                       NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit

                                        2007-7192


                                  RICHARD W. EVANS,

                                                             Claimant-Appellant,

                                            v.


             GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

                                                             Respondent-Appellee.

      Richard W. Evans, of Apex, North Carolina, pro se.

       Maame A.F. Ewusi-Mensah, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
her on the brief were Peter D. Keisler, Acting 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 Jamie L. Mueller, Attorney, United
States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Ronald M. Holdaway
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                     2007-7192

                                RICHARD W. EVANS,
                                                           Claimant-Appellant,

                                          v.

           GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

                                                          Respondent-Appellee.


                            _______________________

                            DECIDED: December 4, 2007
                            _______________________


Before LOURIE, BRYSON and MOORE, Circuit Judges.

PER CURIAM.

      Mr. Richard W. Evans appeals the final decision of the Court of Appeals for

Veterans Claims (Veterans Court) affirming the Board of Veteran’s Appeals’ (BVA’s)

determination that Evans had not established entitlement for post-traumatic stress

disorder (PTSD) earlier than the date he filed his claim for benefits. See Evans v.

Nicholson, No. 05-3372, 2007 WL 878438 (Vet. App. Mar. 20, 2007). We affirm.

                                   BACKGROUND

      Evans served in the Army between February 1969 and December 1971. His

service included a tour of duty in Vietnam. Evans met with a doctor in October 2003

and was diagnosed with depression and PTSD, both of which were attributable to his

service. During this examination, Evans informed the doctor that his symptoms had

existed since 1971.
      On May 21, 2003, Evans filed a claim for veteran’s benefits for his service-

connected PTSD. Benefits were awarded effective as of that date. In October 2003,

Evans filed a claim to have his rating increased from 30% to 100% disabling. That

claim was granted and his rating was increased.

      Evans believed that he was entitled to an effective date earlier than the May 21,

2003 filing date of his original claim for benefits. Evans contended that he was entitled

to an effective date of May 21, 2002 under 38 U.S.C. § 5110(g). He argued that the

addition of PTSD to the rating schedule on April 11, 1980 constituted a liberalizing act

that granted him entitlement to compensation. He maintained this position before the

BVA and the Veterans Court. Both tribunals concluded that Evans had not established

that he met all of the requirements for entitlement to benefits as of the April 11, 1980

effective date under the applicable regulation, 38 C.F.R. § 3.114(a).

      Evans appeals this determination. We have jurisdiction under 38 U.S.C. § 7292.

                                      DISCUSSION

      The effective date for an award based on an original claim “shall not be earlier

than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). Section 5110(g)

provides for an exception to this otherwise general rule. That section provides:

      Subject to the provisions of section 5101 of this title, where compensation
      . . . is awarded . . . pursuant to . . . administrative issue, the effective date
      of such award or increase shall be fixed in accordance with the facts found
      but shall not be earlier than the effective date of the Act of administrative
      issue. In no event shall such award or increase be retroactive for more
      than one year from the date of application therefor or the date of
      administrative determination of entitlement, whichever is earlier.

38 U.S.C. § 5110(g) (emphasis added). The Secretary has promulgated a regulation,

found at 38 C.F.R. § 3.114(a), to implement this provision:




2007-7192                                    2
       Where . . . compensation . . . is awarded . . . pursuant to . . . a liberalizing
       VA issue approved by the Secretary or by the Secretary’s direction, the
       effective date of such award of increase shall be fixed in accordance with
       the facts found, but shall not be earlier than the effective date of the . . .
       administrative issue. Where . . . compensation . . . is awarded . . .
       pursuant to a liberalizing . . . VA issue which became effective on or after
       the date of its enactment or issuance, in order for a claimant to be eligible
       for a retroactive payment under the provisions of this paragraph, the
       evidence must show that the claimant met all eligibility criteria for the
       liberalized benefit on the effective date of the . . . VA issue and that such
       eligibility existed continuously from that date to the date of claim or
       administrative determination of entitlement.

38 C.F.R. § 3.114(a).

       Here, the BVA concluded that Evans had not established that he “met all

eligibility criteria for the liberalized benefit on the effective date of the . . . VA issue.”

Evans challenges the validity of 38 C.F.R. § 3.114(a).                     Evans contends

§ 3.114(a) is contrary to § 5110(g). Specifically, Evans argues that under the statute he

was entitled to retroactive compensation because the facts established that he has

suffered symptoms of PTSD since 1971 and that the regulation is improper because it

effectively requires him to prove that he had PTSD “before PTSD existed.”

       Review of factual issues are beyond our limited jurisdiction.         See 38 U.S.C.

§ 7292(d)(2) (“Except to the extent that an appeal under this chapter presents a

constitutional issue, the Court of Appeals 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.”).   Therefore, we are without the power to review the record to

determine whether Evans can establish that he has continuously suffered from PTSD

since April 11, 1980, the date PTSD was added to the rating schedule. 1



       1
             We reject Evans’ argument that the regulation requires him to establish
that he had PTSD before it existed. Evans had to establish that he exhibited symptoms


2007-7192                                     3
       We can, however, review Evans’ challenge to the validity of § 3.114(a). See 38

U.S.C. § 7292(d)(1).     We interpret statutes and regulations de novo.           See, e.g.,

Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir. 2007); McCay v. Brown, 106

F.3d 1577, 1579 (Fed. Cir. 1997).

       We conclude that the requirement that a claimant show that they “met all

eligibility criteria for the liberalized benefit on the effective date of the . . . VA issue”

contained in 38 C.F.R. § 3.114 is consistent with § 5110(g). By its plain terms, section

5110(g) permits a retroactive award of benefits, not to exceed one year, when

compensation is awarded because of an administrative issue.              The implementing

regulation includes this same requirement. For an administrative pronouncement to

award benefits, the claimant must have been eligible to receive benefits at the time of

the liberalizing act, thus making the liberalizing act (and not some other occurrence) the

reason the claimant was eligible for compensation. In this regard, § 3.114 is a valid

interpretation of § 5110(g). See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467

U.S. 837, 842-43 (1984). Moreover, we see nothing to the contrary in the case of

McCay v. Brown, 9 Vet. App. 183 (1996), which addresses § 3.114(a) solely in the

context of a retroactive liberalizing act. Therefore, the judgment of the Veterans Court

is affirmed.




consistent with a diagnosis of PTSD at the time of the liberalizing act, not that he was in
fact diagnosed with PTSD at the time of the liberalizing act.


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