Jamie Y. Lewis v. Robert Wilkie, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMIE Y. LEWIS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1121
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3494, Judge William S. Green-
berg.
______________________
Decided: May 16, 2019
______________________
J AMIE Y. L EWIS , Jennings, LA, pro se.
J OSHUA A. MANDLEBAUM , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by J OSEPH H. HUNT , MARTIN F. HOCKEY , J R.,
ROBERT EDWARD K IRSCHMAN, J R.; Y. KEN L EE , D EREK
SCADDEN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.

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2
LEWIS v. WILKIE
______________________
Before CHEN, HUGHES , and STOLL , Circuit Judges.
P ER CURIAM .
Jamie Y. Lewis, proceeding pro se, appeals the deter-
mination of the United States Court of Appeals for Veter-
ans Claims (Veterans Court) affirming the decision of the
Board of Veterans’ Appeals (Board) finding that the man-
ner of his discharge barred him from receiving benefits
from the Department of Veterans Affairs (VA), and that he
did not satisfy the insanity exception to the bar. For the
reasons below, we dismiss this appeal for lack of jurisdic-
tion.
I.
Mr. Lewis served on active duty in the U.S. Army from
October 2004 until September 2007. He was discharged
under “other than honorable conditions.” SAppx2.1 In
2008, Mr. Lewis was diagnosed with bipolar disorder and
marijuana dependency. Following this diagnosis, Mr.
Lewis filed a claim for benefits based on service connection
for bipolar disorder, but the VA regional office (RO) barred
him from receiving benefits due to the character of his dis-
charge. Mr. Lewis appealed the RO’s denial of his benefits,
arguing that his bipolar condition went undiagnosed dur-
ing his service and was the cause of his misconduct. In
2014, the Board affirmed the RO’s determination, but the
Veterans Court remanded for a medical opinion by the VA
1 Only one appendix was provided, by the Govern-
ment, labeled “Respondent-Appellee’s Supplemental Ap-
pendix.” Because it was not joined by the appellant, we will
refer to citations within it with the given prefix “SAppx”
and not J.A.

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LEWIS v. WILKIE 3
to determine whether Mr. Lewis qualified for the insanity
exception to the bar under 38 C.F.R. § 3.12(b).
Pursuant to the remand, a licensed psychologist issued
a medical opinion in 2016, concluding that there was insuf-
ficient evidence to support that Mr. Lewis was insane dur-
ing the relevant timeframe of his service. The psychologist
reviewed Mr. Lewis’s military service treatment records,
military service personnel records, military enlistment ex-
amination, military separation examination, Department
of Defense Form 214 Separation Documents, and civilian
medical records. SAppx40. Based on this review, the psy-
chologist noted that while the 2008 diagnosis of bipolar dis-
order and marijuana dependency post-dating Mr. Lewis’s
service appeared “justified,” there was no evidence that Mr.
Lewis was “insane” as defined by 38 C.F.R. § 3.354(a) at
the time he committed the offenses leading to his dis-
charge. SAppx40–41. The psychologist also noted that his
assessment of Mr. Lewis’s behavior accounted for “influ-
ence[] by marijuana intoxication.” SAppx41.
In 2017, the Board reviewed the 2016 medical opinion,
the 2008 diagnosis, and Mr. Lewis’s in-service records.
Based on this review, the Board determined that Mr.
Lewis’s “willful and persistent misconduct” during service
was a bar to VA benefits, and that “evidence procurable re-
lating to the period involved” did not sufficiently show that
he was insane during the relevant timeframe. SAppx9–11.
The Veterans Court affirmed, finding no clear error in the
Board’s decision. Mr. Lewis’s appeal followed.
II.
Our jurisdiction to review decisions by the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). Absent a constitutional issue, which Mr.
Lewis agrees is not in dispute here, 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.” 38 U.S.C. § 7292(d)(2). We may review “the validity

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LEWIS v. WILKIE
of a decision of the [Veterans] Court on a rule of law or of
any statute 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 deci-
sion.” 38 U.S.C. § 7292(a).
A service member who is discharged for “willful and
persistent misconduct” is barred from receiving VA bene-
fits unless the VA finds that the service member was “in-
sane” at the time of committing the offense that
precipitated that discharge. 38 U.S.C. § 5303(b); 38 C.F.R.
§ 3.12(b). An “insane person” is defined as
one who, while not mentally defective or constitu-
tionally psychopathic, except when a psychosis has
been engrafted upon such basic condition, exhibits,
due to disease, a more or less prolonged deviation
from his normal method of behavior; or who inter-
feres with the peace of society; or who has so de-
parted (become antisocial) from the accepted
standards of the community to which by birth and
education he belongs as to lack the adaptability to
make further adjustment to the social customs of
the community in which he resides.
38 C.F.R. § 3.354(a).
On appeal, Mr. Lewis does not appear to genuinely con-
test the ultimate finding of misconduct. Rather, he argues
that the Veterans Court erred in affirming that he was not
insane. But Mr. Lewis’s arguments are less than clear.
Though he alleges that the Veterans Court erred on an is-
sue involving “validity or interpretation of a statute or reg-
ulation,” he simply states “insanity” as his reasoning.
Appellant’s Informal Br. at 1. That one-word statement
does not suffice to identify a legal interpretation employed
by the Veterans Court, much less articulate a theory for
why it was wrong. To the extent Mr. Lewis is disputing the
underlying Board determination that he was not insane
during the relevant timeframe, that dispute involves a

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LEWIS v. WILKIE 5
factual question over which we lack jurisdiction to review.
38 U.S.C. § 7292(d)(2).
Mr. Lewis also asks us to request medical records from
“Merakey LA Mental Health” regarding treatment re-
ceived “since [he] was discharged.” Appellant’s Informal
Br. at 1. Mr. Lewis never raised the existence of these med-
ical records below, and even if these medical records sup-
ported a finding of insanity during the relevant timeframe,
that inquiry would turn on facts that are beyond the scope
of our jurisdiction. See 38 U.S.C. § 7292(d)(2); see also
Clements v. Shinseki, 414 F. App’x 283, 285 (Fed. Cir. 2011)
(finding that evidence obtained by the veteran purportedly
“supporting his claims that was not previously before the
Board or the Veterans Court . . . turns on facts and thus is
beyond the scope of our jurisdiction.”). To the extent Mr.
Lewis is implicitly arguing that the VA failed to satisfy its
duty to assist by not retrieving these records,2 he again
fails to explain why that would constitute an error in legal
interpretation, rather than an error in application of law or
regulation to facts over which we lack jurisdiction.
Mr. Lewis has not articulated any argument that could
provide a basis for this court’s jurisdiction. We have con-
sidered Mr. Lewis’s potential remaining arguments and
2 There is no indication that “Merakey LA Mental
Health” is a federal department or agency such that the
medical records could be accessed by the VA without prior
identification or authorization from Mr. Lewis. Under
38 C.F.R. § 21.1032(b), the VA’s duty to obtain records “not
in the custody of a Federal department or agency” gener-
ally consists of “an initial request for the records.” There
is no record evidence, nor any allegation from Mr. Lewis
himself, that Mr. Lewis ever made such a request to the VA
below.

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LEWIS v. WILKIE
find them unpersuasive. Accordingly, we dismiss this ap-
peal.
DISMISSED
COSTS
No costs.

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