Lamar Berry v. Robert Wilkie, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

LAMAR BERRY,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2020-1610
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-5579, Senior Judge William A.
Moorman.
______________________

Decided: July 10, 2020
______________________

L
AMAR BERRY, Austin, TX, pro se.

MARIANA TERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by E
THAN P. DAVIS, ELIZABETH MARIE HOSFORD,
ROBERT EDWARD KIRSCHMAN, JR.
______________________

Case: 20-1610 Document: 16 Page: 1 Filed: 07/10/2020

BERRY v. WILKIE
2
Before MOORE, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
Lamar Berry appeals a United States Court of Appeals
for Veterans Claims (Veterans Court) decision dismissing
his clear and unmistakable error (CUE) claims for lack of
jurisdiction, and affirming the Board of Veterans Appeals’
refusal to reopen his claims for service connection. Berry
v. Wilkie, No. 18-5579, 2019 WL 4892225 (Vet. App. Octo-
ber 4, 2019). Because we conclude that the Veterans Court
properly dismissed the CUE claims, and because we lack
jurisdiction to review the Veterans Court’s decision regard-
ing reopening the service connection claims, we affirm in
part and dismiss in part.
B
ACKGROUND
Mr. Berry served on active duty in the U.S. Army from
October 1972 to October 1975. S.A. 14. Starting in Novem-
ber 1976, Mr. Berry filed several benefits claims for service
connection for headaches, back and stomach conditions,
and prostate cancer. Id. at 2–3, 14–15. The regional office
(RO) denied the claims, and the decisions became final
when Mr. Berry did not appeal. Mr. Berry sought to reopen
his claims, but the RO denied his request, finding Mr.
Berry did not provide new and material evidence to support
reopening.
Mr. Berry filed a notice of disagreement alleging CUE
in the previous rating decisions. In response, the RO is-
sued a statement of the case denying Mr. Berry’s request
to reopen his claims. The RO also issued a deferred rating
decision acknowledging that Mr. Berry submitted CUE
claims, but noting that he did not submit the proper forms.
Id. Mr. Berry did not take any action after the RO sent
him a letter instructing him to submit the claims using the
proper forms and to respond within 30 days. Id. at 15–16.
Instead, Mr. Berry appealed the denial of his reopen re-
quests to the Board. The Board denied reopening those
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BERRY v. WILKIE
3
claims because Mr. Berry did not submit new and material
evidence. Id. at 2–11. The Board did not, however, address
Mr. Berry’s CUE claims.
Mr. Berry appealed the Board’s decision to the Veter-
ans Court. Id. at 16–17. The Veterans Court affirmed the
Board’s decision denying the request to reopen claims be-
cause Mr. Berry did not identify “any new evidence submit-
ted that raised a reasonable possibility of substantiating
any of his claims on appeal.” Id. at 17. Additionally, the
Veterans Court dismissed Mr. Berry’s CUE claim after de-
termining that it lacked jurisdiction to consider CUE
claims the Board did not address. Mr. Berry appeals.
DISCUSSION
Our jurisdiction is limited when reviewing Veterans
Court decisions. We have jurisdiction “to review and decide
any challenge to the validity of any statute or regulation or
any interpretation thereof . . . and to interpret constitu-
tional and statutory provisions, to the extent presented and
necessary to a decision.” 38 U.S.C. § 7292(c). Except to the
extent an appeal raises a constitutional issue, we may not
review “a challenge to a factual determination, or [] a chal-
lenge to a law or regulation as applied to the facts of a par-
ticular case.” 38 U.S.C. § 7292(d)(2). “The jurisdictional
reach of the Veterans Court presents a question of law for
our plenary review.” Maggitt v. West, 202 F.3d 1370, 1374
(Fed. Cir. 2000)
The Veterans Court correctly held that it lacked juris-
diction over Mr. Berry’s CUE claim. A CUE claim “must
be the subject of a decision by the [Board] before the Veter-
ans Court can exercise jurisdiction over it.” Andre v. Prin-
cipi, 301 F.3d 1354, 1361 (Fed. Cir. 2002). The Veterans
Court found that Mr. Berry’s CUE claim was not part of
the Board’s decision, a factual finding we lack jurisdiction
to review. See Comer v. Peake, 552 F.3d 1362, 1372 (Fed.
Cir. 2009) (“Whether a veteran has raised a particular
claim is a factual determination, outside the purview of our
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BERRY v. WILKIE
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appellate authority.”). We therefore affirm the Veterans
Court’s determination that it lacked jurisdiction over Mr.
Berry’s CUE claim.
We lack jurisdiction to review Mr. Berry’s challenge to
the Veterans Court’s affirmance of the Board’s denial of his
request to reopen his disability claims. “[T]he question of
whether evidence in a particular case is ‘new and material’
is either a ‘factual determination’ under section
7292(d)(2)(A) or the application of law to ‘the facts of a par-
ticular case’ under section 7292(d)(2)(B) and is, thus, not
within this court’s appellate jurisdiction.” Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Accordingly,
we dismiss Mr. Berry’s challenge to this finding for lack of
jurisdiction.
C
ONCLUSION
We have considered Mr. Berry’s remaining arguments,
but find them to be unpersuasive or beyond our jurisdiction
to review. For the reasons above, we affirm in part the
Veterans Court’s decision and dismiss in part the appeal.
AFFIRMED
IN PART AND DISMISSED IN PART
COSTS
No costs.
Case: 20-1610 Document: 16 Page: 4 Filed: 07/10/2020