Fred Pride v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRED PRIDE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1212
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5729, Judge Joseph L. Toth.
______________________
Decided: September 20, 2021
______________________
F RED P RIDE, Huntsville, AL, pro se.
CHRISTOPHER L. HARLOW , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY , J R.,
ELIZABETH MARIE H OSFORD; CHRISTINA L YNN G REGG,
BRIAN D. G RIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
Case: 21-1212 Document: 24 Page: 1 Filed: 09/20/2021

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PRIDE v. MCDONOUGH 2
Before D YK, O’MALLEY , and HUGHES , Circuit Judges.
P ER CURIAM .
Fred Pride appeals a judgment of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
denying his request to reopen a 1987 service connection
claim for schizophrenia. See Pride v. Wilkie, No. 19-5729
(Vet. App. Sept. 29, 2020). Because we do not have juris-
diction to assess whether Mr. Pride’s evidence of service
connection was “new and material” and the Veterans Court
properly found it lacked jurisdiction to consider a clear and
unmistakable error (“CUE”) claim that had never been
filed, we dismiss in part and affirm in part.
I. BACKGROUND
Mr. Pride served in the United States Marine Corps
from 1966 to 1969, including a period of combat duty in Vi-
etnam. In 1984, he was hospitalized and diagnosed with
schizophrenia. Mr. Pride then filed a claim for service con-
nection for schizophrenia, which the VA Regional Office
(“RO”) denied in 1987 on grounds that there was no evi-
dence of a service connection to his schizophrenia. Mr.
Pride did not immediately appeal.
Two decades later, Mr. Pride was diagnosed with post-
traumatic stress disorder (PTSD). Mr. Pride filed a claim
for service connection for PTSD, which the VA RO in Mont-
gomery, Alabama granted in October 2009, awarding a
30% disability rating. Upon receiving this 30% rating, Mr.
Pride filed a claim with the Nashville, Tennessee VA RO
requesting a PTSD disability rating of 100% and a total
disability due to individual unemployability (“TDIU”)
award. The Nashville, Tennessee VA RO denied both
claims in January 2010. Mr. Pride appealed the Nashville,
Tennessee VA RO’s decision to the Board of Veterans’ Ap-
peals (“Board”).
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PRIDE v. MCDONOUGH 3
The Board consolidated the Montgomery and Nashville
VA RO decisions. The Board denied Mr. Pride’s request to
increase his PTSD disability rating to 100 percent, as well
as his TDIU claim. Mr. Pride appealed the Board’s deci-
sions to the Veterans Court. In February 2017, the Veter-
ans Court vacated and remanded these determinations,
finding the reasons and bases for their decisions “inade-
quate”; both currently remain in remand status.
In 2017, Mr. Pride initiated another Board proceeding
to challenge the Nashville VA RO’s decision. This time, Mr.
Pride sought to reopen his schizophrenia service connec-
tion claim that the VA denied in 1987. In 2019, the Board
denied this request, finding that the VA’s 1987 decision
was final and that Mr. Pride had not identified any new
and material evidence relating to an alleged service con-
nection to his schizophrenia diagnosis.
Mr. Pride appealed to the Veterans Court. At this
point, he argued not only that the VA’s 1987 decision
should be reopened, but that the 1984 diagnosis was incom-
plete or in error because it failed to recognize that he suf-
fered, at least in part, from PTSD. The court affirmed the
Board’s decision not to reopen Mr. Pride’s 1987 schizophre-
nia claim. The court first found no clear error in the
Board’s conclusion that Mr. Pride had presented no “new
and material evidence” relevant to this claim. The court
also noted that, to the extent Mr. Pride was suggesting that
he was misdiagnosed in 1984, it lacked jurisdiction over
that assertion because Mr. Pride had not properly raised it
to the Board in the form of a CUE claim.
Mr. Pride timely appeals.
II. D ISCUSSION
We may review the validity of a decision of the Veter-
ans Court “on a rule of law or of any statute or regula-
tion . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on by
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PRIDE v. MCDONOUGH 4
the Court in making the decision.” 38 U.S.C. § 7292(a). We
review the Veterans Court’s legal determinations de novo.
Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).
We may not review a challenge to a factual determination
or to a law or regulation as applied to the facts of a partic-
ular case, except to the extent that an appeal presents a
constitutional issue. 38 U.S.C. § 7292(d)(2); Cayat v. Ni-
cholson, 429 F.3d 1331, 1333 (Fed. Cir. 2005).
