Appendix — Bradley v. Nicholson, 127 S. Ct. 283 (2006) (No. 06-158)

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR

VETERANS CLAIMS

No. 03-658

DENNIS F. BRADLEY, APPELLANT

Vv.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before GREENE, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

GREENE, Judge: The veteran, Dennis F. Bradley,

appeals, pro se, a March 17, 2003, decision of the Board of

Veterans’ Appeals (Board) that (1) denied an initial disability

rating higher than 40%, before November 12, 1997, for his

VA service-connected degenerative disc disease of the

lumbar spine; (2) determined that there was no clear and

unmistakable error (CUE) in an August 1967 VA regional

office (RO) decision that denied service connection for a

back injury; and (3) denied an effective date earlier than

April 23, 1990, for his service-connected degenerative disc

disease of the lumbar spine. Record (R.) at 4-5. In his brief,

Mr. Bradley argues, inter alia, that the August 1967 RO

decision failed to consider sections 1110 and 1154(b) of title

38, U.S. Code. Appellant's Brief (Br.) at 1-7. This appeal is

timely, and the Court has jurisdiction over the case pursuant

to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is

appropriate in this case. See Frankel v. Derwinski, 1

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Vet.App. 23, 25-26 (1990). For the reasons that follow, the

Court will affirm the March 17, 2003, decision of the Board.

I. FACTS

Mr. Bradley served on active duty in the U.S. Army

from November 1959 to September 1962 and from August

1964 to June 1967, including service in Vietnam. R. at 27-28.

His March 1967 discharge examination report contained a

notation of "[d]iagnosed as degen[erative] disc disease." R. at

80. In a July 1967 VA orthopedic examination report, a VA

physician noted that "[Mr. Bradley] g[a]ve[] a history of

injury to his back while in the service” and that "[the i}njury

occurred in 1964, while lifting heavy boxes." R. at 100. The

physician concluded with a diagnosis of “[d]egenerative[]

disc disease, not found.” /d. A July 1967 VA radiographic

report contained _an impression of "[n]egative lumbar spine."

R. at 103. The August 1967 RO decision denied service

connection for degenerative disc disease and noted that

"[dJegenerative disc disease-was-not found." R. at 112. Mr.

Bradley filed a Notice of Disagreement (NOD) as to that

decision in September 1967 (R. at 114), but he did not file a

Substantive Appeal (see R. at 1-1302).

In March 1994, the Board awarded Mr. Bradley

service connection for a low-back disorder. R. at 243-44. His

condition subsequently was assigned a 10% rating in April

1994. R. at 254-57. In reaching this determination, the Board

"conclude[d] that a valid basis exists for finding that

intermittent and progressive low[-]back symptomatology

over the years are the residuals of the low[-]back injury

during active duty." R. at 243. The Board also determined

that the August 1967 RO decision was not the product of

CUE. /d. Mr. Bradley then appealed as to the issue of CUE

(R. at 259, 527-29), and in July 1996, the Court vacated the

March 1994 Board decision and remanded the CUE matter

for readjudication (R. at 592-93). In so doing, the Court held

that the August 1967 RO decision has erred in "den{ying] the

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very existence of the evidence" showing that Mr. Bradley's

back condition had been noted on examination at the time of

his discharge from his second period of service. R. at 592

(quoting Russell v. Principi, 3 Vet.App. 310, 319 (1992) (en

banc)); see R. at 80 (discharge examination report). The

Court remanded the matter for a determination of "whether,

had the error . . . not been made in the 1967 RO adjudication

and had the RO considered the finding of in-service back

injury on [Mr. Bradley's] discharge examination, the outcome

would manifestly have been changed." R. at 592 (citing

Mason v. Brown, 8 Vet.App. 44, 52-53 (1995), and Russell,

supra).

On remand, the Board, in a March 1997 decision,

stated that, “[a]lthough the RO obviously erred in its

discussion of the facts regarding [Mr. Bradley's] separation

examination report, the Board finds that the result would not

have been manifestly different but for the error." R. at 978.

