Richard C. Mlekoday v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD C. MLEKODAY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7004
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-353, Judge Robert N. Davis.
______________________
Decided: November 7, 2013
______________________
K ENNETH M. CARPENTER , Carpenter, Chartered, of
Topeka, Kansas, for claimant-appellant.
D OMENIQUE K IRCHNER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respond-
ent-appellee. With her on the brief were STUART F.
D ELERY , Principal Deputy Assistant Attorney General,
J EANNE E. D AVIDSON , Director, and MARTIN F. H OCKEY ,
J R., Assistant Director. Of counsel on the brief were
D AVID J. BARRANS , Deputy Assistant General Counsel,

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MLEKODAY v. SHINSEKI 2
and RACHEL T. BRANT , Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC. Of counsel
was L. Misha Preheim, Trial Attorney, Commercial
Litigation Branch, United States Department of Justice,
of Washington, DC.
______________________
Before L OURIE, D YK, and O’MALLEY , Circuit Judges.
P ER CURIAM .
Richard C. Mlekoday (“Mlekoday”) appeals from the
final decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) holding that the
Board of Veterans’ Appeals (“Board”) did not err when it
found no clear and unmistakable error (“CUE”) in a
December 5, 1977 rating decision that terminated
Mlekoday’s total disability rating based on individual
unemployability (“TDIU”). See Mlekoday v. Shinseki, No.
11–353, 2012 WL 3003430 (Vet. App. July 24, 2012)
(unpublished). Mlekoday argues on appeal that the
Veterans Court misinterpreted various statutes and
regulations in affirming the Board’s decision. Because we
do not have jurisdiction to hear that portion of Mlekoday’s
appeal, we dismiss-in-part. Mlekoday also asserts that
the Veterans Court erred by not considering an argument
he failed to raise before the Board. On that point, we
affirm-in-part.
BACKGROUND
Mlekoday served in the U.S. Marine Corps from July
19, 1965, to August 31, 1968. While on active duty in
Vietnam, he sustained multiple gunshot wounds and
suffered injuries to his chest and left arm. In January
1969, the Department of Veterans Affairs (“VA”) regional
office (“RO”) in St. Paul, Minnesota, granted Mlekoday
service connection (80% rating) for a series of conditions
and also found that he was unemployable because of his
injuries. As a result, the RO found that he was entitled to

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MLEKODAY v. SHINSEKI 3
a TDIU effective on December 1, 1968, the day of his
discharge from service.
In September 1977, Mlekoday submitted to the VA a
Form 21–4209 employment questionnaire that indicated
that he had worked for the U.S. Postal Service from June
to September 1977. Based on Mlekoday’s questionnaire,
the RO issued a notice, dated October 3, 1977, stating
that, because he indicated that he had obtained full-time
employment, he was required to appear for an immediate
VA medical examination to determine his continued
eligibility for benefits. The RO decision also informed
Mlekoday that his 80% rating plus TDIU, which gave him
an effective 100% rating, would be reduced to only an 80%
rating unless he submitted evidence demonstrating that
any reduction would be in error. The decision also noted
that the best evidence that Mlekoday could submit was an
examination from a treating physician who had recently
examined him. The RO gave Mlekoday 60 days to provide
the requisite evidence.
On October 12, 1977, Mlekoday sent a letter to the VA
disagreeing with the RO’s statement regarding his disa-
bility. Mlekoday noted that he was not able to obtain
gainful employment and that his position with the U.S.
Postal Service had been temporary; he claimed that he
had only worked 60 days and that his earnings were
around $2,000 in total. On November 30, 1977,
Mlekoday’s accredited representative sent a letter to the
RO stating that Mlekoday had not reported for his sched-
uled examination and did not want any further contact
with the VA. The representative also noted that
Mlekoday did not wish to continue his effective 100%
disability rating if he had to continue being harassed with
filing out VA forms.
On December 5, 1977, the RO issued its rating deci-
sion and found that the record evidence did not demon-
strate that Mlekoday’s disabilities prevented all forms of

