Darren L. Deflanders v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DARREN L. DEFLANDERS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1074
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-2263, Judge Grant Jaquith.
______________________
Decided: July 16, 2024
______________________
D ARREN L. D EF LANDERS , Ocean Spring, MS, pro se.
K YLE SHANE B ECKRICH , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, P ATRICIA
M. MCCARTHY .
______________________
Case: 24-1074 Document: 54 Page: 1 Filed: 07/16/2024

-- 1 of 4 --

DEFLANDERS v. MCDONOUGH 2
Before M OORE, Chief Judge, CUNNINGHAM , Circuit Judge,
and MAZZANT , District Judge.1
P ER CURIAM .
Darren L. DeFlanders appeals a decision from the
United States Court of Appeals for Veterans Claims (Vet-
erans Court) dismissing his appeal for lack of jurisdiction.
We affirm-in-part and dismiss-in-part.
BACKGROUND
Mr. DeFlanders served in the United States Army from
August 1989 until June 1996. S. Appx. 7.2 On February 6,
2023, the Board of Veterans’ Appeals (Board) issued a de-
cision granting some of Mr. DeFlanders’ claims and deny-
ing others. S. Appx. 5–21. On February 16, 2023, Mr.
DeFlanders filed a motion for reconsideration of the Board
decision. S. Appx. 24. On April 13, 2023, Mr. DeFlanders
filed a notice of appeal with the Veterans Court contesting
the Board’s February 6 decision. S. Appx. 1.
The Secretary of Veterans Affairs moved to dismiss Mr.
DeFlanders’ appeal. The Veterans Court granted the mo-
tion and dismissed the appeal for lack of jurisdiction.
S. Appx. 1–2. Mr. DeFlanders appeals.
D ISCUSSION
We have jurisdiction to review “the validity of a deci-
sion of the [Veterans] Court on a rule of law or of any stat-
ute or regulation . . . or any interpretation thereof (other
than a determination as to a factual matter) that was relied
on by the [Veterans] Court in making the decision.” 38
U.S.C. § 7292(a). Whether the Veterans Court lacks
1 Honorable Amos L. Mazzant, III, District Judge,
United States District Court for the Eastern District of
Texas, sitting by designation.
2 “S. Appx.” refers to the Supplemental Appendix at-
tached to Respondent’s Informal Brief.
Case: 24-1074 Document: 54 Page: 2 Filed: 07/16/2024

-- 2 of 4 --

DEFLANDERS v. MCDONOUGH 3
jurisdiction is an issue of statutory construction, see 38
U.S.C. § 7252, which we review de novo. Howard v. Gober,
220 F.3d 1341, 1343 (Fed. Cir. 2000). Absent a constitu-
tional issue, we may not review challenges to factual find-
ings or to the application of a law or regulation to facts. 38
U.S.C. § 7292(d)(2). The Veterans Court has jurisdiction to
review “decisions” of the Board. 38 U.S.C. § 7252(a). This
jurisdiction is limited to final decisions that are adverse to
the claimant. 38 U.S.C. § 7266(a). If the Board has not
rendered a decision on a claim, that claim is outside of the
Veterans Court’s jurisdiction. Ledford v. West, 136 F.3d
776, 779 (Fed. Cir. 1998).
To appeal a Board decision, a claimant must file a no-
tice of appeal with the Veterans Court within 120 days of
entry of the Board’s final judgment. 38 U.S.C. § 7266(a).
When a motion for reconsideration is filed within that pe-
riod, the Board decision is no longer final. Linville v. West,
165 F.3d 1382, 1386 (Fed. Cir. 1999). If the motion for re-
consideration is denied, a new 120-day period begins for a
claimant to file a notice of appeal. See id.
Mr. DeFlanders argues the Veterans Court wrongly
dismissed his appeal. Informal Br. of Appellant 1. The
Veterans Court dismissed Mr. DeFlanders’ appeal for lack
of jurisdiction because his pending motion for reconsidera-
tion rendered the Board decision non-final. S. Appx. 1–2.
Mr. DeFlanders’ motion for reconsideration tolls the time
limit for filing an appeal to the Veterans Court. Linville,
165 F.3d at 1386. Until the Board renders a decision on
Mr. DeFlanders’ motion for reconsideration, the Veterans
Court does not have a final Board decision to review. See
38 U.S.C. § 7266(a). The Veterans Court’s dismissal for
lack of jurisdiction was therefore proper.
Mr. DeFlanders’ remaining arguments are outside our
jurisdiction. To the extent Mr. DeFlanders contests the
merits of the Board’s February 6 decision, it is outside the
scope of our review. We may not review challenges to fac-
tual findings or to the application of a law or regulation to
facts. See 38 U.S.C. § 7292(d)(2). Mr. DeFlanders states
Case: 24-1074 Document: 54 Page: 3 Filed: 07/16/2024

-- 3 of 4 --

DEFLANDERS v. MCDONOUGH 4
the Veterans Court decision raises a constitutional issue,
but his argument relates to the Veterans Court’s applica-
tion of its jurisdictional statute. Informal Br. of Appellant
1. Mr. DeFlanders’ mention of due process does not suffice
to raise a constitutional issue within our jurisdiction. See
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (“[The
appellant’s] characterization of [a] question as constitu-
tional in nature does not confer upon us jurisdiction that
we otherwise lack.”). We therefore dismiss Mr. DeFlan-
ders’ other claims.
As the Veterans Court explained, this appeal does not
exhaust Mr. DeFlanders’ opportunities for review of the
Board’s February 6 decision. If Mr. DeFlanders’ motion for
reconsideration is denied, he can appeal the denial in con-
nection with the underlying Board decision by filing a new
notice of appeal with the Veterans Court within 120 days
of the denial.3 See Mayer v. Brown, 37 F.3d 618, 620 (Fed.
Cir. 1994).
CONCLUSION
We have considered Mr. DeFlanders’ remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Veterans Court’s dismissal for lack of
jurisdiction and dismiss the appeal as to the other issues.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.
3 Mr. DeFlanders can check the status of his motion for
reconsideration at https://www.va.gov/claim-or-appeal-sta-
tus/.
Case: 24-1074 Document: 54 Page: 4 Filed: 07/16/2024

-- 4 of 4 --