The Board further found that, "[a]lthough there was some

evidence of degenerative disc disease . . . in service,

degenerative disc disease . . . w[as] essentially ruled out in

the July 1967 VA examination." /d. The Board thus

concluded that there was no CUE in the August 1967 RO

decision. K. at 979. Mr. Bradley then filed a motion for

reconsideration with the Board, which was denied in June

1997. R. at 1022-27.

In January 1998, the RO, after it had received

additional evidence (including a November 12, 1997, VA

medical record containing a diagnosis of “[sJevere [d]isc

[hJerniation at L1-L2," and another containing a notation

of"[s]evere pain in lower back radiating in both legs"

(Supplemental (Suppl.) R. at 4)), increased Mr. Bradley's

rating for his low-back disorder to 40%, with an effective

date of April 23, 1990 (which is also the effective date of the

award of service connection), and to 60%, with an effective

date of November 12, 1997. R. at 1040. He subsequently

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filed an NOD as to that decision. R. at 1048-49. In January

2001, Mr. Bradley again alleged to the RO that the August

1967 RO decision was the product of CUE. R. at 1203. Ina

November 2001 decision, the RO determined that there was

no CUE in the August 1967 RO decision (R. at 1255), and

Mr. Bradley appealed (R. at 1279-85).

In the March 2003 decision on appeal, the Board

concluded that, although the evidence showed that Mr.

Bradley had degenerative disc disease and low-back pain as

far back as 1992, that evidence did not show that the criteria

for a rating of 60% were met prior to November 12, 1997. R.

at 15. The Board also considered the issue of functional loss

due to pain:

With respect to [Mr. Bradley's] entitlement to an

increased evaluation under 38 C.F.R. §§ 4.40,

4.45, and 4.59, the Board has also considered

whether an increased evaluation could be

assigned on the basis of functional loss due to

[his] subjective complaints of pain. See DeLuca

v. Brown, 8 Vet.App. 202, 204-205 (1995);

VAOPGCPREC 36-97, 63 Fed. Reg. 31,262

(1998). However, [although] the evidence

shows a limitation of motion in the lumbar

spine, as well as chronic pain, the evidence does

not otherwise show functional loss due to pain

to warrant a rating in excess of 40[%] prior to

November 12, 1997. In particular, the Board

notes the lack of evidence of such findings as

neurological impairment or muscle atrophy, and

findings of strength of 4/5 or greater in the

lower extremities. The Board therefore

concludes that the evidence does not show that

there is functional loss due to pain to warrant a

rating in excess of 40[%] prior to November 12,

1997. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra.

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R. at 16. Additionally, the Board addressed whether other

diagnostic codes (DCs) could potentially be applied to Mr.

Bradley's disorder.

The Board has considered the possibility of a

rating in excess of 40[%] prior to November 12,

1997[,] under other potentially applicable

[DCs]. See Schafrath v. Derwinski, 1 Vet.App.

589 (1991). However, [Mr. Bradley} received a

40[%] rating for his low[-]back disorder

effective from the date of service connection

until November 12, 1997. This is the maximum

rating allowed under 38 C.F.R. § 4.71a, [DCs]

5292 and 5295. As for other codes, in order to

warrant an evaluation in excess of 40[%] under

[DC] 5289, [Mr. Bradley] would have had to

demonstrate that his spine was ankylosed

(complete bony fixation) at an unfavorable

angle. However, [the evidence of record does

not show] ankylosis of the lumbar spine.

R. at 16.

As to the issue of CUE in the August 1967 RO

decision, the Board first stated that, "to the extent that [Mr.

Bradley] argues that the RO failed to apply 38 U.S.C. {] §

1154(b), this argument was not before th[e}] Board at the time

of its March 1997 denial of his CUE claim" and therefore

"this aspect of his CUE claim is considered to be a new

claim." R. at 18. The Board also found that, “to the extent

that [Mr. Bradley} currently argues that the !:O failed to

correctly apply 38 U.S.C. § 1110, this argument had been

made and was within the scope of the arg:«ents addressed in

the Board's March 1997 decision." Ja. The Board then

determined that there was no CUE in the August 1967 RO

decision, concluding that, “even if participation in combat

had been shown [and section 1154(b) applied], the RO would

still have had a rational basis for denying his claim, [because]

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the most recent medical evidence of record indicated that he

did not have the claimed condition." R. at 21.

Il. ANALYSIS

A. Higher Initial Disability Rating

The degree of disability under the VA schedule for

rating disabilities is a finding of fact subject to the "clearly

erroneous" standard of review. See Smallwood vy. Brown, 10

Vet.App. 93, 97 (1997); Gilbert v. Derwinski, 1 Vet.App.

