Veteranclaims’s Blog

May 8, 2014

FedCir., Application; Cushman, 576 F.3d at 1300 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995))

Excerpt from decision below:

“In Cushman, we held that a veteran’s “entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.” 576 F.3d at 1298. We disagree with the Government that Mr. Newgard’s constitutional issue falls outside our jurisdiction. Because Mr. Newgard’s entitlement to benefits is protected by the Constitution, we have jurisdiction to consider a constitutional challenge to a
NEWGARD v. SHINSEKI 7

factual determination, as we did in Cushman. See 38 U.S.C. § 7292(d)(2); Cushman, 576 F.3d at 1300. Turning to the merits, however, we hold the Government did not violate Mr. Newgard’s right to due process.
We explained in Cushman that “[a]lterations of evidence are material for due process purposes if there is a ‘reasonable probability of a different result’ absent those alterations.” Cushman, 576 F.3d at 1300 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Because, in Cushman, the content of the altered document indicated that the veteran was more employable than did the content of the unaltered document, we found that there was a reasonable probability the result would have been different. Id.”

======================

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
______________________
HOWARD NEWGARD,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7005
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1334, Chief Judge Bruce E.
Kasold.
______________________
Decided: May 8, 2014
______________________
HOWARD NEWGARD, of Spencer, Iowa, pro se.
AUSTIN M. FULK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director, and
STEVEN J. GILLINGHAM, Assistant Director. Of counsel
were MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel, TRACEY PARKER WARREN, Y. KEN LEE and BRIAN
2 NEWGARD v. SHINSEKI
D. GRIFFIN, Attorneys, United States Department of
Veterans Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, DYK, and O’MALLEY, Circuit
Judges.
O’MALLEY, Circuit Judge.
Howard Newgard appeals the judgment of the Court
of Appeals for Veterans Claims (“Veterans Court”) affirming
the decision of the Board of Veterans Appeals
(“Board”) that (1) assigned a disability rating of 10% for a
left-knee disability from August 14, 1995 to July 19, 2001,
and (2) denied benefits for cervical, right-wrist, and rightelbow
disabilities, because these disabilities were not
incurred in or aggravated by service. Because we conclude
that the Veterans Court did not err in finding that
Mr. Newgard did not establish that he was denied due
process in connection with his disability claims, and
because Mr. Newgard does not identify any appealable
issues that involve the validity or interpretation of a
statute or regulation, we affirm in part and dismiss in
part.

I. BACKGROUND
In 1969, Mr. Newgard served on active duty with the
United States Army for less than five months. In August
1969, during a training exercise, Mr. Newgard fell and
tore the medial meniscus in his left knee. This was the
same knee he had injured in a tobogganing accident four
years before entering the army. Because of his injury, the
army placed Mr. Newgard on limited duty and subsequently
discharged him.
After his discharge, Mr. Newgard filed his original
service connection claim with the Veterans Administration
in October 1970, arguing his service related activities
caused or, at a minimum, aggravated his knee injury. In
NEWGARD v. SHINSEKI 3

March 1971, the Regional Office (“RO”) denied his claim,
finding that the pre-existing left knee condition was not
aggravated by active service (“March 1971 rating decision”).
Mr. Newgard did not appeal this decision, which
became a final adjudication of the claim. See 38 U.S.C.
§ 7105(c) (2012) (“If no notice of disagreement is filed in
accordance with this chapter within the prescribed period,
the action or determination shall become final and the
claim will not thereafter be reopened or allowed, except as
may otherwise be provided by regulations not inconsistent
with this title.”); 38 C.F.R. §§ 20.302, 20.1103 (2012).
Twenty-four years later, in August 1995, Mr. Newgard
filed a request to reopen his claim of entitlement to
service connection based on new and material evidence.
Along with this request, he also filed an application for
nonservice connected pension benefits. The RO, however,
determined that Mr. Newgard failed to submit new and
material evidence sufficient to reopen his claim of service
connected entitlement to a disability award and also
denied the request for nonservice connected pension
benefits (“October 1995 decision”). Mr. Newgard filed a
notice of disagreement, which, according to the Veterans
Court, kept his claims pending.
In December 1995, Mr. Newgard resubmitted both requests.
The RO again denied the request to reopen the
claim of entitlement to service connection for his knee
injury, but awarded him nonservice connected pension
benefits and evaluated his left knee disability at 10%,
effective August 14, 1995. Newgard v. Shinseki, No. 08-
0249, 2010 WL 1734885, at *3 (Vet. App. Apr. 30, 2010).
In March 1997, Mr. Newgard challenged the March
1971 rating decision, alleging that it contained clear and
unmistakable error (“CUE”). The RO found that the
March 1971 decision did not contain CUE and Mr. Newgard
did not appeal, making the decision final. See 38
U.S.C. § 7105(c).
4 NEWGARD v. SHINSEKI

