Cook v. Collins

• Court: Court of Appeals for the Federal Circuit
• Decided: March 28, 2025
• Docket: 23-1562
• Status: Unpublished

Opinion

Case: 23-1562 Document: 46 Page: 1 Filed: 03/28/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

LEWIS C. COOK, Claimant-Appellant

v.

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

2023-1562 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 21-7993, Judge William S. Green- berg. ______________________

Decided: March 28, 2025 ______________________

CHRISTOPHER PAUL JETER, Massillamany Jeter & Car- son LLP, Fishers, IN, argued for claimant-appellant. Also represented by ROBERT W. LEGG, Law Office of Robert W. Legg, Arlington, VA.

BRITTNEY M. WELCH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA Case: 23-1562 Document: 46 Page: 2 Filed: 03/28/2025

M. MCCARTHY; CHRISTOPHER O. ADELOYE, CHRISTINA LYNN GREGG, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Before DYK, HUGHES, and CUNNINGHAM, Circuit Judges. CUNNINGHAM, Circuit Judge. Lewis C. Cook appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the decision of the Board of Veterans’ Ap- peals (“Board”), which denied Mr. Cook a disability rating increase and denied him a total disability rating based on individual unemployability (“TDIU”). Cook v. McDonough, No. 21-7993, 2022 WL 17324229 (Vet. App. Nov. 29, 2022) (“Decision”). For the reasons discussed below, we dismiss Mr. Cook’s appeal for lack of jurisdiction. I. BACKGROUND In 1975, Mr. Cook applied for disability benefits, seek- ing compensation or a disability pension for an eye injury he incurred while working at a Department of Veterans Af- fairs (“VA”) hospital. Decision at *2; J.A. 488–89. 1 The fol- lowing year, in 1976, a VA Regional Office (“RO”) assigned Mr. Cook a 60 percent disability rating based on a diagno- sis of “thyrotoxicosis with exophthalmos and nervous con- dition” and awarded him a non-service-connected disability pension effective July 1, 1975. Decision at *2; J.A. 478, 480. The VA subsequently suspended Mr. Cook’s non-service- connected pension benefits in 1981 because of a change in his income relating to his receipt of Social Security bene- fits. Decision at *2; J.A. 475–76. Mr. Cook applied for VA benefits again in 2006, stating that he no longer was re- ceiving Social Security benefits while admitting that his

1“J.A.” refers to the joint appendix, ECF No. 25, filed by Mr. Cook. Case: 23-1562 Document: 46 Page: 3 Filed: 03/28/2025

COOK v. COLLINS 3

non-service-connected pension had been terminated in 1981. Decision at *2; J.A. 435–46. In 2009, Mr. Cook submitted an informal claim re- questing service connection for thyrotoxicosis with exoph- thalmos. Decision at *3; J.A. 435–46. On June 22, 2016, the Board granted Mr. Cook service connection for a thy- roid disorder. Decision at *3; J.A. 288–94. Accordingly, on July 5, 2016, the RO awarded him: “(1) a 10% disability rating for hypothyroidism, status post Graves’ disease (also claimed as thyrotoxicosis),” and “(2) a 0% disability rating for exophthalmos,” both effective on September 8, 2009. Decision at *3; J.A. 280–86. On November 25, 2019, the Board denied Mr. Cook en- titlement to a rating in excess of 10 percent before Decem- ber 10, 2017, and in excess of 30 percent after December 10, 2017, for Mr. Cook’s service-connected hypothyroidism. Decision at *3; J.A. 499. The Board also denied Mr. Cook entitlement to a service-connected TDIU rating. Decision at *3; J.A. 499. In March 2020, the Board granted entitle- ment to an effective date of July 1, 1975, for service-con- nected hypothyroidism and service-connected exophthalmos associated with hypothyroidism. Decision at *3; J.A. 80. A March 2020 rating decision assigned Mr. Cook a 10 percent disability rating for hypothyroidism and a non-compensable disability rating for exophthalmos. Decision at *3; J.A. 80. In March 2021, the Veterans Court set aside the No- vember 2019 Board decision and remanded the case for the Board to provide an adequate statement of reasons and to evaluate Mr. Cook’s claim under 38 C.F.R. § 3.344. Deci- sion at *3; Cook v. McDonough, No. 19-8650, 2021 WL 1182921, at *6–7 (Vet. App. Mar. 30, 2021). In December 2021, the Board again denied Mr. Cook a disability rating over 10 percent effective prior to December 10, 2017, for hypothyroidism, and over 30 percent effective after Decem- ber 10, 2017, and denied Mr. Cook entitlement to a service- Case: 23-1562 Document: 46 Page: 4 Filed: 03/28/2025