49, 53 (1990). A finding of fact is clearly erroneous when

"although there is evidence to support it, the reviewing court

on the entire evidence is left with a definite and firm

conviction that a mistake has been committed." Gilbert, 1

Vet.App. at 52. When applying this standard, "if there is a

‘plausible’ basis in the record for the factual determinations of

the [Board], . . . [the Court] cannot overturn them." Gilbert,

supra. In assigning an initial rating following an initial award

of service connection, VA must consider all evidence of

record from the time of the veteran's application for service

connection. See Fenderson v. West, 12 Vet.App. 119, 126

(1999). |

In this case, although the Board noted that there was

some evidence of neurological involvement (one of the

criteria under the applicable 60% rating) prior to 1997, the

Board also found that the evidence did not meet the criteria

for the 60% rating prior to 1997. R. at 15. The Court

concludes that the Board had a "plausible basis" for this

determination. Gilbert, supra. The Board first noted that,

under the then applicable rating criteria, a 60% rating was

warranted for intervertebral disc syndrome (IDS)

“pronounced, with persistent symptoms compatible with

sciatic neuropathy with characteristic pain and demonstrable

muscle spasm, absent ankle jerk, or other neurological

findings appropriate to the site of the diseased disc, little

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intermittent relief." R. at 12 (citing 38 C.F.R. § 4.71a, DC

5293 (2001)). The Board then concluded, after a thorough

review of the evidence of record, that "[t]he findings [prior to

the November 12, 1997, VA medical examination report

(Suppl. R. at 4)], to include neurological, sensory and deep

tendon reflex findings, do not show pronounced IDS, nor is

pronounced IDS shown by the other findings of record." R. at

15. The Court cannot find, nor does Mr. Bradley refer to, any

evidence of record that demonstrates the existence of

pronounced IDS, as required by the applicable DC, prior to

November 1997. See, e.g., R. at 482 (September 1994 VA

medical examination report containing diagnosis of

"{c}hronic low[-]back pain" with "some loss in lumbar range

of motion, secondary to pain, but no major functional

deficit"), 612-14 (private physician progress notes from

March 1993 through February 1994 describing mild-to-

moderate low-back pain with “some improvement").

Therefore, the Board's decision denying an increased initial

rating for Mr. Bradley's service-connected degenerative disc

disease of the lumbar spine will be affirmed.

B. CUE

Section 3.105(a) of title 38, Code of Federal

Regulations, provides in pertinent part "[P]jrevious

determinations which are final and binding . . . will be

accepted as correct in the absence of [CUE]. Where

evidence establishes such error, the prior decision will be

reversed or amended." See 38 U.S.C. § 5109A; Cook v.

Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc), cert.

denied, 539 U.S. 926 (2003). For CUE to exist, either (1) the

correct facts in the record were not before the adjudicator or

(2) the statutory or regulatory provisions extant at the time

were incorrectly applied. See Damrel v. Brown, 6 Vet.App.

242, 245 (1994). In addition, "the error must be ‘undebatable'

and of the sort 'which, had it not been made, would have

manifestly changed the outcome at the time it was made." Jd.

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(quoting Russell, 3 Vet.App. at 313-14); see Bustos v. West,

179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting

"manifestly changed the outcome” language of Russell,

supra). "In order for there to be a valid claim of [CUE], .. .

[t]he claimant, in short, must assert more than a disagreement

as to how the facts were weighed or evaluated." Russell, 3

Vet.App. at 313. That is because, “even where the premise of

error is accepted, if it is not absolutely clear that a different

result would have ensued,-.the error complained of cannot be,

ipso facto, clear and unmistakable." Fugo v. Brown, 6

Vet.App. 40, 43-44 (1993). The Court's review of a Board

decision concerning CUE in prior decisions is limited to

whether the Board's conclusion was “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law,"

under 38 U.S.C. § 7261(a)(3)(A), and whether the decision is

supported by an adequate statement of reasons or bases,

under 38 U.S.C. § 7104(d)(1). See Russell, 3 Vet.App. at

315.

In this case, Mr. Bradley raises arguments regarding

the application by the RO in 1967 of 38 U.S.C. §§ 1110

(Appellant's Br. at 1, 5) and 1154(b) (Appellant's Br. at 1-6).

With regard to his arguments regarding section 1110, as the

Board correctly noted, these arguments previously were

addressed in a final Board decision in March 1997, R. at 978-

79. Therefore, these arguments are foreclosed as an avenue

of demonstrating CUE in the 1967 RO decision. See Corwin

v. Principi, 18 Vet.App. 246, 248 (2004) (per curiam order);

Bissonnette v. Principi, 18 Vet.App. 105, 112 (2004).