In December 2003, based on a medical opinion submitted
by Mr. Newgard’s physician, the RO reevaluated
the still-open October 1995 decision. In re Newgard, No.
03-08 191, slip op. at 11 (Bd. Vet. App. Jan 7, 2008).
Based on this new information, the RO granted Mr.
Newgard service connection for his left knee injury and
awarded a disability rating of 20% (“December 2003
rating decision”). Id. at 13. The service connection was
made retroactive to August 14, 1995—the date Mr. Newgard
reopened his claim of entitlement—but the 20%
disability rating was not deemed retroactive because the
Board found that, prior to July 2001, Mr. Newgard had
full range of motion in his knee. This meant that, while
he did receive the benefits noted above based on his knee
injury, he received no compensation for his service connection
disability from August 14, 1995 to July 18, 2001,
when the Board first deemed that injury compensable.
Id. at 23.
In April 2003, Mr. Newgard submitted another challenge
to the March 1971 rating decision, again alleging
CUE. Newgard v. Shinseki, No. 08-0249, 2010 WL
1734885, at *3 (Vet. App. Apr. 30, 2010). The RO denied
this claim in May 2004 (“May 2004 rating decision”).
Mr. Newgard appealed the RO’s December 2003 and
May 2004 rating decisions—first to the Board, which
affirmed, and then to the Veterans Court. The Veterans
Court found that Mr. Newgard’s CUE motion was barred
by res judicata, but it also concluded that the Board failed
to consider all relevant evidence regarding Mr. Newgard’s
left knee injury and, therefore, vacated and remanded
that portion of the Board’s decision. Mr. Newgard appealed
the Veterans Court’s decision to this court. See
Newgard v. Shinseki, 412 Fed. App’x 291, 292 (Fed. Cir.
2011). The panel affirmed the finding of res judicata and
dismissed Mr. Newgard’s due process arguments as an
improper attempt to argue that the March 1971 rating
decision was wrong. Id. at 294–95.
NEWGARD v. SHINSEKI 5

On remand, Mr. Newgard sought an increase in the
disability rating for his left knee and a service connection
for his cervical, right wrist, and right elbow injuries. The
Board found that Mr. Newgard was entitled to a 10%
disability rating for his left knee injury from August 14,
1995 to July 18, 2001. The Board, however, denied claims
of entitlement for his cervical, wrist, and elbow disabilities
because none of those injuries was sustained in or
aggravated by his service. The Veterans Court affirmed
the Board’s decision because the Board’s findings were
supported by substantial evidence. The Veterans Court
also found that Mr. Newgard had failed to demonstrate a
due process violation because the alleged new and unaltered
documents he uncovered from his Freedom of Information
Act (“FOIA”) request had been in the record
since 2010 and none of the alleged new information
materially differed from the original record. Newgard v.
Shinseki, No. 12-1334, slip op. at 2–3 (Vet. App. Aug. 9,
2013). This appeal followed.

II. DISCUSSION
Our jurisdiction over the decisions of the Veterans Court is limited by statute. Bond v. Shinseki, 659 F.3d 1362, 1366 (Fed. Cir. 2011). Unless the appeal presents a
constitutional issue, 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.” 38
U.S.C. § 7292(d)(2). Under 38 U.S.C. § 7292(a), we may also review “the validity of a decision of the [Veterans] Court on a rule of law or any statute or regulation . . . or
any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.” Mr. Newgard has alleged that his appeal involves constitutional issues and the validity or interpretation of a statute.
6 NEWGARD v. SHINSEKI

a. Constitutional Issue
Mr. Newgard argues that the Veterans Court has violated his constitutional right to due process by not giving him a “meaningful opportunity to be heard.” Appellant’s Br. 9. He further contends that our decision in Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) mandates
reversal because, after Mr. Newgard made a FOIA request for his file in 2007, he uncovered additional and unaltered documents that the RO had not included in the record of the original March 1971 rating decision. Mr. Newgard argues that, similar to Cushman where a document
in the record was altered, the missing and unaltered documents from his file prove that he did not have a fair hearing.
The Government responds that this case falls outside of our jurisdiction because, in its view, all of Mr. Newgard’s arguments amount to factual disagreements concerning the amount of his disability award. The Government further contends that Mr. Newgard’s due process rights have not been violated because the Veterans Court analyzed in the decision under review the
entire record, including the allegedly missing documents found in Mr. Newgard’s 2007 FOIA request. The Government argues that the Veterans Court distinguished Cushman because “the documents to which [Mr. Newgard] cites do not reflect any substantive or material
differences across the versions.” Newgard v. Shinseki, No. 12-1334, slip op. at 2 (Vet. App. Aug. 9, 2013).
In Cushman, we held that a veteran’s “entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.” 576 F.3d at 1298. We disagree with the Government that Mr. Newgard’s constitutional issue falls
outside our jurisdiction. Because Mr. Newgard’s entitlement to benefits is protected by the Constitution, we have jurisdiction to consider a constitutional challenge to a
NEWGARD v. SHINSEKI 7

