Clegg v. Collins

• Court: Court of Appeals for the Federal Circuit
• Decided: December 3, 2025
• Docket: 25-1220
• Status: Unpublished

Opinion

Case: 25-1220 Document: 23 Page: 1 Filed: 12/03/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ELBERT L. CLEGG, Claimant-Appellant

v.

DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2025-1220 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 23-446, Judge Coral Wong Pietsch. ______________________

Decided: December 3, 2025 ______________________

ELBERT L. CLEGG, Malvern, AK, pro se.

ANNE DELMARE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent-appellee. Also represented by ERIC P. BRUSKIN, PATRICIA M. MCCARTHY, BRETT SHUMATE; BRIAN D. GRIFFIN, CHRISTOPHER O. ADELOYE, Office of Gen- eral Counsel, United States Department of Veterans Af- fairs, Washington, DC. ______________________ Case: 25-1220 Document: 23 Page: 2 Filed: 12/03/2025

Before PROST, TARANTO, and HUGHES, Circuit Judges. PER CURIAM. Elbert L. Clegg appeals a decision of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) denying an earlier effective date for his service-connection claim. Clegg v. McDonough, No. 23-0446, 2024 WL 2880228 (Vet. App. June 7, 2024) (“Decision”). For the reasons below, we dismiss. BACKGROUND Mr. Clegg served on active duty in the U.S. Marine Corps from 1969 to 1971. In December 2006, he filed a ser- vice-connection claim with the Department of Veterans Af- fairs (“VA”) for various conditions, including shortness of breath, alleging exposure to Agent Orange during his ser- vice in Vietnam. A VA regional office (“RO”) denied his claim. In June 2008, Mr. Clegg underwent a stress test that ruled out evidence of ischemia. Subsequently, Mr. Clegg filed a service-connection claim for hypertension. The RO denied his hypertension claim in November 2008. In October 2010, Mr. Clegg filed an additional claim seek- ing benefits for ischemic heart disease (“IHD”) as a condi- tion related to his Agent Orange exposure. In 2011, he underwent a medical exam which concluded that he did not have IHD. The RO denied Mr. Clegg’s IHD claim. Mr. Clegg appealed to the Board of Veterans’ Appeals (“Board”). The Board denied his appeal, finding that he did not have a current IHD diagnosis. Decision, 2024 WL 2880228, at *2. Mr. Clegg did not appeal the Board’s decision, and it became final. In April 2016, Mr. Clegg sought to reopen his IHD claim but the RO declined to do so because Mr. Clegg had not submitted new and material evidence. Mr. Clegg sought review of the RO’s decision. In September 2017, Mr. Clegg underwent a cardiology assessment which Case: 25-1220 Document: 23 Page: 3 Filed: 12/03/2025

CLEGG v. COLLINS 3

determined that he was ischemic at the time of that exam- ination. The RO granted Mr. Clegg’s IHD claim with a 100% disability rating effective September 17, 2017, the date of his IHD diagnosis. The RO noted that “[a]lthough not shown in service, service connection for [IHD] . . . has been granted on the basis of presumption due to Agent Or- ange exposure.” S.A. 22.1 Mr. Clegg filed a supplemental claim seeking an earlier effective date, citing Nehmer, a class action case involving Vietnam veterans who may be entitled to benefits related to Agent Orange exposure. See Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 1404 (N.D. Cal. 1989). The RO denied Mr. Clegg’s claim for an earlier effective date, and he appealed to the Board. The Board denied Mr. Clegg’s claim for an earlier effec- tive date, concluding that Nehmer did not entitle him to an earlier effective date. The Board explained that under 38 C.F.R. § 3.816, the VA’s regulation implementing the Nehmer decision, IHD was added to the list of disabilities presumed to be caused by in-service exposure to Agent Or- ange with an effective date of August 31, 2010. The Board noted that Mr. Clegg’s IHD claim was, however, not sub- mitted until October 2010, and thus fell under § 3.816(c)(4), which requires the effective date to be determined under §§ 3.114 and 3.400. The Board found that Mr. Clegg was not diagnosed with IHD until September 2017; thus, under § 3.400, an effective date prior to September 2017 was not warranted. Mr. Clegg appealed to the Veterans Court, arguing that Nehmer required the VA to award him an earlier ef- fective date and that the VA failed to consider that his symptoms existed earlier. He further argued that the Board failed to satisfy the duty to assist because the RO

1 “S.A.” refers to the supplemental appendix in- cluded with the government’s informal brief. Case: 25-1220 Document: 23 Page: 4 Filed: 12/03/2025