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MLEKODAY v. SHINSEKI 4
gainful employment. As such, the RO terminated
Mlekoday’s TDIU rating effective January 1, 1978. After
Mlekoday filed a notice of disagreement with that RO
decision, the RO noted the earlier finding, and requested
that Mlekoday undergo an examination. The RO noted
that it would review Mlekoday’s claim again once it could
review the results of a new examination.
Mlekoday underwent a VA medical examination on
March 30, 1978. In April 1978, the RO issued a supple-
mental statement of the case and noted that the results of
the March 1978 examination supported the denial of
Mlekoday’s TDIU. The RO concluded that, because his
disabilities did not appear so severe as to preclude all
types of gainful employment, he was not entitled to TDIU.
Mlekoday did not appeal the RO’s decision to the Board.
On December 2, 2005, Mlekoday filed a motion to re-
vise the December 1977 RO rating decision on the
grounds of CUE. Among other things, he challenged the
RO decision that terminated his TDIU benefits. The
Board determined that the RO decision did not suffer
from CUE. The Board determined that the discontinu-
ance of Mlekoday’s TDIU was not clearly and unmistaka-
bly erroneous because the evidence demonstrated that his
failure to report for the VA examination in 1977, and his
refusal to complete the necessary paperwork, the RO
properly discontinued his TDIU. The Board also held that
Melkoday’s objections to the December 1977 decision
required weighing and evaluating of the evidence, which
cannot be a basis for CUE. Mlekoday then appealed to
the Veterans Court.
The Veterans Court first refused to consider any ar-
guments Mlekoday failed to advance before the Board as
CUE. The Veterans Court did consider Mlekoday’s
properly raised arguments of: (1) whether the VA satisfied
the procedural requirements of 38 C.F.R. § 3.105; (2)
whether the VA complied with 38 C.F.R. § 3.344(c); and

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MLEKODAY v. SHINSEKI 5
(3) whether the VA improperly found that Mlekoday’s
temporary position with the U.S. Postal Service constitut-
ed evidence of gainful employment. The Veterans Court
then affirmed each of the Board’s finding on those three
issues. Mlekoday then appealed to this court.
STANDARD OF REVIEW
Our review of Veterans Court’s decision is limited by
statute. Under 38 U.S.C. § 7292(a), we may review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the [Veterans] Court in
making the decision.” We lack jurisdiction, however, over
challenges to factual determinations or to a law or regula-
tion as applied to the facts of a particular case, unless the
challenge presented a constitutional question. See 38
U.S.C. § 7292(d)(2). To the extent we have jurisdiction,
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).
D ISCUSSION
Mlekoday asserts that the Veterans Court erred in
three ways. He argues that the Veterans Court relied
upon a misinterpretation of the provisions of: (1) 38
U.S.C. § 7252(a); (2) 38 C.F.R. § 3.105(e) and (3) 38 C.F.R.
§ 3.344. The Veterans Court properly found that it lacked
jurisdiction to address Mlekoday’s contention regarding
38 C.F.R. § 7252(a) because, under the circumstances, he
failed to raise that theory of CUE before the Board. As for
Mlekoday’s contentions regarding 38 C.F.R. §§ 3.105 and
3.344, we lack jurisdiction over those claims.
A review of the record reveals that Mlekoday raised a
series of allegations of CUE in the December 1977 RO
decision. On appeal to the Veterans Court, however,

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MLEKODAY v. SHINSEKI 6
Mlekoday raised several new contentions for the first
time, including his allegation that the Board failed to
correctly apply the provisions of 38 C.F.R. § 3.344. As
such, the Veterans Court did not err when it concluded
that it lacked jurisdiction over that claim of CUE. The
Veterans Court’s jurisdiction is limited by statute and is
to be construed narrowly. See 38 U.S.C. §§ 7252 and
7261. And, the Veterans Court does not have jurisdiction
over a new CUE claim that was not first considered by the
Board. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed.
Cir. 2002) (holding that each allegation of CUE is sepa-
rate and must be specifically considered by the Board
before the Veterans Court has jurisdiction). Accordingly,
we affirm the Veterans Court’s decision that it lacked
jurisdiction over Mlekoday’s new CUE claim raised for the
first time on appeal.
Mlekoday next contends that the Veterans Court mis-
interpreted provisions of 38 C.F.R. §§ 3.105(e) and 3.343.
In each case, Mlekoday’s arguments amount to disagree-
ments with factual findings, application of law to fact, or
how the evidence was weighed. Mlekoday, for example,
disagrees with the level of detail provided in the Board
decision terminating his benefits, which relied on an
October 1977 VA decision that informed him of reasons
for the termination. Likewise, Mlekoday’s attempts to
couch his allegations regarding 38 C.F.R. § 3.343 as
anything other than a disagreement with how the evi-
dence was weighed or evaluated are unavailing. As such,
we lack jurisdiction over Mlekoday’s contentions regard-
ing those regulations.
CONCLUSION
Based on the foregoing, the Veterans Court’s decision
regarding its lack of jurisdiction over a new CUE claim
raised for the first time on appeal is affirmed. Because we
lack jurisdiction over the remaining portions of this
appeal, they are dismissed.

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MLEKODAY v. SHINSEKI 7
AFFIRMED IN PART, DISMISSED IN PART

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