Lamar Berry v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAMAR BERRY,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2025-1163
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 24-2983, Judge Michael P. Allen.
______________________
Decided: March 3, 2025
______________________
LAMAR BERRY, Austin, TX, pro se.
VIJAYA SURAMPUDI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON , PATRICIA M. MC CARTHY, LOREN MISHA
PREHEIM; MATTHEW ALBANESE, D EREK SCADDEN , Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
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BERRY v. COLLINS 2
Before D YK, CUNNINGHAM , and S TARK, Circuit Judges.
PER CURIAM .
Lamar Berry appeals from an order of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”). Berry v. McDonough, No. 24-2983, 2024 WL
4157840, at *2 (Vet. App. Sept. 12, 2024) (“Dismissal Or-
der”). We affirm.
BACKGROUND
Mr. Berry is a veteran of the United States Army, pro-
ceeding pro se, who sought service connection for several
conditions. Mr. Berry served in the Army from October
1972 to October 1975. At various times thereafter, he
sought service connection for headaches, back and stomach
conditions, and prostate cancer. Those claims were denied
by the Department of Veterans Affairs (“VA”) regional of-
fice (“RO”), and Mr. Berry did not appeal. Later, but before
2011, he sought to reopen his prostate cancer claim on
grounds of new and material evidence. The RO refused to
reopen the claim, and Mr. Berry did not appeal.
In 2011, Mr. Berry sought service connection for a
stomach condition and to reopen his service connection
claims based on new and material evidence. As relevant
here, he also alleged clear and unmistakable error (“CUE”)
in the previous RO decisions.
In September 2012, the RO again denied service con-
nection for Mr. Berry’s stomach condition claim on the
ground that the condition did not result from military ser-
vice. The RO also denied Mr. Berry’s request to reopen the
other claims on the ground that the evidence submitted
was not new and material. The RO did not address
Mr. Berry’s CUE allegations.
In October 2012, Mr. Berry filed a notice of disagree-
ment with the RO’s September 2012 decision. Among other
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BERRY v. COLLINS 3
things, Mr. Berry alleged CUE in the previous rating deci-
sions. In November 2015, the RO affirmed its September
2012 decision again without addressing Mr. Berry’s CUE
allegations. In December 2015, Mr. Berry appealed the
RO’s November 2015 decision to the Board of Veterans’ Ap-
peals (“Board”).
In a deferred rating decision dated December 2015, the
RO acknowledged Mr. Berry’s CUE allegations but found
that Mr. Berry had not submitted the proper forms to sup-
port such a claim. In January 2016, in accordance with the
December 2015 decision, the RO sent a letter to Mr. Berry
instructing him to submit a VA Form 21-526EZ (Applica-
tion for Disability Compensation and Related Compensa-
tion Benefits) or to otherwise submit a new intent to file a
claim. The RO also informed Mr. Berry that it “w[ould]
take no further action until [it] receive[d] [his] completed
application for benefits or complete intent to file.” Record
of Proceedings at 1730, Lamar Berry v. Robert L. Wilkie,
CAVC No. 18-5579. Mr. Berry did not respond to the Jan-
uary 2016 letter, and there is no evidence in the record that
Mr. Berry to date has filed the requested forms.
On September 11, 2018, the Board denied the new and
material evidence claims but did not address CUE. See
S. App’x 22–311 (“September 2018 Board Decision”). The
Veterans Court later affirmed the Board’s decision not to
reopen the new and material evidence claims and dis-
missed Mr. Berry’s CUE appeals because the Board had
not rendered a final decision on them.
Mr. Berry then appealed to this court. On July 10,
2020, we affirmed the Veterans Court’s dismissal of the
CUE allegations because the Board had not rendered a
1 Citations to “S. App’x” refer to the Supplemental
Appendix filed by the government with its Corrected Infor-
mal Brief.
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BERRY v. COLLINS 4
final decision on those claims, and the Veterans Court thus
lacked jurisdiction to review them. We dismissed the ap-
peal as to the new and material evidence claims.
