Samuel C. Coco v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SAMUEL C. COCO,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1743
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-7641, Senior Judge William A.
Moorman, Judge Grant Jaquith, Judge Joseph L. Toth.
______________________
Decided: November 9, 2023
______________________
S AMUEL C. COCO, University City, TX, pro se.
ROBERT R. K IEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, WILLIAM J AMES G RIMALDI, P ATRICIA M.
MCCARTHY .
______________________
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COCO v. MCDONOUGH 2
Before L OURIE, REYNA , and CHEN, Circuit Judges.
P ER CURIAM .
Samuel Coco, a pro se veteran, appeals a decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”). The Veterans Court affirmed the Board of
Veterans’ Appeals’ finding of no clear and unmistakable er-
ror in a rating decision denying Mr. Coco’s service-connec-
tion claim for tinnitus. Because we lack jurisdiction to
decide the issues that Mr. Coco raises, we dismiss his ap-
peal.
BACKGROUND
Mr. Coco served in the United States Air Force from
May 1980 to May 2000 as an aerospace ground equipment
craftsman. Coco v. McDonough, No. 20-7641, 2021 WL
6143647, at *1 (Vet. App. Dec. 30, 2021) (“Decision”). In
December 2003, Mr. Coco filed a claim seeking service con-
nection for tinnitus. Id. In a June 2004 rating decision,
the regional office denied his claim because there was no
in-service treatment record for tinnitus. Id. Mr. Coco did
not file an appeal challenging that denial. Id.
In February 2011, Mr. Coco filed another service-con-
nection claim for tinnitus. Id. In support, he submitted a
letter from his private physician. Id. After conducting an
examination, an examiner of the United States Depart-
ment of Veterans Affairs (“VA”) diagnosed Mr. Coco with
hearing loss and tinnitus. Id. The VA examiner opined
that Mr. Coco’s tinnitus condition was at least as likely as
not related to his in-service noise exposure. Id. Accord-
ingly, the regional office awarded Mr. Coco service connec-
tion for tinnitus, effective from February 2011. Id.
In 2012, Mr. Coco challenged the February 2011 effec-
tive date for tinnitus as well as the June 2004 rating deci-
sion denying his service-connection claim, contending that
the June 2004 decision contained clear and unmistakable
error (“CUE”). Id. at *2. His CUE claim was referred to
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COCO v. MCDONOUGH 3
the regional office, which found no CUE. Id. In a March
2019 decision, the Board of Veterans’ Appeals (“Board”)
concluded the same. Id. In reaching that conclusion, the
Board stated that the record at the time of the June 2004
rating decision was devoid of a tinnitus condition. Id.
On appeal, the Veterans Court determined that the
Board erroneously stated that the treatment records were
devoid of tinnitus. Id. at *2. The Veterans Court pointed
out that the record documented a March 1994 examination
where Mr. Coco stated he would experience ringing in his
ears “when [it was] real quiet.” Id. at *1, *2. The Veterans
Court thus remanded Mr. Coco’s CUE claim to the Board
for readjudication.1 Id. at *2.
On remand, after examining conflicting evidence in the
record, the Board again found no CUE in the June 2004
rating decision. Id. at *3–4. The Board took into account
the 1994 examination indicating Mr. Coco experienced
ringing in ears, as well as Mr. Coco’s lay statements that
he believed he experienced tinnitus during service. Id. at
*3. The Board also considered the remainder of the con-
temporaneous records, including every subsequent in-ser-
vice examination where Mr. Coco denied hearing ringing in
his ears. Id. Weighing the conflicting evidence, the Board
concluded that reasonable minds could have differed as to
whether the record evidenced an in-service onset for
1 The Veterans Court also addressed several other
claims Mr. Coco raised, including his claim for a higher rat-
ing for tinnitus, and his service-connection claim for
Meniere’s disease. Decision, at *2. The Veterans Court af-
firmed the Board’s denial of Mr. Coco’s claim for a higher
rating for tinnitus because he had already received the
maximum disability rating allowed for that condition. Id.
As to his Meniere’s disease claim, the Veterans Court ex-
plained that because the Board had remanded that claim,
it was not properly before the Veterans Court. Id.
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COCO v. MCDONOUGH 4
Mr. Coco’s tinnitus condition, and as such, the record did
not support a finding of CUE. Id. at *3–4.
Mr. Coco again appealed to the Veterans Court. The
Veterans Court affirmed the Board’s no-CUE finding. Id.
at *5. The Veterans Court explained that, given the con-
flicting evidence, the Board “plausibly found that reasona-
ble minds could have differed as to whether the appellant
suffered from chronic tinnitus in service.” Id. at *4. The
Veterans Court declined to reach the other matters
Mr. Coco raised, including his claims for service connection
for Meniere’s disease and increased disability ratings for
various conditions. Id. The Veterans Court explained that
it lacked jurisdiction over those matters because they were
not addressed by the underlying Board’s decision. Id.
This appeal followed.
STANDARD OF REVIEW
Our jurisdiction in cases from the Veterans Court is
limited by statute. Wanless v. Shinseki, 618 F.3d 1333,
1336 (Fed. Cir. 2010). We may “decide all relevant ques-
tions of law, including interpreting constitutional and stat-
utory provisions.” 38 U.S.C. § 7292(d)(1). However, absent
a constitutional issue, we “may not review (A) a challenge
to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” Id.