Concerning Mr. Bradley's contention that section

1154(b) was not properly applied, the evidence of record, as

detailed by the Board, regarding his claim at the time of the

August 1967 RO decision is, at best, equivocal. See R. at 80,

100, 103. Thus, even had section 1154(b) been applied in this

case, it would demonstrate only the in-service incurrence of

his disability; this Court has previously held that section

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1154(b) does not alter the fundamenta! requirements of a

current disability or medical nexus to service. See Libertine

v. Brown, 9 Vet.App. 521, 523-24 (1996); Caluza v. Brown,

7 Vet.App. 498, 507-08 (1995). Even assuming that Mr.

Bradley's discharge diagnosis of degenerative disc disease

could suffice to be some evidence of the other two elements

of a current disability or a medical nexus to service for

service connection, the evidence of record at the time is at

best equivocal as to current disability, See R. « 100 (July

1967 VA special orthopedic examination with diagnosis of

"[djegenerative [] disc disease[] not found"), 103 (July 1967

VA radiographic report with impression of "[nJegative

lumbar spine"). Hence, regardless of any deficiencies in the

August 1967 RO decision, Mr. Bradley cannot demonstrate

that the outcome of that decision would have been manifestly

changed absent any purported adjudicative errors. See

Russell, 3 Vet.App. at 313-14; Bustos, supra. Mr. Bradley's

remaining contentions are without merit, and the Court will

not address them.

The Court thus concludes that the 2003 Board

decision that the August 1967 RO decision did not contain

CUE is not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law, and is supported by an

adequate statement of reason or bases. See Russell, 3

Vet.App. at 315. Furthermore, the Court will dismiss Mr.

Bradley's March 10, 2004, motion for summary judgment, as

it is now moot.

Ill. CONCLUSION

Upon consideration of the foregoing, Mr. Bradley's

March 2004 motion for summary judgment is dismissed, and

the March 17, 2003, Board decision is AFFIRMED.

DATED: MAR 15 2005

Copies to:

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Dennis F. Bradley

3146 River Branch Circle

Kissimmee, FL 34741

General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC 20420

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NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition

is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

~ 05-7192

DENNIS F. BRADLEY,

Claimant-Appellant,

v.

R. JAMES NICHOLSON,

Secretary of Veterans Affairs

Respondent- Appellee.

DECIDED: May 12, 2006

Before MICHEL, Chief Judge, NEWMAN and MAYER,

ircul es.

Mr. Dennis F. Bradley appeals from the decision of

the Court of Appeals for Veterans Claims’ holding that the

Board of Veterans Appeals did not commit clear and

unmistakable error (CUE) in deciding Mr. Bradley's claim.

Because the Court of Appeals for Veterans Claims applied

the correct legal standard, because no constitutional violation

has been shown, and this court does not possess jurisdiction

to review the application of the legal standard to the facts of a

particular case, the judgment is affirmed.

' Bradley v. Nicholson, No. 03-658, (C.A.V.C. August 1,

2005) (judgment); (March 15, 2005) (memorandum opinion).

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BACKGROUND

Mr. Bradley served two tours of active duty in the

Army, from November 1959 to September 1962 and from

August 1964 to June 1967, including service in Vietnam. He

was diagnosed with degenerative disk disease in his March

1967 discharge examination. X-ray examination at that time

revealed a minimal but definite narrowing of the L4-L5

intervertebral space.

At a physical examination in July 1967, a VA

physician attributed the disk injury to Mr. Bradley's lifting

heavy boxes on detail, for Mr. Bradley stated that he

performed this task. The diagnosis was "negative [for]

lumbar spine [disease]" and that "degenerative disk disease

was not found," contrary to the March 1967 diagnosis. The

Regional Office (RO) denied service connection for back

injury in August 1967. Mr. Bradley filed a Notice of

Disagreement in September 1967 but did not file an appeal to

the Board of Veterans Appea!s.

In March 1994, on Mr. Bradley's request for review,

the Board found that "intermittent and progressive low back

symptomatology over the years are the residuals of the low

back injury during active duty,” and he apparently was given

a 20% disability rating by the RO in November 1994.

However, the Board determined that the 1967 decision of the

RO was not clear and unmistakable error, and did not warrant

a retroactive effective date. Mr. Bradley appealed this ruling.