Almost three years later, on May 19, 2023, Mr. Berry
filed a “motion to reopen and revise [the September 2018
Board] Decision,” which was the subject of his previous ap-
peal to this court. S. App’x 1. He argued that the Board
erred in not considering his CUE allegations in its 2018 de-
cision. The Board apparently treated Mr. Berry’s motion
as one for reconsideration. On April 22, 2024, the Board’s
Deputy Vice Chairman denied Mr. Berry’s motion, deter-
mining Mr. Berry had not shown an obvious error of fact or
law in the September 2018 Board Decision.
On May 2, 2024, Mr. Berry appealed to the Veterans
Court, seeking review of the April 2024 denial of his motion
for reconsideration. On September 12, 2024, the Veterans
Court dismissed the appeal, explaining that it could not re-
visit issues that have already been considered and finally
decided by this court. See Dismissal Order at *2.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We may review a Veterans Court decision
with respect to the validity of a decision on a rule of law or
the validity or interpretation of any statute or regulation
that was relied on by the Veterans Court in making the
decision. 38 U.S.C. § 7292(a). Except with respect to con-
stitutional issues, we “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or regu-
lation as applied to the facts of a particular case.” Id.
§ 7292(d)(2).
On appeal, Mr. Berry appears to argue that the Veter-
ans Court erred in not exercising jurisdiction over his CUE
appeal. We disagree.
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BERRY v. COLLINS 5
This court has long established that the basic princi-
ples of finality and res judicata apply to veterans’ claims.
See, e.g., Routen v. West, 142 F.3d 1434, 1437–38 (Fed. Cir.
1998). “[T]o prevail on a claim of res judicata, the party
asserting the bar must prove that (1) the parties are iden-
tical or in privity; (2) the first suit proceeded to a final judg-
ment on the merits; and (3) the second claim is based on
the same set of transactional facts as the first.” Ammex,
Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003).
A dismissal for lack of jurisdiction triggers the application
of the doctrine of res judicata as to the jurisdictional issue.
Amgen Inc. v. U.S. Int’l Trade Comm’n, 902 F.2d 1532,
1536 n.5 (Fed. Cir. 1990); Watson v. United States,
349 F. App’x 542, 544 (Fed. Cir. 2009) (nonprecedential).
In view of res judicata principles, the Veterans Court
properly found it could not “revisit” the merits of the Sep-
tember 2018 Board Decision because that matter was fi-
nally decided by our court. Dismissal Order at *2. The
arguments that Mr. Berry now raises as to the merits of
the September 2018 Board Decision are based on the same
operative set of facts as were at issue in the first appeal.
Accordingly, we conclude Mr. Berry’s appeal is barred in
the Veterans Court by the doctrine of res judicata. Amgen,
902 F.2d at 1536 n.5 (“Dismissals for lack of jurisdiction
may be given res judicata effect as to the jurisdictional is-
sue.”).
To be clear, we do not hold that Mr. Berry is barred
from submitting a proper CUE claim to the VA, as the
Board invited him to do in 2016. We hold only that the
Veterans Court did not err in dismissing Mr. Berry’s ap-
peal in this case as foreclosed by res judicata.
Mr. Berry also appears to argue that the Secretary,
Board, Veterans Court, or their respective employees en-
gaged in unethical behavior and/or were part of a conspir-
acy at some point in the proceedings. Mr. Berry’s only
support appears to be the Board’s and Veterans Court’s
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BERRY v. COLLINS 6
rulings themselves, but “judicial rulings alone almost
never constitute a valid basis for a bias or partiality mo-
tion.” Liteky v. United States, 510 U.S. 540, 555 (1994). We
thus conclude there is no merit to Mr. Berry’s arguments
on this issue.
CONCLUSION
We have considered Mr. Berry’s remaining arguments
and find them unpersuasive. We affirm the Veterans
Court’s dismissal of Mr. Berry’s appeal.
AFFIRMED
COSTS
No costs.
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