Elaine B. Shaw v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELAINE B. SHAW,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1070
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-8171, Judge Coral Wong Pi-
etsch.
______________________
Decided: June 17, 2025
______________________
J OHN D. N ILES, Carpenter Chartered, Topeka, KS, ar-
gued for claimant-appellant. Also represented by
KENNETH M. CARPENTER .
EMMA E. B OND, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by B RIAN M. B OYNTON, TARA K. HOGAN, PATRICIA M.
MC CARTHY; B RIAN D. GRIFFIN, A NDREW J. STEINBERG,
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SHAW v. COLLINS 2
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before HUGHES, CUNNINGHAM , and STARK, Circuit Judges.
HUGHES, Circuit Judge.
Appellant Elaine B. Shaw, the surviving spouse of vet-
eran William J. Shaw, appeals a decision from the Veter-
ans Court holding that (1) it lacked jurisdiction to
adjudicate her claims on appeal because there was no deci-
sion from the Board of Veterans’ Appeals adjudicating
those claims, and (2) she forfeited any challenge to the
Board’s denial of her husband’s prior Clear and Unmistak-
able Error claim. The Veterans Court correctly declined to
exercise jurisdiction over Mrs. Shaw’s claims, which it de-
termined were new claims raised for the first time on ap-
peal. We lack jurisdiction to review the Veterans Court’s
determination that Mrs. Shaw forfeited any challenge to
the Board’s decision because a finding of forfeiture is based
on factual findings and the application of law to fact, nei-
ther of which we are permitted to review under 38 U.S.C.
§ 7292(d)(2). Thus, we affirm-in-part and dismiss-in-part.
I
In September 1968, a VA regional office denied
Mr. Shaw’s claim for service connection, finding that his
“ankle condition and muscular atrophy were not incurred
in or aggravated by [] service.” J.A. 28; see also J.A. 27 (the
rating decision form noting “ankle condition; progressive
muscular atrophy”). Mr. Shaw was notified of this decision
and did not appeal. J.A. 2 n. 3, 28, 110. In May 2019, and
again in February 2020, Mr. Shaw filed a motion for revi-
sion of the September 1968 rating decision based on Clear
and Unmistakable Error (CUE). J.A. 87–94, 110. He al-
leged that the Regional Office’s (RO) September 1968 rat-
ing decision applied the wrong legal standard for
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SHAW v. COLLINS 3
demonstrating service-connected injury and accordingly
erred in finding that there was no record of an in-service
injury. J.A. 91–94. The RO denied the revision, and on ap-
peal, the Board rejected Mr. Shaw’s allegations of CUE.
J.A. 126 (Board finding that the September 1968 rating de-
cision had considered “[t]he correct facts as they were
known at the time . . . and the statutory or regulatory pro-
visions extant at that time were correctly applied.”).
Mrs. Shaw, substituting for Mr. Shaw after he passed
away, raised a different CUE claim on appeal to the Veter-
ans Court. She alleged that the September 1968 rating de-
cision addressed muscular atrophy, but never adjudicated
Mr. Shaw’s claim for service connection for progressive
muscle atrophy. J.A. 176. She also argued that, because the
RO’s decision letter only referenced muscular atrophy, it
amounted to a notification error, and the September 1968
rating decision never became final. J.A. 170–73. In July
2023, the Veterans Court dismissed Mrs. Shaw’s appeal,
stating that it lacked jurisdiction over her new CUE and
finality claims, and that she had abandoned any challenge
to the Board’s decision denying her husband’s CUE claim.
Shaw v. McDonough, No. 21-8171, 2023 WL 4736447, (Vet.
App. July 25, 2023); J.A. 1–10. Mrs. Shaw timely appealed.
J.A. 11.
II
Our jurisdiction to review decisions of the Veterans
Court is limited to those appeals that challenge the validity
of any statute or regulation, any interpretations thereof, or
that raise any constitutional controversies. See 38 U.S.C.
§ 7292(c). We are barred from reviewing “(A) a challenge to
a factual determination, or (B) a challenge to a law or reg-
ulation as applied to the facts of a particular case.”
38 U.S.C. § 7292(d)(2). To the extent we have jurisdiction,
as relevant to this case, we may only set aside a Veterans
Court’s legal conclusion if it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law. 38 U.S.C. § 7292(d)(1)(A).
