Timothy A. Fisher v. JAMES B. PEAKE, M.D., Secretary of Veterans Affairs

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-7363
TIMOTHY A. FISHER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.
Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil Division, of
Washington, DC, argued for respondent-appellee. On the brief were Peter D. Keisler,
Assistant Attorney General and Deborah A. Bynum, Assistant Director. Of counsel on the
brief were Michael J. Timinski, Deputy Assistant General Counsel, and Y. Ken Lee,
Attorney, United States Department of Veterans Affairs. Of counsel was Amanda R.
Blackmon, Attorney.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-7363
TIMOTHY A. FISHER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 03-1962, Chief Judge
William P. Green, Jr.
__________________________
DECIDED: January 17, 2008
_________________________
Before MAYER, RADER, Circuit Judges, and GARBIS, District Judge.*
PER CURIAM.
Timothy A. Fisher (“Fisher”) appeals a June 6, 2006 decision by the United States
Court of Appeals for Veterans Claims ("Veterans Court"), which affirmed the Board of
Veterans Affairs’ ("Board") dismissal of Fisher's request for revision of a 1998 Board decision
because that decision had been affirmed by the Veterans Court in 1999. Joint App’x at 1-3.
We affirm.
_____________________
* Honorable Marvin Garbis, Senior District Judge, United States District Court, sitting
by designation.

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Fisher served on active military duty from April 1969 to April 1971. In 1984, he was
awarded compensation for disability resulting from post-traumatic stress disorder with an
initial rating of 30%. Fisher v. Nicholson, 21 Vet. App. 96, *2 (U.S. App. Vet. Cl. 2006). In
September 1986, the Regional Office of the Department of Veterans Affairs (“RO”) continued
his 30% rating. Id. The instant appeal pertains to Fisher's efforts to revise the September
1986 decision ("the 1986 Decision") by the RO, which denied an increase from a 30% rating.
This court reviews de novo legal issues on appeal from the Veterans Court. Andre v.
Principi, 301 F.3d 1354, 1358 (Fed. Cir. 2002). In contrast, we do not review the Veterans
Court’s factual determinations or its application of the law to the facts of a particular case in
the absence of a constitutional issue. 38 U.S.C. § 7292(d)(2).
In the instant case, the following chronology sets forth the pertinent procedural steps:
April, 1995 RO awarded Fisher a 100% rating effective only from November
1991.
August, 1995 Fisher requested revision of the 1986 RO Decision on fact-based
grounds.
January, 1996 RO denied the request.
March, 1998 Board denied Fisher's appeal from the RO ("the 1998 Decision").
September, 1999 Veterans Court affirmed Board's 1998 Decision. Fisher, 21 Vet.
App. 96, at *2-3.
August, 2002 Fisher filed a motion with the Board to vacate the 1998 Decision
on the basis of a new theory of clear and unmistakable error
(“CUE”).
August, 2003 Board dismissed Fisher's motion because the 1998 Decision had
been appealed to the Veterans Court.
June, 2006 Veterans Court affirmed the Board's dismissal.
The Veterans Court correctly decided that Fisher could not seek to have the Board
revise its 1998 Decision after that decision had been affirmed by the Veterans Court. See
2006-7363 2

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2006-7363 3
Disabled Am. Veterans v. Gober, 234 F.3d 682, 693 (Fed. Cir. 2000) ("If a superior court,
such as the Court of Appeals for Veterans Claims, affirms the determination of the Board on
that issue, that Board decision is replaced by the Court of Appeals for Veterans Claims’
decision on that issue. Thus, there is no longer any ‘decision by the Board that [can be]
subject to revision.'") Therefore, the Veterans Court properly affirmed the Board, and we
must affirm the Veterans Court.
Fisher is not, however, precluded from pursuing his ultimate objective: the revision of
the 1986 Decision for CUE. As Respondent agreed at argument, Fisher can, at any time,
directly seek revision of the 1986 Decision by means of a "CUE" claim filed with the
Department of Veterans Affairs. 38 U.S.C. § 7111(d) (2000); see also Morris v. Principi, 239
F.3d 1292 (Fed. Cir. 2001).
Accordingly, the Court affirms the decision of the Veterans Court without prejudice to
the right of Fisher to pursue a CUE claim to seek revision by the RO of the 1986 Decision.
No costs.

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