Lewis C. Cook v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEWIS C. COOK,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1562
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-7993, Judge William S. Green-
berg.
______________________
Decided: March 28, 2025
______________________
CHRISTOPHER P AUL J ETER , Massillamany Jeter & Car-
son LLP, Fishers, IN, argued for claimant-appellant. Also
represented by ROBERT W. L EGG, Law Office of Robert W.
Legg, Arlington, VA.
BRITTNEY M. WELCH , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, P ATRICIA
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COOK v. COLLINS 2
M. MCCARTHY ; CHRISTOPHER O. ADELOYE, CHRISTINA L YNN
G REGG, Y. K EN L EE , Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
Before D YK, HUGHES , and CUNNINGHAM , Circuit Judges.
CUNNINGHAM , Circuit Judge.
Lewis C. Cook appeals from the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the decision of the Board of Veterans’ Ap-
peals (“Board”), which denied Mr. Cook a disability rating
increase and denied him a total disability rating based on
individual unemployability (“TDIU”). Cook v. McDonough,
No. 21-7993, 2022 WL 17324229 (Vet. App. Nov. 29, 2022)
(“Decision”). For the reasons discussed below, we dismiss
Mr. Cook’s appeal for lack of jurisdiction.
I. BACKGROUND
In 1975, Mr. Cook applied for disability benefits, seek-
ing compensation or a disability pension for an eye injury
he incurred while working at a Department of Veterans Af-
fairs (“VA”) hospital. Decision at *2; J.A. 488–89.1 The fol-
lowing year, in 1976, a VA Regional Office (“RO”) assigned
Mr. Cook a 60 percent disability rating based on a diagno-
sis of “thyrotoxicosis with exophthalmos and nervous con-
dition” and awarded him a non-service-connected disability
pension effective July 1, 1975. Decision at *2; J.A. 478, 480.
The VA subsequently suspended Mr. Cook’s non-service-
connected pension benefits in 1981 because of a change in
his income relating to his receipt of Social Security bene-
fits. Decision at *2; J.A. 475–76. Mr. Cook applied for VA
benefits again in 2006, stating that he no longer was re-
ceiving Social Security benefits while admitting that his
1 “J.A.” refers to the joint appendix, ECF No. 25, filed
by Mr. Cook.
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COOK v. COLLINS 3
non-service-connected pension had been terminated in
1981. Decision at *2; J.A. 435–46.
In 2009, Mr. Cook submitted an informal claim re-
questing service connection for thyrotoxicosis with exoph-
thalmos. Decision at *3; J.A. 435–46. On June 22, 2016,
the Board granted Mr. Cook service connection for a thy-
roid disorder. Decision at *3; J.A. 288–94. Accordingly, on
July 5, 2016, the RO awarded him: “(1) a 10% disability
rating for hypothyroidism, status post Graves’ disease (also
claimed as thyrotoxicosis),” and “(2) a 0% disability rating
for exophthalmos,” both effective on September 8, 2009.
Decision at *3; J.A. 280–86.
On November 25, 2019, the Board denied Mr. Cook en-
titlement to a rating in excess of 10 percent before Decem-
ber 10, 2017, and in excess of 30 percent after December
10, 2017, for Mr. Cook’s service-connected hypothyroidism.
Decision at *3; J.A. 499. The Board also denied Mr. Cook
entitlement to a service-connected TDIU rating. Decision
at *3; J.A. 499. In March 2020, the Board granted entitle-
ment to an effective date of July 1, 1975, for service-con-
nected hypothyroidism and service-connected
exophthalmos associated with hypothyroidism. Decision
at *3; J.A. 80. A March 2020 rating decision assigned
Mr. Cook a 10 percent disability rating for hypothyroidism
and a non-compensable disability rating for exophthalmos.
Decision at *3; J.A. 80.
In March 2021, the Veterans Court set aside the No-
vember 2019 Board decision and remanded the case for the
Board to provide an adequate statement of reasons and to
evaluate Mr. Cook’s claim under 38 C.F.R. § 3.344. Deci-
sion at *3; Cook v. McDonough, No. 19-8650, 2021 WL
1182921, at *6–7 (Vet. App. Mar. 30, 2021). In December
2021, the Board again denied Mr. Cook a disability rating
over 10 percent effective prior to December 10, 2017, for
hypothyroidism, and over 30 percent effective after Decem-
ber 10, 2017, and denied Mr. Cook entitlement to a service-
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COOK v. COLLINS 4
connected disability rating for TDIU. Decision at *3; J.A.