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SHAW v. COLLINS 4
III
A
“A prerequisite to Veterans Court jurisdiction is a de-
cision of the Board.” Bean v. McDonough, 66 F.4th 979, 988
(Fed. Cir. 2023). Here, the Veterans Court determined that
there was no Board decision on the CUE claim or finality
claim raised by Mrs. Shaw. J.A. 5–8. The Veterans Court
correctly concluded that it does not have jurisdiction to re-
view issues about which the Board has not rendered a de-
cision. See 38 U.S.C. § 7252(a); Maggitt v. West, 202 F.3d
1370, 1375 (Fed. Cir. 2000) (“[T]he jurisdiction of the Vet-
erans Court by statute only reaches to a ‘decision of the
Board.’” (quoting 38 U.S.C. § 7252(a))). On appeal to this
court, Mrs. Shaw appears to argue that her CUE claim was
properly before the Board, see Appellant’s Opening Br. 8–9,
presumably because Mr. Shaw’s February 2020 CUE claim
was broad enough to contain or imply it. We rejected this
kind of argument in Andre v. Principi, where we explained
that “a CUE claim subsumes a specific allegation of error”
that cannot “encompass[] all potential allegations of clear
and unmistakable error in the RO’s decision.” 301 F.3d
1354, 1361 (Fed. Cir. 2002) (holding that the Veterans
Court does not possess jurisdiction to entertain a new CUE
claim that had never been decided by the Board).
With regards to finality, Mrs. Shaw makes a similar
argument. At oral argument, her counsel contended that
finality is a “threshold issue,” and that if the Board ad-
dressed a “downstream” allegation of CUE, then the Board
implicitly addressed the threshold issue of finality. Oral
Arg. at 0:48–1:561; see also Appellant’s Reply Br. 1, 3. We
rejected this argument in Knowles v. Shinseki, 571 F.3d
1167, 1170 (Fed. Cir. 2009) (“[W]e hold that the law does
1 Available at https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=24-1070_06032025.mp3.
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SHAW v. COLLINS 5
not recognize a freestanding ‘finality claim’ filed after the
period for direct appeal has expired.”). As the Veterans
Court explained, challenges to finality cannot be preserved
in the way that Mrs. Shaw contends because a CUE claim
is premised on finality. J.A. 8 (“Mrs. Shaw ignores that ‘a
CUE claim (or any collateral attack) cannot lie as to a de-
cision that is still open to direct review. The sole purpose of
a CUE claim is to provide a VA claimant with an oppor-
tunity to challenge a decision that is otherwise final and
unappealable.’” (quoting May v. Nicholson, 19 Vet. App.
310, 317 (2005))). Thus, “any challenge to the finality of a
prior RO decision must be raised through one of the statu-
tory or regulatory exceptions to the rule of finality,”
Knowles, 571 F.3d at 1170, which, the Veterans Court
found, is not what either Mr. or Mrs. Shaw had done.
J.A. 6–8. Accordingly, we affirm the Veterans Court’s legal
conclusion that it lacked jurisdiction over Mrs. Shaw’s new
CUE claim and new finality claim raised for the first time
on appeal.
B
Lastly, the Veterans Court held that Mrs. Shaw “aban-
doned any challenge against the Board’s decision denying
Mr. Shaw’s February 2020 CUE motion[.]” J.A. 9. To the
extent Mrs. Shaw challenges this portion of the Veterans
Court’s dismissal, we lack jurisdiction to review because a
finding of forfeiture is based on factual findings and the ap-
plication of law to fact. See Moody v. Principi, 360 F.3d
1306, 1310 (Fed. Cir. 2004) (“[W]e are without jurisdiction
to review a factual determination or an application of law
to the particular facts in an appeal from the Court of Ap-
peals for Veterans Claims.” (citing Lennox v. Principi,
353 F.3d 941, 946 (Fed. Cir.2003) and 38 U.S.C.
§ 7292(d)(2)). The Veterans Court determined that none of
the “purported CUE argument[s] raised in [Mrs. Shaw’s]
brief fit[] within any CUE argument that the Board ad-
dressed in its decision.” J.A. 9. In similar circumstances,
we have held that we did not have jurisdiction to review a
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SHAW v. COLLINS 6
finding by the Veterans Court that the appellant “aban-
doned the CUE claims that had been decided by the Board.”
Andre, 301 F.3d at 1363.
IV
We have considered Mrs. Shaw’s remaining arguments
and find them unpersuasive. We accordingly affirm the
portions of the Veterans Court’s decision on appeal that we
have jurisdiction to review and dismiss the appeal as to the
portions of the decision that we lack jurisdiction to review.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
C OSTS
No costs.
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