Byron R. Fisher v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BYRON R. FISHER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1119
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-7609, Judge Joseph L. Falvey
Jr.
______________________
Decided: April 5, 2023
______________________
BYRON F ISHER, Peekskill, NY, pro se.
P ATRICK ANGULO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON , ERIC P. BRUSKIN, P ATRICIA M.
MCCARTHY ; AMANDA BLACKMON, BRIAN D. G RIFFIN, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 23-1119 Document: 17 Page: 1 Filed: 04/05/2023

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FISHER v. MCDONOUGH 2
______________________
Before L OURIE, T ARANTO, and STARK, Circuit Judges.
P ER CURIAM .
Byron R. Fisher, a veteran of the U.S. Army, appeals a
decision of the United States Court of Appeals for Veterans
Claims (“Veterans Court”). The Veterans Court dismissed
Fisher’s appeal of a decision of the Board of Veterans’ Ap-
peals (“Board”) that denied Fisher earlier effective dates
for his disabilities. Because Fisher’s arguments are beyond
the limited jurisdiction of our court, we dismiss the appeal.
I
Fisher served in the U.S. Army from July 1999 to Feb-
ruary 2002 and from June 2006 to October 2010. In 2010,
Fisher filed a pre-discharge benefits claim seeking service
connection for, among other things, a skin condition, a left
ankle condition, and a swollen left foot. In a decision dated
November 23, 2010 (“2010 Decision”), a Department of Vet-
erans Affairs (“VA”) regional office (“RO”) denied service
connection for the skin condition and the left ankle condi-
tion and granted service connection for left foot pes planus
with a 0 percent rating, effective October 20, 2010.1 Fisher
did not appeal this decision and it became final.
On March 3, 2021, Fisher filed a disability claim for ve-
nous insufficiency, a left ankle condition, a left foot condi-
tion, and eczema in both hands. Later that month, on
March 23, 2021, Fisher filed a supplemental claim seeking
benefits for edema in his left foot and ankle, eczema, and
pes planus. In April 2021, the RO increased the disability
rating for Fisher’s pes planus to 20 percent, effective March
3, 2021, and granted service connection for venous
1 A medical examiner diagnosed Fisher’s swollen left
foot as pes planus.
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FISHER v. MCDONOUGH 3
insufficiency (claimed as edema in the left foot and ankle),
assigning a 10 percent disability rating effective March 23,
2021. Shortly after, in May 2021, the RO granted service
connection for dermatitis (claimed as eczema) with a 60%
disability rating effective March 23, 2021. Fisher filed a
notice of disagreement with the rating decisions of April
2021 and May 2021, seeking earlier effective dates for his
left foot pes planus, venous insufficiency, and skin condi-
tion.
In October 2021, the Board issued two decisions. The
Board found that Fisher first claimed his dermatitis (also
claimed as a skin condition and eczema) and venous insuf-
ficiency (also claimed as edema in the left foot and ankle)2
on March 3, 2021, so this was the earliest proper effective
date for those disabilities. The Board observed that, while
Fisher had also claimed these disabilities before leaving ac-
tive duty in October 2010, the RO had denied service con-
nection for those conditions in the 2010 Decision, which
became final when Fisher did not appeal it. Therefore,
Fisher’s 2010 claim could not serve as a basis for an earlier
effective date. As for the left foot pes planus, the Board
found Fisher failed to allege that the 2010 Decision con-
tained a clear and unmistakable error (“CUE”), as would
be required to obtain revision or reversal of a final decision.
Accordingly, the Board dismissed this portion of the ap-
peal.
Fisher appealed the Board’s decisions to the Veterans
Court. In August 2022, the Veterans Court agreed with the
Board that “the only way for Fisher to seek earlier dates
for his disabilities based on his 2010 claim would be to al-
lege that the final November 2010 decision contained
2 The Board also construed Fisher’s March 3, 2021
claim for a left ankle condition as a claim for venous insuf-
ficiency.
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FISHER v. MCDONOUGH 4
CUE.” S.A. 4.3 Fisher, however, failed to raise the CUE
issue before the Board, and he could not raise it for the first
time at the Veterans Court. Thus, the Veterans Court dis-
missed Fisher’s appeal.
II
We have exclusive, but limited, jurisdiction to re-
view decisions of the Veterans Court. See 38 U.S.C.
§ 7292(c); Sullivan v. McDonald, 815 F.3d 786, 788-89
(Fed. Cir. 2016). “We may review legal questions, includ-
ing the validity of any statute or regulation or any inter-
pretation thereof.” Sullivan, 815 F.3d at 788-89. Such
legal determinations are reviewed de novo. See Cushman
v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009). We may
not, however, review (1) “a challenge to a factual determi-
nation” or (2) “a challenge to a law or regulation as applied
to the facts of a particular case,” unless the challenge pre-
sents a constitutional issue. 38 U.S.C. § 7292(d)(2).
Fisher’s appeal does not present any issue within the
scope of our jurisdiction. Fisher first challenges the 2010
Decision’s finding that he did not have chronic swelling in
his left foot and ankle. See Appellant’s Br. at 1. This ar-
gument presents an issue of fact which we lack jurisdiction
to review. In the 2010 Decision, the RO explicitly discussed
the medical records from September 2009 and March 2008
documenting the swelling of Fisher’s left foot and ankle, see
S.A. 51, 53, and we lack jurisdiction to review the weight
given to them, see Goodman v. Shulkin, 870 F.3d 1383,
1386 (Fed. Cir. 2017).
Second, Fisher argues his 2010 medical examination
involved CUE because the RO “stat[ed] that [Fisher’s] skin
was healthy based solely on a summer examination, de-
spite acknowledging that the Appellant’s eczema started
3 “S.A.” refers to the Supplemental Appendix filed
with the Secretary’s brief.
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FISHER v. MCDONOUGH 5
during the winter.” Appellant’s Br. at 2. This contention,
too, presents an issue of fact which we lack jurisdiction to
review. See Prinkey v. Shinseki, 735 F.3d 1375, 1382-83
(Fed. Cir. 2013).
Finally, Fisher argues that VA violated 18 U.S.C.
§§ 1001 and 1519 because a medical examiner allegedly
submitted false documents to the VA. See Appellant’s Br.
at 1; Reply Br. at 1. Fisher identifies no express or implied
reliance by the Veterans Court on a misinterpretation of
these provisions in its decision. Further, Fisher did not ad-
equately present this argument to the Veterans Court. See
Carbino v. West, 168 F.3d 32, 35 (Fed. Cir. 1999) (“[T]he
Court of Veterans Appeals properly declined to consider . .
. untimely contentions” “raised for the first time in a reply
brief.”). It is, therefore, forfeited. See Emenaker v. Peake,
551 F.3d 1332, 1337 (Fed. Cir. 2008) (“[W]ith limited ex-
ceptions, appellate courts do not consider issues that were
not raised in the tribunal from which the appeal is taken,
and we have held that those general principles of appellate
practice apply in the context of appeals from the Veterans
Court.”).
III
We have considered Fisher’s remaining arguments and
find them unpersuasive. For the reasons given, we dismiss
Fisher’s appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
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