Clyde Edward Ward v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLYDE EDWARD WARD,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1030, 2023-1031
______________________
Appeals from the United States Court of Appeals for
Veterans Claims in Nos. 21-6473, 22-4080, Judge Michael
P. Allen.
______________________
Decided: September 8, 2023
______________________
CLYDE EDWARD WARD , Toledo, OH, pro se.
D ANIEL BERTONI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, WILLIAM J AMES G RIMALDI, P ATRICIA M.
MCCARTHY ; AMANDA BLACKMON, Y. K EN L EE , Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
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WARD v. MCDONOUGH 2
______________________
Before REYNA, T ARANTO, and STARK, Circuit Judges.
P ER CURIAM .
Clyde Ward appeals two decisions of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
dismissing his requests for review of a Board of Veterans’
Appeals (“Board”) decision concerning his benefits. We
have jurisdiction to review only one of these decisions. Ac-
cordingly, we affirm in part and dismiss in part.
I
Ward served on active duty in the United States Army
from 1982 to 1985. Subsequently, the Department of Vet-
erans Affairs (“VA”) awarded Ward benefits for service-con-
nected skin conditions. In 2009, Ward asked the VA to
increase his disability rating. In January 2010, the Re-
gional Office (“RO”) denied his request. Ward filed a notice
of disagreement, and the Board sustained the RO’s decision
in 2014.
On June 18, 2021, Ward sent a letter to the Board he
labeled a “motion for revision of decision on grounds of
claim of clear and unmistakable error.” Respondent-Appel-
lee’s Supp. App. 58-70. In duplicate responses, sent on July
14, 2021 and August 26, 2021, the Board informed Ward it
was construing his June 2021 letter as a motion for recon-
sideration and as a motion for revision of a decision based
on clear and unmistakable error (“CUE”). Citing 38 C.F.R.
§ 20.1404(e), which provides that a motion for reconsidera-
tion is not considered a motion for CUE, the Board ex-
plained that it would address Ward’s motion for
reconsideration but not his motion for CUE.
Ward then filed a notice of appeal with the Veterans
Court; this appeal was assigned case number 21-6473. In
it, Ward challenged the Board’s summer 2021 responses as
denials of his claim for increased benefits. The Veterans
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WARD v. MCDONOUGH 3
Court, pointing to the lack of a final appealable decision,
asked Ward to explain how it had jurisdiction. The Veter-
ans Court construed Ward’s response as a “petition seeking
a writ of mandamus concerning the refusal [of the Board]
to adjudicate his CUE motion” and opened a new manda-
mus case, which it assigned case number 22-4080. The
Veterans Court then dismissed Ward’s original appeal,
case number 21-6473.
Meanwhile, in July 2022, the Board sent Ward a letter
saying it would consider both his motion for reconsidera-
tion and his CUE motion. This prompted the Veterans
Court to deny Ward’s petition for a writ of mandamus since
the Board was now considering Ward’s request for recon-
sideration and his CUE motion, and these two reviews
were the very relief he was seeking by mandamus. There-
fore, the Veterans Court found his mandamus petition
moot.
Ward appealed both the dismissal for lack of jurisdic-
tion in 21-6473 and the dismissal of his mandamus petition
as moot in 22-4080. We consolidated the Appeals.
II
While our jurisdiction over the Veterans Court is lim-
ited, we may “decide all relevant questions of law, includ-
ing interpreting constitutional and statutory provisions . . .
that [were] relied upon in the decision of” the Veterans
Court. 38 U.S.C. § 7292(d)(1). We may not, however, re-
view either “a challenge to a factual determination” or “a
challenge to a law or regulation as applied to the facts of a
particular case.” § 7292(d)(2).
III
We have jurisdiction to review Ward’s appeal as to Vet-
erans Court appeal number 21-6473 because the Veterans
Court’s evaluation of its own jurisdictional statute presents
a question of law. See Ledford v. West, 136 F.3d 776, 778
(Fed. Cir. 1998). The Veterans Court is authorized “to
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WARD v. MCDONOUGH 4
review decisions of the Board of Veterans’ Appeals,”
38 U.S.C. § 7252(a) (emphasis added), and a decision re-
quires a grant or denial of relief, see 38 U.S.C. § 7104(d).
Because the Board had not, in its summer 2021 letters, ei-
ther granted or denied Ward’s motion for reconsideration,
and it had not yet docketed his motion for revision on the
basis of CUE, the Veterans Court lacked jurisdiction to
hear appeal 21-6473. See Maggitt v. West, 202 F.3d 1370,
1376 (Fed. Cir. 2000) (“A ‘decision’ of the Board . . . is the
decision with respect to the benefit sought by the veteran:
those benefits are either granted . . . or they are denied.”).
We lack jurisdiction to review the Veterans Court’s de-
cision as to appeal 22-4080. There, the Veterans Court de-
termined that all of the relief sought in Ward’s mandamus
petition – consideration by the Board of both his motion for
reconsideration and his CUE motion – had been granted by
the Board itself, as the Board notified Ward on July 27,
2022 that it was considering his June 23, 2021 letter as
both a motion for reconsideration and as a motion for CUE.
See Mote v. Wilkie, 976 F.3d 1337, 1341 (Fed. Cir. 2020)
(“[A] case becomes moot when a claimant receives all her
requested relief.”). Ward’s argument to us is that, in reach-
ing the mootness conclusion, the Veterans Court “failed to
correctly apply the facts presented to it.” Appellant Br. 1.
This is a dispute over which we may not exercise jurisdic-
tion. See 38 U.S.C. § 7292(d)(2) (“[T]he Court of Appeals
may not review . . . a challenge to a law or regulation as
applied to the facts of a particular case.”); see also Beasley
v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013) (“In con-
ducting . . . a review [of the Veterans Court’s denial of a
petition for writ of mandamus], we do not interfere with
the [Veterans Court’s] role as the final appellate arbiter of
the facts underlying a veteran’s claim or the application of
veterans’ benefits law to the particular facts of a veteran’s
case.”).
To the extent Ward is additionally arguing, in connec-
tion with either portion of his appeal, that the Veterans
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WARD v. MCDONOUGH 5
Court failed to consider material evidence, and thereby vi-
olated his legal rights, his contention concerns the Veter-
ans Court’s consideration of evidence, which is outside our
jurisdiction. See King v. Shinseki, 700 F.3d 1339, 1346
(Fed. Cir. 2012) (“Because [claimant] only challenges the
evaluation and weighing of evidence, this court lacks juris-
diction over this appeal.”). He does not present a genuine
legal or Constitutional issue, which we would be permitted
to review. We also lack jurisdiction to consider Ward’s al-
legation that a Board judge had a conflict of interest and
should have recused himself. See Morris v. West, 155 F.3d
569 (Table) (Fed. Cir. 1998) (“[T]his court lacks jurisdiction
to review the recusal issue.”).
IV
We have considered Ward’s additional arguments and
find they do not affect the disposition of this case. For these
reasons, we affirm the Veterans Court’s dismissal of appeal
21-6473 for lack of jurisdiction and dismiss for lack of ju-
risdiction his appeal of appeal 22-4080.
AFFIRMED IN PART AND DISMISSED IN PART
COSTS
No Costs.
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