factual determination, as we did in Cushman. See 38 U.S.C. § 7292(d)(2); Cushman, 576 F.3d at 1300. Turning to the merits, however, we hold the Government did not violate Mr. Newgard’s right to due process.
We explained in Cushman that “[a]lterations of evidence are material for due process purposes if there is a ‘reasonable probability of a different result’ absent those alterations.”
Cushman, 576 F.3d at 1300 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Because, in Cushman, the content of the altered document indicated that the veteran was more employable than did the content of the unaltered document, we found that there was a reasonable probability the result would have been different. Id.
In this case, on the other hand, the Board considered the alleged new and unaltered documents in 2010. The new and unaltered documents, moreover, did not reflect any
substantive or material differences with the old record. See Newgard v. Shinseki, No. 12-1334, slip op. at 2 (Vet. App. Aug. 9, 2013) (explaining that the alterations were to
the formatting and an irrelevant alleged date alteration, and the missing document did not contain any personal or admission data about Mr. Newgard besides his name).
Because these changes are irrelevant to the rating decision, there is no reasonable probability of a different result absent those alleged alterations and omissions. See
Cushman, 576 F.3d at 1300. Accordingly, we affirm the Veterans Court’s finding that Mr. Newgard was not deprived of his right to due process.

b. Validity or Interpretation of a Statute
Mr. Newgard also alleges that the Veterans Court’s
decision involved the validity or interpretation of a statute
or regulation. See 38 U.S.C. § 7292(a). Mr. Newgard
argues that the Veterans Court’s decision implicated the
validity or interpretation of a statute because he was
illegally discharged under United States Army regulation
AR 635-200, instead of under AR 40-501 and 29 C.F.R.
8 NEWGARD v. SHINSEKI

§ 6718 (1964). He also argues that the Veterans Court
failed to afford him a “presumption of soundness” under
38 U.S.C. § 1111, and that he is entitled to a 100% disability
rating based on 38 C.F.R. § 4.29.
The Government responds that the Veterans Court’s
decision did not elaborate on the meaning of any statute
or regulation, or involve a rule of law. The Government
argues that Mr. Newgard’s request to review his army
discharge under AR 635-200 is improper because the
Veterans Court does not review army discharges; it assesses
service connection. The Government further
contends that Mr. Newgard is not entitled to a 100%
disability rating under 38 C.F.R. § 4.29 because that
disability rating is limited to the time spent confined in
the hospital. See 38 C.F.R. § 4.29(a).
Mr. Newgard’s arguments are unpersuasive. The
statutes he identifies were not properly at issue before the
Veterans Court. Indeed, the Veterans Court’s decision did
not interpret or consider the validity of AR 635-200, 38
U.S.C. § 1111, or 38 C.F.R. § 4.29. Newgard v. Shinseki,
No. 12-1334, slip op. at 1–3 (Vet. App. Aug. 9, 2013). We
therefore do not have jurisdiction under 38 U.S.C.
§ 7292(a).
We have considered Mr. Newgard’s remaining arguments
and find that none of them fall within our statutorily
defined jurisdiction for appeals from the Veterans
Court.1
1 For example, Mr. Newgard argues that his March
1997 challenge to the March 1971 rating decision did not
argue CUE and therefor did not bar the April 2003 CUE
challenge. Although this may have been relevant in his
prior appeal to this court, it is not at issue in this appeal
and the Veterans Court properly refused to address it.
See Newgard v. Shinseki, No. 12-1334, slip op. at 3 (Vet.
NEWGARD v. SHINSEKI 9

III. CONCLUSION
For the foregoing reasons, we affirm in part and dismiss
in part for lack jurisdiction.
AFFIRMED IN PART AND DISMISSED IN
PART
App. Aug. 9, 2013); see also Newgard, 412 Fed. App’x at
292. We therefore do not have jurisdiction to review Mr.
Newgard’s CUE argument. See 38 U.S.C. § 7292(a).

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