The Court of Appeals for Veterans Claims vacated

the March 1994 Board decision, and remanded for

determination of whether the outcome would have been

different if consideration had been given to the March 1967

diagnosis of in-service back injury. On remand the Board

acknowledged that it was error not to have taken the

discharge diagnosis into account, but stated that "the result

would not have been manifestly different but for the error"

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because the July 1967 physician had disagreed with the

March 1967 discharge diagnosis, and it was not CUE for the

RO to have relied on the later examination. Thus the Board

held that there was not clear and unmistakable error in the

1967 RO decision.

At a medical examination on November 12, 1997, the

medical officer diagnosed a "severe" disk herniation at L1-

L2, the lumbar spine, with "severe pain in lower back

radiating to both legs." Consequently, the RO increased Mr.

Bradley's disability rating to 40% retroactive to April 23,

1990, and to 60% effective November 12, 1997. Mr. Bradley

filed a Notice of Disagreement as to this decision, seeking

both a higher rating and an earlier effective date.

Mr. Bradley filed another claim in January 2001,

asserting CUE in the August 1967 RO decision. In

November 2001 the RO determined that there was no CUE in

the earlier decision. On appeal to the Board, in March 2003

the Board held that although there was evidence of

degenerative disk disease and low-back pain as far back as

1992, Mr. Bradley did not meet the criteria for a 60%

disability rating until November 12, 1997, even taking into

account functional loss due to pain. The Board stated that Mr.

Bradley's argument that the RO failed to apply 38 U.S.C.

§1154’ was not raised in a timely fashion, but that even

applying §1154, "the RO would still have had a rational basis

for denying his claim, [because] the most recent medical

> 38 U.S.C. §1154(b). In the case of any veferan who

engaged in combat with the enemy in active service . . . the

Secretary shall accept as sufficient proof of service-

connection [evidence without official record and] shall

resolve every doubt in favor of the veteran. Service-

connection of such injury or ‘isease may be rebutted by clear

and convincing evidence to t’ contrary.

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evidence of record indicated that he did not have the claimed

condition."

Mr. Bradley again appealed to the Court of Appeals

for Veterans Claims. The court affirmed that there was no

evidence of intervertebral disk syndrome prior to November

1997. Mr. Bradley argued that the Board had failed to apply

38 U.S.C. §§1110 and 1154(b). Regarding §1110 ("the

United States will pay to any veteran thus disabled . . .

compensation as provided in this subchapter"), the court held

that this compensation had already been addressed in the

Board decision of March 1997. Regarding §1154(b), the

Board held that even if the discharge diagnosis provided

evidence of service-connection, a disability rating requires

the existence of actual disability at the effective date of the

rating. Since the physician found that Mr. Bradley's back did

not show degenerative disk disease at the time of his medical

examination in July 1967, the Court of Appeals for Veterans

Claims found that Mr. Bradley did not meet the requirements

for a 60% disability rating in 1967 even applying §1154; that

is, that the result would be the same on the standard of

§1154. This appeal follows.

DISCUSSION

This court has jurisdiction to review appeals from the

Veterans Court regarding "the validity of any statute or

regulation or any interpretation thereof brought under this

section, and to interpret constitutional and statutory

provisions, to the extent presented and necessary to a

decision.” 38 U.S.C. §7292(c). However, this court "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). The government

argues that none of the criteria for review is-met. Mr. Bradley

presents various arguments to bring this appeal within our

jurisdiction.

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A

Mr. Bradley first contends that the RO failed to apply

38 C.F.R. §4.2, which explains that different examiners may

describe the same disability using different language. Mr.

Bradley points out that the July 1967 physician examination

reported "pain on motion" and the November 1967

examination reported "recurrent lower back strain — minimal

disability," although both examinations concluded that there

was not degenerative disk disease. He argues that this was

CUE, and that the RO should have made a decision of

disability based on the finding of lower back strain.

Mr. Bradley also contends that the RO failed to apply

the presumption, established by 38 U.S.C. §1154(b), that

service-connection exists for an injury to a combat veteran

unless the connection is rebutted by clear and convincing

evidence. In addition, Mr. Bradley argues that the RO failed

to apply 38 U.S.C. §1110, which provides for compensation

for veterans who sustained or aggravated injuries in service.

He states that modern MRI technology would have been able

to detect the degenerative disk disease which was not

apparent using the X-ray equipment of 1967.

All of these arguments involve the application of law

to fact, and are excluded from our appellate jurisdiction.

Moreover, the issue of the application of 38 U.S.C. §1110 is

the subject of a separate final unappealed Board decision and

on that basi8 is not reviewable on this appeal. See 38 U.S.C.

§7105(c) (determination becomes fina! unless a notice of

disagreement is filed).

