Modrowski v. McDonough

M
Case: 21-1079    Document: 20     Page: 1   Filed: 04/08/2021




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                LEON J. MODROWSKI,
                  Claimant-Appellant

                             v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                        2021-1079
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 19-2878, Chief Judge Margaret C.
 Bartley, Judge Amanda L. Meredith, Judge Coral Wong Pi-
 etsch.
                 ______________________

                   Decided: April 8, 2021
                  ______________________

    LEON J. MODROWSKI, Wilmington, NC, pro se.

     SARAH E. KRAMER, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 ERIC P. BRUSKIN, JEFFREY B. CLARK, ROBERT EDWARD
 KIRSCHMAN, JR.; MEGHAN ALPHONSO, Y. KEN LEE, Office of
Case: 21-1079    Document: 20     Page: 2    Filed: 04/08/2021




 2                                MODROWSKI   v. MCDONOUGH



 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
                 ______________________

     Before O’MALLEY, REYNA, and STOLL, Circuit Judges.
 PER CURIAM.
     Leon J. Modrowski appeals from a decision of the
 United States Court of Appeals for Veterans Claims (“Vet-
 erans Court”) affirming a decision of the Board of Veterans’
 Appeals (“Board”) denying Modrowski an annual clothing
 allowance for the 2017 calendar year. See Modrowski v.
 Wilkie, No. 19-2878, 

2020 WL 4356866

(Vet. App. July 30,
 2020). Because Modrowski raises only factual challenges,
 we dismiss for lack of jurisdiction.
                       I. BACKGROUND
      Modrowski served in the U.S. Army from October 1966
 to August 1968. For several years, he has received disabil-
 ity compensation benefits for residuals of prostate cancer,
 status post-radical prostatectomy. As a result of the pros-
 tatectomy, Modrowski experiences urinary drainage that
 causes rashes and chafing on his groin and thighs. Mo-
 drowski uses various over-the-counter creams on the im-
 pacted areas. He contends that, due to the nature of his
 condition and the creams, he must frequently wash his
 clothes, causing them to wear out at a faster-than-average
 pace.
     In July 2017, Modrowski applied for an annual clothing
 allowance for the 2017 calendar year pursuant to 38 C.F.R.
 § 3.810. In part relevant to this appeal, § 3.810 provides
 for an annual clothing allowance if the Under Secretary for
 Health or a designee certifies that “[a] veteran uses medi-
 cation prescribed by a physician for one skin condition,
 which is due to a service-connected disability, that causes
 irreparable damage to the veteran’s outergarments.”
 38 C.F.R. § 3.810(a)(1)(ii)(B). Modrowski’s request was
Case: 21-1079    Document: 20      Page: 3    Filed: 04/08/2021




 MODROWSKI   v. MCDONOUGH                                   3



 denied by the Department of Veterans Affairs’ (VA) Pros-
 thetic and Sensory Aids Service. 1
     Modrowski appealed to the Board. In June 2018, he
 submitted materials indicating that he was using a combi-
 nation bacitracin/polymyxin lotion. Months later, he told
 the Board that he had been informed that the VA viewed
 polymyxin as a staining lotion eligible for a clothing allow-
 ance. He thereafter submitted a letter from his physician
 indicating that he was a new patient and was using a com-
 bination bacitracin/polymyxin cream. The Board denied
 Modrowski’s claim for a 2017 clothing allowance in Febru-
 ary 2019. It found that Modrowski failed to present evi-
 dence that any physician had prescribed skin medication
 in 2017 for his service-connected prostate cancer residuals
 and concluded that Modrowski’s unsubstantiated claim of
 using polymyxin-containing lotion in 2017 was not credible
 because the record evidence indicated that Modrowski used
 Lotrimin AF and Desitin, neither of which contain poly-
 myxin, during that time frame. Modrowski appealed to the
 Veterans Court.
     On July 30, 2020, the Veterans Court affirmed the
 Board’s decision. The court began by noting, contrary to
 Modrowski’s assertions in briefing, that the appeal related
 only to a clothing allowance for 2017, not to an allowance
 for all years since. The court then explained that Mo-
 drowski cited no evidence of a prescription for treatment of
 a residual of a service-connected condition and that the rec-
 ord did not establish that any creams used by Modrowski
 during the relevant time would permanently stain or dam-
 age his clothes. The court acknowledged that Modrowski
 attempted to challenge the contents of the record before the
 agency (“RBA”), but found that Modrowski had failed to


     1   Modrowski’s claim was initially mischaracterized
 as prosthesis related. The Board and Veterans Court, how-
 ever, correctly treated it as medication related.
Case: 21-1079    Document: 20      Page: 4    Filed: 04/08/2021




 4                                 MODROWSKI   v. MCDONOUGH



 timely raise the issue. Pursuant to Veterans Court rules,
 an appellant must raise an RBA dispute within 14 days of
 the date on which the appellant is served with the RBA.
 U.S. Vet. App. R. 10(b). Modrowski had not filed any notice
 of dispute following service of the RBA on August 12, 2019
 or the amended RBA on February 20, 2020.
     Modrowski timely appealed to this court.
                         II. ANALYSIS
     Our jurisdiction to review Veterans Court decisions is
 limited. Wanless v. Shinseki, 

618 F.3d 1333

, 1336 (Fed.
 Cir. 2010). We have jurisdiction “to review and decide any
 challenge to the validity of any statute or regulation or any
 interpretation thereof . . . and to interpret constitutional
 and statutory provisions, to the extent presented and nec-
 essary to a decision.” 38 U.S.C. § 7292(c). Unless an appeal
 presents a constitutional issue, we cannot, however, “re-
 view (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.”

Id. § 7292(d)(2); Conway

v. Principi, 

353
F.3d 1369

, 1372 (Fed. Cir. 2004).
     Modrowski contends that the Veterans Court “incor-
 rectly interpreted 38 C.F.R. § 3.810—Clothing Allowance,
 specifically (a)(1)(ii)(B).” Appellant’s Br. at 1. He accu-
 rately observes that, to establish entitlement under the
 regulation, he was required to show: (1) “a service con-
 nected disability the treatment of which requires medica-
 tion”; (2) “[t]he medication [was] prescribed by a
 physician”; and (3) “[t]he medication . . . permanently dam-
 age[s] outerwear.”

Id. at 3

(discussing 38 C.F.R. § 3.810).
 He then argues that the factual record establishes that the
 Veterans Court erred in upholding the Board’s determina-
 tion that he failed to prove the required elements. He ar-
 gues that evidence from 2018 and beyond confirms his use
 of a polymyxin-containing cream.
Case: 21-1079    Document: 20       Page: 5   Filed: 04/08/2021




 MODROWSKI   v. MCDONOUGH                                   5



      Modrowski’s argument amounts not to a challenge to
 the Veterans Court’s interpretation of a regulation, but to
 a challenge to factual determinations or the application of
 the regulation to the facts of this case. The appeal thus
 falls outside the scope of our jurisdiction, and we must dis-
 miss.
                      III. CONCLUSION
     We have considered Modrowski’s remaining argu-
 ments and find them unpersuasive. For the reasons dis-
 cussed above, we dismiss this appeal for lack of
 jurisdiction. Because this appeal is limited to the denial of
 a clothing allowance for the 2017 calendar year, nothing in
 this case precludes any right Modrowski may have to pur-
 sue clothing allowances for subsequent years.
                        DISMISSED
                            COSTS
 No costs.

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