If a veteran fails to appeal a VA RO decision concerning
a claim for benefits, the decision becomes final. 38 U.S.C.
§ 7105(c). Relevant to this appeal, there are two statutory
exceptions to this finality rule. First, before Congress
passed statutory amendments in 2019, a veteran could re-
open a claim by submitting “new and material evidence”
under former 38 U.S.C. § 5108. See Kisor v. McDonough,
995 F.3d 1316, 1322 (Fed. Cir. 2021) (citations omitted).
Second, a final decision may also be revised based on CUE.
See id.; see also 38 U.S.C. §§ 5109A, 7111.
As discussed below, we do not reach the issue of
whether to reopen Mr. Pride’s 1987 schizophrenia service
connection claim for two reasons. First, as to his new and
material evidence claim, we have no jurisdiction to disturb
the Veterans Court’s order affirming the Board’s factual
determination under § 5108. And, as to his apparent mis-
diagnosis claim, we find that the Veterans Court correctly
dismissed any such claim because Mr. Pride failed to chal-
lenge his 1984 schizophrenia diagnosis on the basis of CUE
before the Board.
A. Mr. Pride’s schizophrenia service connection claim
We have previously vacated Veterans Court decisions
that improperly interpreted the statutory term “new and
material evidence.” We would clearly have the jurisdiction
to do the same in this case if the same type of error were
asserted.
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PRIDE v. MCDONOUGH 5
But that is not what Mr. Pride claims. Rather than
interpret the statutory term “new and material evidence,”
the Veterans Court reviewed the Board’s conclusion that
Mr. Pride’s reiteration of his mental illness (including his
current PTSD diagnosis) did not qualify as new and mate-
rial evidence of a service connection for schizophrenia. See
Pride, No. 19-5729 at *1–2. As this determination involves
an application of the statutory term “new and material ev-
idence” to the facts presented by Mr. Pride, we lack juris-
diction to review it. 38 U.S.C. § 7292(d)(2). While we
routinely try to construe the law liberally for veterans pur-
suing service-connected claims, we cannot relieve Mr.
Pride of his statutorily-imposed jurisdictional burden. See
Barnett v. Brown, 83 F.3d 1380, 1383–84 (Fed. Cir. 1996)
(holding that whether specific evidence presented by a vet-
eran is “new and material” involves either a factual deter-
mination or an application of law to facts). Because we lack
jurisdiction over this issue, we must dismiss it.1
B. Mr. Pride’s CUE claim
We also must affirm the Veterans Court’s finding that
it had no jurisdiction over Mr. Pride’s CUE claim. Mr.
Pride’s appellate brief suggests that, if he had been misdi-
agnosed with schizophrenia in 1984, he would be entitled
to an earlier effective date and a higher disability rating
for PTSD. See Appellant’s Br. at 18–19. This is not a viable
argument. Mr. Pride never actually filed a CUE claim be-
fore the Board, meaning we have no such claim available
for our review. In re Google Tech. Holdings LLC, 980 F.3d
858, 863 (Fed. Cir. 2020) (“We have regularly stated and
applied the important principle that a position not pre-
sented in the tribunal under review will not be considered
1 To the extent Mr. Pride asserts that a finding of
service connection for PTSD should suffice to justify a find-
ing of service connection for his schizophrenia diagnosis,
we find no support for such a logical leap in the record.
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PRIDE v. MCDONOUGH 6
on appeal in the absence of exceptional circumstances.”).
We therefore affirm the Veterans Court’s conclusion that it
lacked jurisdiction over this claim. Andre v. Principi, 301
F.3d 1354, 1361 (Fed. Cir. 2002) (“[E]ach ‘specific’ assertion
of CUE constitutes a claim that must be the subject of a
decision by the [Board] before the Veterans Court can ex-
ercise jurisdiction over it.”).
III. CONCLUSION
We have considered the remainder of Mr. Pride’s argu-
ments and find them unpersuasive. For the reasons dis-
cussed above, we lack jurisdiction over whether Mr. Pride
presented “new and material evidence” sufficient to reopen
his 1987 schizophrenia service connection claim and find
that the Veterans Court properly dismissed Mr. Pride’s
CUE claim for lack of jurisdiction. We accordingly dismiss
in part and affirm in part.
DISMISSED IN PART AND AFFIRMED IN PART
COSTS
No costs.
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