B

Mr. Bradley next argues that the Court of Appeals for

Veterans Claims applied an incorrect legal standard for 38

U.S.C. §1154(b), in its holding that there was "plausible

evidence" supporting the Board's decision. We do not have

authority to review the Board's factual findings or to

i i A A A A Bt tae i al in

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determine the weight and plausibility and probative value of

the evidence on which the findings were based. However, to

the extent that Mr. Bradley argues that the Veterans Court

applied the incorrect legal standard of review under 38

U.S.C. §7261(a)(4), we do have jurisdiction but discern no

such error. See Lennox v. Principi, 353 F.3d 941, 946 (Fed.

Cir. 2003).

_%

Mr. Bradley argues that the statutes providing that the

Federal Circuit cannot review factual findings in veterans

cases, 38 U.S.C. §§511, 7292, are in violation of the equal

protection guaranty of the Fifth and Fourteenth Amendments

of the Constitution. He states that because the Court of

Appeals for the Federal Circuit has jurisdiction to review

factual findings in other areas of its jurisdiction, it

discriminates against veterans to limit Federal Circuit review

in veterans cases.

Challenges to governmental violation of the equal

protection clause are reviewed to ascertain whether the

challenged action is reasonably related to a rational

government interest. When the challenge includes an

assertion of discrimination, particularly against a class that

has historically- been discriminated against, the action

receives heightened scrutiny. Compare Williamson v. Lee

Optical of Okla., Inc., 348 U.S. 483, 491 (1955) (regulation

of opticians reviewed for rational basis) with Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (race-

based classifications are subject to strict scrutiny and are

reviewed to determine whether they are narrowly tailored to

further compelling government interests).

The statute establishing the paths of judicial review of

veterans' claims is tied to the several levels of review

provided by-the regional office, the Board of Veterans

Appeals, and the Court of Appeals for Veterans Claims; all

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of these tribunals can review the factual foundations of a

veteran's claim. The Federal Circuit, however, has been

assigned only limited statutory and constitutional review. See

Forshey v. Principi, 284 F.3d 1335, 1345 n.7 (Fed. Cir. 2002)

(discussing legislative history). The congressional position

that veterans' claim can receive no more than three levels of

factual review does not deprive veterans of equal protection,

particularly in the context of veteran-friendly presumptions.

We conclude that the review procedure is not discriminatory

treatment under the Constitution.

D

Mr. Bradley states that VA physicians ignored some

of the information he presented to them, that some of his

medical records are missing, that he was not given the benefit

of the doubt as required by 38 U.S.C. §5107(b), and that

other administrative deficiencies represent a failure of due

process. These concerns all reflect his challenge to the

resolution of factual questions; we do not possess jurisdiction

to review individual factual determinations.

Due process includes that veterans receive "adequate

notice of the judicial disposition of their claim and an

adequate opportunity to challenge an adverse ruling." Eastern

Paralyzed Veterans Assoc. v. Principi, 257 F.3d 1352, 1359 -

(Fed. Cir. 2001). The regional office, the Board, and the

Court of Appeals for Veterans Claims have reviewed Mr.

Bradley's claim; there is no issue of notice or opportunity to

challenge. We discern no failure of due process in the

proceedings with respect to Mr. Bradley.

E

Finally, Mr. Bradley argues that the government

violated the RICO statutes, 18 U.S.C. §1961 et seq., by

conspiring to deprive him and similarly situated veterans of

their just disability compensation. Mr. Bradley has not

presented a prima facie case of RICO violation, even if all

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disputed facts are resolved in his favor, for the procedures in

this administrative and judicial history do not support an

allegation of racketeering influence. The matters here at issue

relate to findings on the merits of his claim, in the various

administrative and judicial tribunals serving veterans. As we

have explained, the Federal Circuit cannot review these

findings, for the issues all are factual in nature or involve the

application of law to fact.

Each party shall bear its costs.

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NOTE: Pursuant to Fed. Cir. R. 47.6, this order is not citable

as precedent. It is a public order.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

ORDER

Before Michel, Chief Judge, Newman, Circuit Judge, and

Mayer, Circuit Judge.

A petition for rehearing having been filed by the

Appellant,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED.

The mandate of the court will issue on July 3, 2006.

FOR THE COURT,

s/ Jan Horbaly

Jan Horbaly

Clerk

Dated: 06/05/2006

cc: Dennis F. Bradley

Jeffrey S. Pease

BRADLEY V DVA, 2005-7192 FILED

(CVA-03-658) U.S. COURT OF

APPEALS FOR THE

FEDERAL CIRCUIT

JUN ~5 2006

JAN HORBALY

CLERK