77. In discussing 38 C.F.R. § 3.344, the Board concluded
that the “assigned ratings did not revise the January 1976
decision awarding [non-service-connected] pension and the
assignment of a 10 percent disability rating prior to Decem-
ber 10, 2017, and 30 percent, thereafter, does not constitute
a reduction of the 60 percent rating assigned for [non-ser-
vice-connected] pension purposes only.” Decision at *4
(quoting J.A. 83).
Mr. Cook appealed, and the Veterans Court affirmed
the Board’s decision. Decision at *4–5. The Veterans Court
found no clear error in the Board’s determination that the
60 percent disability rating assigned for non-service-con-
nected pension was not solely for the same disability for
which he is currently service connected. Decision at *4.
The Veterans Court also rejected Mr. Cook’s argument that
the 1976 decision was a protected rating under 38 C.F.R.
§ 3.951(b).2 Id. This appeal followed.
II. D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge to
the validity of any statute or regulation or any interpreta-
tion thereof [by the Veterans Court], and to interpret con-
stitutional and statutory provisions, to the extent
presented and necessary to a decision.” Id. § 7292(c); Mid-
dleton v. Shinseki, 727 F.3d 1172, 1175 (Fed. Cir. 2013).
2 This regulation provides that, absent a showing of
fraud, the VA may not reduce “[a] disability which has been
continuously rated at or above any evaluation of disability
for 20 or more years for compensation purposes,” or “a rat-
ing of permanent total disability for pension purposes
which has been in force for 20 or more years.” 38 C.F.R.
§ 3.951(b).
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COOK v. COLLINS 5
This court may not, except to the extent that an appeal pre-
sents a constitutional challenge, “review (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). “We therefore generally lack jurisdic-
tion to review challenges to the Board’s factual determina-
tions or to any application of law to fact.” Middleton, 727
F.3d at 1175 (citing Johnson v. Derwinski, 949 F.2d 394,
395 (Fed. Cir. 1991)).
We lack jurisdiction over this appeal because Mr. Cook
challenges factual determinations and does not present a
constitutional challenge. Mr. Cook asks us to find that the
conditions for which he was non-service-connected in 1976
are the same conditions for which he was later service con-
nected in 2016. See, e.g., Appellant’s Br. 7. Mr. Cook’s ar-
guments about the relatedness of his service-connected and
non-service-connected disabilities sound in fact rather
than in law. Jefferson v. Principi, 271 F.3d 1072, 1075
(Fed. Cir. 2001) (challenges to whether disabilities are ser-
vice connected “are factual challenges over which we have
no jurisdiction”). Thus, we lack jurisdiction over
Mr. Cook’s appeal.
Mr. Cook argues that the Board legally erred by violat-
ing regulations that emphasize the need for finality in the
VA’s decisions. See Appellant’s Br. 12–16. For example,
Mr. Cook relies on various regulations to argue that it is
necessary to defer to the finality of the Board’s decisions.
See, e.g., Appellant’s Br. 12–14 (citing 38 C.F.R. § 3.104(a),
§ 3.105(a), § 3.344, and § 3.951(b)). However, these regula-
tions are not applicable because the finality of the Board’s
decisions is not at issue. Decision at *4. For example, the
Board determined that Mr. Cook’s 1976 award of a 60 per-
cent non-service-connected pension was based on a differ-
ent combination of disabilities than the basis for the later
service-connected rating decision on appeal. Decision at *3;
J.A. 82. This was a finding of fact over which we do not
have jurisdiction. Moreover, Mr. Cook does not contend
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COOK v. COLLINS 6
that the Veterans Court misinterpreted any of these regu-
lations. At best, Mr. Cook challenges the application of
these regulations to the factual circumstances in this case.
We also lack jurisdiction to hear such a challenge.
III. CONCLUSION
We have considered Mr. Cook’s other arguments and
find that none of the arguments raises a nonfrivolous issue
over which we can assert jurisdiction. For the above rea-
sons, we dismiss Mr. Cook’s appeal.
DISMISSED
COSTS
No costs.
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