§ 7292(d)(2). “Although the veterans benefits adjudication
system is nonadversarial and paternalistic,” to move for-
ward with a claim for benefits, the veteran bears the ulti-
mate burden to show jurisdiction. Butler v. Principi,
244 F.3d 1337, 1340 (Fed. Cir. 2001) (citations omitted).
D ISCUSSION
On appeal, Mr. Coco raises three issues. He primarily
takes issue with the Veterans Court’s affirmance of the
Board’s finding of no CUE in the June 2004 rating decision.
See Appellant Informal Br. 1–2; see also Reply Br. 2–4.
Mr. Coco’s briefing also references several claims the
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COCO v. MCDONOUGH 5
Veterans Court declined to address for lack of jurisdiction.
Appellant Informal Br. 1–2. Lastly, Mr. Coco characterizes
his arguments as constitutional violations. Id. We address
each issue in turn.
First, Mr. Coco’s CUE argument reduces to a factual
challenge that falls outside of our jurisdiction. Mr. Coco
disagrees with the Board’s no-CUE finding on remand from
the Veterans Court. According to Mr. Coco, the Veterans
Court’s affirmance of the Board’s no-CUE finding was “con-
trary” to its previous remand decision. See id. at 2; see also
Reply Br. at 3. We disagree.
A remand from the Veterans Court does not equate to
a mandate that the Board must reach a contrary conclu-
sion. To constitute CUE, an alleged error made by the
agency must have been “outcome determinative.” Natali v.
Principi, 375 F.3d 1375, 1382 (Fed. Cir. 2004) (citations
omitted). In other words, the error must have been the
type “that would manifestly change the outcome of a prior
decision.” Id. (citation omitted). On remand from the Vet-
erans Court, the Board considered the 1994 examination
referencing ringing in the ears, which was the key contra-
dictory evidence resulting in the remand. The Board ac-
counted for that evidence, as well as Mr. Coco’s lay
testimony, but found them insufficient to support a finding
of CUE given contrary evidence in the record. See Decision,
at *3–4. Applying the correct legal standard, the Board de-
termined that the record at the time of the June 2004 rat-
ing decision, considered as a whole, did not support finding
that any outcome-determinative error had been made by
the agency in its rating decision.
Although Mr. Coco disagrees with the Board’s no-CUE
conclusion, he does not identify any legal error in the
Board’s or the Veterans Court’s decision. Nor does his
claim involve the Veterans Court’s interpretation of a
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COCO v. MCDONOUGH 6
statute.2 His contention requires this court to entertain a
challenge to a factual determination and how the Board ap-
plied established law to facts. Such a challenge, however,
falls outside of this court’s jurisdiction. Newhouse v. Ni-
cholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (“Our juris-
dictional statute precludes appellate review of factual
matters and the application of law to facts.”); see also
38 U.S.C. § 7292(d)(2).
Second, we reject Mr. Coco’s attempt to reassert on ap-
peal his claims that the Veterans Court declined to address
for lack of jurisdiction. See Appellant Informal Br. 2 (ref-
erencing his claims to service connection for Meniere’s syn-
drome and higher disability rating for various conditions).
The Veterans Court is statutorily prohibited from “making
factual findings in the first instance” or adjudicating claims
that the Board’s decision did not address. Andre v. Prin-
cipi, 301 F.3d 1354, 1362 (Fed. Cir. 2002) (citation omitted).
As the Veterans Court explained, its jurisdiction was “lim-
ited to review of final Board decisions” and the Board’s de-
cision on appeal only addressed Mr. Coco’s CUE claim, not
2 Mr. Coco’s citation to Dittrich v. West, 163 F.3d
1349 (Fed. Cir. 1998) is unavailing. Mr. Coco appears to
rely on this case for the proposition that the law does not
“authorize a regional office to review collaterally an earlier
Board decision on the same operative facts.” Reply Br. 4.
In Dittrich, this court discussed a then-recent change in the
law and explained that it allows “only the Board itself, not
a regional office, to conduct CUE review of its prior deci-
sions.” Dittrich, 163 F.3d at 1352–53; id. at 1353 (“Nothing
in title 38 or elsewhere authorizes a regional office to re-
view decisions of the Board.”). Here, on remand from the
Veterans Court, it was the Board that conducted CUE re-
view of its prior decision, not the regional office. We dis-
cern no conflict with the law, and Mr. Coco does not identify
any.
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COCO v. MCDONOUGH 7
the other claims. Decision, at *4. We discern no error in
the Veterans Court’s analysis that it lacked jurisdiction to
consider those other claims.
Lastly, Mr. Coco’s characterization of his arguments as
constitutional does not cure the jurisdictional deficiency.
Mr. Coco’s informal briefing alleges the Veterans Court’s
decision is “contrary [to] Article III of the U.S. Constitu-
tion.” Appellant Informal Br. 1–2. Even liberally con-
strued, as we read pro se filings like this, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), Mr. Coco merely labels his
contentions as constitutional and does not raise any dis-
crete constitutional issue. However, labeling an issue as
constitutional “does not confer upon us jurisdiction that we
otherwise lack.” Helfer v. West, 174 F.3d 1332, 1335 (Fed.
Cir. 1999).
CONCLUSION
We have considered Mr. Coco’s remaining arguments
and find them unpersuasive. Accordingly, the appeal is
dismissed for lack of jurisdiction.
DISMISSED
COSTS
No costs.
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