validity of any
 statute or regulation or any interpretation thereof . . . and
 to interpret constitutional and statutory provisions, to the
 extent presented and necessary to a decision.” 38 U.S.C.
 § 7292(c) (2006). But we lack jurisdiction to “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,” unless those challenges present Constitutional is-
 sues. Id. § 7292(d)(2). While pro se pleadings are to be
Case: 19-2329     Document: 15      Page: 5    Filed: 02/11/2020




 WHITNEY v. WILKIE                                            5



 liberally construed, the pro se plaintiff must nonetheless
 establish jurisdiction. Reynolds v. Army & Air Force Exch.
 Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
     Whitney raises two challenges on appeal: (i) he chal-
 lenges the Veterans Court’s factual determination that
 Whitney first filed his migraine disability claim on October
 5, 1990; and (ii) he challenges the Veterans Court’s appli-
 cation of Cushman v. Shinseki to the facts of his case. We
 lack jurisdiction to consider either challenge.
      First, Whitney challenges the Veterans Court’s effec-
 tive date determination by asserting that, in 1981, he “pre-
 sented enough information to raise if not a formal
 claim . . . an informal claim for the [migraine] disability.”
 Appellant Br. 2. The factual determination of “when a dis-
 ability was claimed or service connection was established
 [is] not subject to our review.” Butler v. Shinseki, 603 F.3d
 922, 926 (Fed. Cir. 2010); see also Bonner v. Nicholson, 497
 F.3d 1323, 1328 (Fed. Cir. 2007). Likewise, the factual de-
 termination of whether a veteran sufficiently filed an infor-
 mal disability claim is not subject to our review. Ellington
 v. Peake, 541 F.3d 1364, 1371 (Fed. Cir. 2008). We there-
 fore lack jurisdiction to review Whitney’s first challenge.
     Second, Whitney challenges the Veterans Court’s de-
 termination that Cushman v. Shinseki, 576 F.3d at 1290,
 does not apply to the facts of his case. Appellant Br. 2 (stat-
 ing the second issue on appeal as “[w]hether the law in
 cushman v. stopping . . . extends to this veterans case”).
 We lack jurisdiction to review “a challenge to a law or reg-
 ulation as applied to the facts of a particular case.” 38
 U.S.C. § 7292(d)(2). To the extent Whitney’s brief can be
 liberally construed as challenging other aspects of the Vet-
 erans Court’s decision, we conclude that those arguments
 would also be as-applied legal challenges over which we
 lack jurisdiction. Id. We therefore lack jurisdiction to re-
 view Whitney’s second challenge.
Case: 19-2329    Document: 15      Page: 6     Filed: 02/11/2020




 6                                           WHITNEY v. WILKIE




                        CONCLUSION
     Whitney’s appeal challenges the Veterans Court’s fac-
 tual findings and the Veterans Court’s application of law to
 Whitney’s particular case. Under 38 U.S.C. § 7292(d)(2),
 we may not consider these challenges. We must therefore
 dismiss this appeal.
                       DISMISSED
                           COSTS
     No costs.
