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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1259%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006

## Text

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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

A-18

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1259%3A2. Public record. Not legal advice.