should have obtained a cardiologist’s medical review of his earlier symptoms. The Veterans Court upheld the Board’s decision. It agreed with the Board that although Mr. Clegg is a Nehmer class member, he was not entitled to an earlier effective date under § 3.816(c)(1) or (c)(2) because he filed his IHD claim after the date IHD was added to the list of presumptive conditions. The Veterans Court rejected Mr. Clegg’s argument that his 2006 claim and prior state- ments regarding several conditions, including hyperten- sion, could reasonably be construed as informal claims for IHD benefits. The court noted that the Board found “the first mention of heart disease was in Mr. Clegg’s October 2010 claim.” Decision, 2024 WL 2880228, at *5. The Vet- erans Court thus affirmed the Board’s decision. The court granted Mr. Clegg’s motion for panel decision but ordered “that the single-judge memorandum decision remains the decision of the [Veterans] Court.” S.A. 11–12. Mr. Clegg timely appealed. Our jurisdiction over ap- peals from Veterans Court decisions is governed by 38 U.S.C. § 7292. DISCUSSION The scope of our review in an appeal from a Veterans Court decision is limited. We may review a Veterans Court decision on a rule of law or the validity or interpretation of any statue or regulation relied on by the Veterans Court in making the decision. 38 U.S.C. § 7292(a). Except with re- spect to constitutional issues, we “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.” Id. § 7292(d)(2). “[W]e review the Veterans Court’s legal determinations de novo.” Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014). We “hold unlawful and set aside any regulation or any interpretation thereof . . . that was relied upon” in the Veterans Court’s decision and that we find to be “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; Case: 25-1220 Document: 23 Page: 5 Filed: 12/03/2025

CLEGG v. COLLINS 5

(B) contrary to constitutional right, power, privilege, or im- munity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) with- out observance of procedure required by law.” 38 U.S.C. § 7292(d)(1). On appeal, Mr. Clegg challenges the Veterans Court’s decision denying an earlier effective date for his service- connection claim. Appellant’s Informal Br. 3. Mr. Clegg’s appeal, however, falls outside our limited jurisdiction over appeals from a Veterans Court decision. First, the Veterans Court’s decision did not involve the va- lidity or interpretation of any statute or regulation. In- stead, the Veterans Court affirmed the Board’s application of the regulatory text used to determine the effective date for Nehmer awards to the facts of Mr. Clegg’s case. Deci- sion, 2024 WL 2880228, at *4–5. Mr. Clegg argues that the Veterans Court’s decision involved the validity or interpre- tation of a statute or regulation. Appellant’s Informal Br. 1. He appears to contend that 38 C.F.R. § 21.1032 was not applied to his claims and that he underwent a medical exam in 2011 but was not awarded benefits for IHD until 2017. Id. Mr. Clegg’s apparent argument about a medical exam that establishes his right to an earlier effective date is a factual challenge that does not fall within our jurisdic- tion. See 38 U.S.C. § 7292(d)(2). To the extent Mr. Clegg’s argument is an assertion that the Veterans Court failed to apply § 21.1032, that regulation pertains to a duty to assist in claims for educational assistance and is not applicable to Mr. Clegg’s disability compensation claim. Even if Mr. Clegg meant to refer to a regulation regarding the duty to assist in compensation claims, whether the VA has sat- isfied its duty to assist is generally a question of fact out- side our jurisdiction. See Jones v. Wilkie, 918 F.3d 922, 925 (Fed. Cir. 2019) (“The completeness of the record presents a question of fact outside of this court’s jurisdiction.”); De- LaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (“The Board made a factual finding that a medical opinion was Case: 25-1220 Document: 23 Page: 6 Filed: 12/03/2025

not necessary to decide the claim under [the duty to as- sist].”). Mr. Clegg’s remaining arguments regarding the pur- ported validity or interpretation of regulations also fail. He argues that the Veterans Court failed to apply 38 C.F.R. § 3.309. Appellant’s Informal Br. 1. He elaborates, regard- ing other issues, that had the Veterans Court applied § 3.309, his October 2010 claim would have been granted in 2011 after he underwent medical exams and exposure to Agent Orange was acknowledged. Id. at 2. Section 3.309 provides a list of diseases subject to presumptive service connection. See 38 C.F.R. § 3.309. The Veterans Court noted that the Board acknowledged “Mr. Clegg was awarded benefits for IHD on a presumptive basis based on exposure to herbicide agents in Vietnam.” Decision, 2024 WL 2880228, at *4. Absent a constitutional issue, we do not have jurisdiction to review the Board’s application of law to facts. This argument, therefore, does not raise any issue within our jurisdiction involving the validity or inter- pretation of any statute or regulation. To the extent that Mr. Clegg argues that Nehmer was misapplied to the facts of his case, we also do not have jurisdiction to review that application of law to facts. See Singleton v. Shinseki, 659 F.3d 1332, 1334 (Fed. Cir. 2011) (“This court may not re- view the Veterans Court’s factual findings or its applica- tion of law to facts absent a constitutional issue.”). Second, the Veterans Court did not purport to decide any constitutional issues. Mr. Clegg’s allegation of a con- stitutional issue does not identify any such issue but rather presents arguments about medical evidence. Specifically, he appears to argue that the VA failed to diagnose his IHD prior to 2017 but diagnosed it in 2017 although he under- went the same medical exam prior to 2017 as he did in 2017. Appellant’s Informal Br. 2. Characterization of an issue “as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.” Flores v. Nicholson, Case: 25-1220 Document: 23 Page: 7 Filed: 12/03/2025

CLEGG v. COLLINS 7

476 F.3d 1379, 1382 (Fed. Cir. 2007) (quoting Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)). Thus, Mr. Clegg’s appeal does not challenge the valid- ity or interpretation of any statute or regulation, nor does his appeal raise any genuine constitutional issue that could form the basis for our jurisdiction. Accordingly, we dismiss. CONCLUSION We have considered Mr. Clegg’s remaining arguments and find them unpersuasive. For the foregoing reasons, we dismiss. DISMISSED COSTS No costs.