On appeal from:United States Court of Veterans Appeals
Before Plager, Lourie, and Bryson, Circuit Judges.
The opinion of the court was delivered by: Lourie, Circuit Judge.
Terry A. Ledford appeals from the final decision of the United States Court of Veterans Appeals dismissing his appeal in part for lack of jurisdiction. Ledford v. Brown, No. 95-285 (Vet. App. Feb. 13, 1997). Because the Court of Veterans Appeals did not err in dismissing his constitutional and statutory claims, we affirm.
Ledford served in the Air Force until he was discharged in 1976 due to schizophrenia. In December 1977, the Department of Veterans Affairs' (DVA's) Regional Office (RO) in Seattle, Washington granted Ledford a 100% disability rating based on individual unemployability. In January 1981, the Seattle RO changed his rating to a 100% schedular rating pursuant to VA Circular 21-80-7, which provided that " 100% schedular evaluation will be assigned if unemployability is directly attributable to a service-connected neuro-psychiatric condition." The stated purpose of the Circular was to re-establish the DVA's control over the "many questionable or erroneous grants of individual unemployability." The rating change amounted in effect to a termination of Ledford's individual unemployability benefits.
In September 1985, Ledford was again examined by the DVA. Because the examiner found that Ledford's schizophrenia was in partial remission, the Seattle RO reduced his schedular rating to 70%. Ledford objected to this reduction and filed a Notice of Disagreement (NOD) with the Board of Veterans' Appeals in December 1985. See 38 U.S.C. § 7105(a) (1994). After several remands for further factual development, the Board in February 1990 confirmed the 70% rating. Ledford continued to disagree and filed another NOD on April 19, 1990. After reassessing the evidence, the Board increased Ledford's schedular rating to 100% and set the effective date for the increase at April 19, 1990.
Ledford then filed another NOD in November 1991 alleging that the effective date for the increase should have been set at February 1, 1986 because it was "clear and unmistakable error" (CUE) *fn1 for the Seattle RO to have decreased his rating in 1985. The Board disagreed and confirmed the April 19, 1990 effective date. In 1993, Ledford again complained about the Seattle RO's error, which the Board treated as a motion for reconsideration and denied in substance. *fn2 Ledford then appealed to the Court of Veterans Appeals.
Before the court, Ledford challenged, inter alia, the 1981 rating decision, which changed his individual unemployability rating to a schedular rating pursuant to the Circular. Specifically, he claimed that the Circular was invalid because (1) it was neither published in the Federal Register nor subject to notice and comment under the Administrative Procedure Act (APA), see 5 U.S.C. §§ 552(a)(1), 553 (1994) and 38 C.F.R. § 1.12 (repealed 1997), and (2) the operation of the Circular violated his due process rights under the United States Constitution because it was inconsistent with 38 C.F.R. § 3.343(c) (1997), which generally prescribes that a 100% individual unemployability rating can be reduced only upon proof of employability by clear and convincing evidence, an evidentiary standard Ledford asserts was not met in his case.
The court characterized Ledford's challenge to the 1981 rating decision as a CUE claim under 38 C.F.R. § 3.105(a) (1997). *fn3 The court then concluded that, because the CUE claim had not been raised before the Board, it lacked jurisdiction over that claim, and dismissed that portion of Ledford's appeal. Ledford appeals the dismissal to this court.
Our jurisdiction to review a decision of the Court of Veterans Appeals is limited by statute:
After a decision of the United States Court of Veterans Appeals is entered in a case, any party to the case may obtain review of the decision with respect to the validity of 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.
38 U.S.C. § 7292(a) (1994); see also id. § 7292(c), (d) (vesting jurisdiction over review of Court of Veterans Appeals decisions in this court and setting certain standards for review); Fugere v. Derwinski, 972 F.2d 331, 334 (Fed. Cir. 1992). Our jurisdiction does not extend to challenges either to factual determinations or to the application of the law to the facts of a particular case. 38 U.S.C. § 7292(d)(2). Whether the Court of Veterans Appeals had jurisdiction is a matter of statutory interpretation, see 38 U.S.C. § 7252 (defining the jurisdiction of the Court of Veterans Appeals), which this court reviews de novo. Wick v. Brown, 40 F.3d 367, 370 (Fed. Cir. 1994).
Ledford argues that his APA and constitutional challenges to the Circular were properly brought before the Court of Veterans Appeals in the first instance and that these claims could not have been brought at the agency level, i.e., before the Seattle RO or the Board of Veterans Appeals, because the agency does not have the power to remedy such challenges. Ledford asserts that DVA regional offices and the Board are bound to follow VA circulars, regardless of their validity, and therefore that challenging the legality of the Circular at the agency stages of the veterans' benefits review process would have been futile. Ledford further asserts that his November 1991 NOD was sufficient to confer jurisdiction on the Court of Veterans ...