Before Newman, Lourie, and Kelly, *fn1 * Circuit Judges.
The opinion of the court was delivered by: Lourie, Circuit Judge.
Appealed from: United States Court of Appeals for Veterans Claims Judge John J. Farley, III
Opinion by the court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit Judge NEWMAN.
Jasper Boggs, Jr., appeals from the decision of the United States Court of Appeals for Veterans Claims affirming the denial of his claim for service connection. See Boggs v. West, 11 Vet. App. 334 (1998). Because Boggs improperly presents this court with an argument of statutory construction that was not presented to the Court of Appeals for Veterans Claims, we affirm.
During the period from 1963 to 1966, veteran Boggs had been treated at several Veterans Administration (VA) hospitals where he was diagnosed as suffering from anxiety, depression, hysteria, inadequate personality, below normal intelligence, and alcoholism. In 1967, while seeking treatment in a VA hospital for a peptic ulcer, Boggs consented to an experimental LSD treatment. Boggs was subsequently diagnosed as having chronic anxiety, schizophrenia, and a temporal lobe disorder.
In 1983, Boggs filed a claim for compensation at a VA Regional Office (RO) seeking service connection for the LSD treatments he received while hospitalized. The RO denied Boggs' claim, concluding that the LSD treatments did not cause or aggravate Boggs' psychiatric problems. The Board of Veterans' Appeals affirmed the denial. In December 1993, Boggs attempted to reopen his claim for compensation for the LSD treatment pursuant to 38 U.S.C. § 1151. At the time, *fn2 that statute stated in relevant part that:
Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, . . . and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation . . . shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C. § 1151 (1988 & Supp. V 1993). The RO again denied Boggs' claim, concluding that the new evidence that Boggs had submitted did not suggest that the LSD treatment caused a progressive disorder of his nervous system. The Board again affirmed, finding that compensation was not allowable under § 1151 because Boggs did not suffer an injury as a result of his 1967 LSD treatment. The Court of Appeals for Veterans Claims affirmed, holding that there was a plausible basis in the record for the Board's factual Conclusion.
Boggs appealed the denial of service connection to this court.
Our jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. We may, inter alia, "interpret . . . statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c) (1994). However, unless a constitutional issue is presented, we may not review factual determinations or the application of law to a particular set of facts. See id. § 7292(d)(2). We therefore cannot review and must accept as definitive the Conclusion that Boggs did not suffer injury as a result of the LSD treatments he received while hospitalized.
Recognizing our limited standard of review, instead of making a fact-based argument, Boggs argues to us that the Court of Appeals for Veterans Claims misinterpreted 38 U.S.C. § 1151. According to Boggs, it is not necessary for a claimant seeking compensation thereunder to show that the hospitalization or treatment caused the injury complained of. Instead, Boggs asserts that the mere temporal coincidence of the hospitalization or treatment and the injury is sufficient. The government responds that Boggs did not raise this argument of statutory interpretation in the Court of Appeals for Veterans Claims, and that it may therefore not do so here.
We agree with the government. We have reviewed the brief that Boggs submitted to the Court of Appeals for Veterans Claims, and it is clear that in that court Boggs only argued the factual issue whether the LSD caused his psychiatric injuries. Thus, Boggs' brief stated that "the issue at hand is simply whether the LSD treatment administered by the VA either caused or aggravated the veteran's psychiatric disability." J.A. at A27. Moreover, Boggs summarized his argument as follows: "The Board's reasons for dismissing the substantial evidence in support of the veteran's claim are insufficient. When the evidence in favor of the veteran is given proper weight, the preponderance of the evidence supports the veteran's claim." Id. at A26.
Nowhere in Boggs' brief did he raise in the court below the "temporal coincidence" theory of statutory interpretation that he currently raises on appeal here. Nor did the Court of Appeals for Veterans Claims make reference to or decide this issue. As a general rule, an appellate court will not hear on appeal issues that were not clearly raised in the proceedings below. See Singleton v. Wulff, 428 U.S. 106, 120 (1976); Braun, Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 821 (Fed. Cir. 1992). This rule ensures that "parties may have the opportunity to offer all the evidence they believe relevant to the issues . . . [and] in order that litigants may not ...