connected disability rating for TDIU. Decision at *3; J.A. 77. In discussing 38 C.F.R. § 3.344, the Board concluded that the “assigned ratings did not revise the January 1976 decision awarding [non-service-connected] pension and the assignment of a 10 percent disability rating prior to Decem- ber 10, 2017, and 30 percent, thereafter, does not constitute a reduction of the 60 percent rating assigned for [non-ser- vice-connected] pension purposes only.” Decision at *4 (quoting J.A. 83). Mr. Cook appealed, and the Veterans Court affirmed the Board’s decision. Decision at *4–5. The Veterans Court found no clear error in the Board’s determination that the 60 percent disability rating assigned for non-service-con- nected pension was not solely for the same disability for which he is currently service connected. Decision at *4. The Veterans Court also rejected Mr. Cook’s argument that the 1976 decision was a protected rating under 38 C.F.R. § 3.951(b). 2 Id. This appeal followed. II. DISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpreta- tion thereof [by the Veterans Court], and to interpret con- stitutional and statutory provisions, to the extent presented and necessary to a decision.” Id. § 7292(c); Mid- dleton v. Shinseki, 727 F.3d 1172, 1175 (Fed. Cir. 2013).

2 This regulation provides that, absent a showing of fraud, the VA may not reduce “[a] disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes,” or “a rat- ing of permanent total disability for pension purposes which has been in force for 20 or more years.” 38 C.F.R. § 3.951(b). Case: 23-1562 Document: 46 Page: 5 Filed: 03/28/2025

COOK v. COLLINS 5

This court may not, except to the extent that an appeal pre- sents a constitutional challenge, “review (A) a challenge to a factual determination, or (B) a challenge to a law or reg- ulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). “We therefore generally lack jurisdic- tion to review challenges to the Board’s factual determina- tions or to any application of law to fact.” Middleton, 727 F.3d at 1175 (citing Johnson v. Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991)). We lack jurisdiction over this appeal because Mr. Cook challenges factual determinations and does not present a constitutional challenge. Mr. Cook asks us to find that the conditions for which he was non-service-connected in 1976 are the same conditions for which he was later service con- nected in 2016. See, e.g., Appellant’s Br. 7. Mr. Cook’s ar- guments about the relatedness of his service-connected and non-service-connected disabilities sound in fact rather than in law. Jefferson v. Principi, 271 F.3d 1072, 1075 (Fed. Cir. 2001) (challenges to whether disabilities are ser- vice connected “are factual challenges over which we have no jurisdiction”). Thus, we lack jurisdiction over Mr. Cook’s appeal. Mr. Cook argues that the Board legally erred by violat- ing regulations that emphasize the need for finality in the VA’s decisions. See Appellant’s Br. 12–16. For example, Mr. Cook relies on various regulations to argue that it is necessary to defer to the finality of the Board’s decisions. See, e.g., Appellant’s Br. 12–14 (citing 38 C.F.R. § 3.104(a), § 3.105(a), § 3.344, and § 3.951(b)). However, these regula- tions are not applicable because the finality of the Board’s decisions is not at issue. Decision at *4. For example, the Board determined that Mr. Cook’s 1976 award of a 60 per- cent non-service-connected pension was based on a differ- ent combination of disabilities than the basis for the later service-connected rating decision on appeal. Decision at *3; J.A. 82. This was a finding of fact over which we do not have jurisdiction. Moreover, Mr. Cook does not contend Case: 23-1562 Document: 46 Page: 6 Filed: 03/28/2025

that the Veterans Court misinterpreted any of these regu- lations. At best, Mr. Cook challenges the application of these regulations to the factual circumstances in this case. We also lack jurisdiction to hear such a challenge. III. CONCLUSION We have considered Mr. Cook’s other arguments and find that none of the arguments raises a nonfrivolous issue over which we can assert jurisdiction. For the above rea- sons, we dismiss Mr. Cook’s appeal. DISMISSED COSTS No costs.