## United States Court of Appeals for the Federal Circuit

03-7041

HOMER L. COOK, JR.,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

[Kenneth M. Carpenter]{.underline}, Carpenter, Chartered, of Topeka,
Kansas, argued for claimant-appellant.

[Gregory T. Jaeger]{.underline}, Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of Washington, DC,
argued for respondent-appellee. With him on the brief were [David M.
Cohen]{.underline}, Director; and [Todd M. Hughes]{.underline},
Assistant Director. Of counsel on the brief was [Y. Ken
Lee]{.underline}, Attorney, United States Department of Veterans
Affairs, of Washington, DC. Of counsel was [Lawrence N.
Minch]{.underline}, Attorney, United States Department of Justice, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Donald L. Ivers

**United States Court of Appeals for the Federal Circuit**

03-7041

HOMER L. COOK, JR.,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

# \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

# 

# DECIDED: December 19, 2003

# \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

# 

Before GAJARSA, LINN, and PROST, [Circuit Judges]{.underline}.

GAJARSA, [Circuit Judge]{.underline}.

Homer L. Cook, Jr., appeals from a decision of the United States Court
of Appeals for Veterans Claims ("Veterans Court") affirming the Board of
Veterans' Appeals' ("Board's") denial of his claim for benefits under 38
U.S.C. § 1151(a) (2000). [Cook v. Principi]{.underline}, No. 99-1544
(Vet. App. 2002). Although Mr. Cook presents his argument as a legal
premise couched in terms of statutory interpretation, the review Mr.
Cook requests ultimately reduces to an application of the law to facts.
We therefore find that it is outside of our jurisdiction as prescribed
by 38 U.S.C. § 7292 (2000), [amended by]{.underline} Veterans Benefit
Act of 2002, Pub. L. No. 107-330, § 402, 116 Stat. 2820, 2832 (2002).

I. BACKGROUND

Mr. Cook underwent surgery at a Department of Veterans Affairs ("VA")
facility in 1992 to remove a mass from his lower back. In the period
following the removal of the mass, Mr. Cook suffered from various
medical conditions that resulted in disability. Mr. Cook seeks benefits
under § 1151(a), which provides that, in certain cases, a veteran is
entitled to receive benefits for injuries incurred during medical
treatment furnished by law (e.g., treatment at a VA hospital). A VA
regional office ("RO") denied Mr. Cook's claim for benefits in February
of 1995, and again in October of the same year. Mr. Cook appealed the
decision to the Board, which remanded his claim to the RO to obtain
treatment records and perform additional physical examinations. In 1999,
the Board denied Mr. Cook's claim for benefits, and Mr. Cook appealed
the Board's decision to the Veterans Court.

Before the Veterans Court, Mr. Cook argued that the Board failed to
provide a "written statement of \[its\] findings and conclusions, and
the reasons and bases for those findings and conclusions" as required by
38 U.S.C. § 7104(d)(1) (2000). Specifically, Mr. Cook pointed to the
Board's failure to address the informed consent form that is required
prior to treatment at a VA facility by 38 C.F.R. § 17.32(c) (1997).
According to Mr. Cook, the informed consent form was probative evidence
that his condition was caused by the VA surgery because it warned of
precisely the ailments with which he became afflicted. Consequently, Mr.
Cook argues, the Board's failure to address the form was error under §
7104(d)(1). Mr. Cook further argued that the Board also failed to
address the internal inconsistencies of an examining physician's medical
report to the VA.

The Veterans Court rejected both of Mr. Cook's assertions. As to the
failure to address the informed consent form, the Veterans Court agreed
that the Board did not address the form but disagreed that this failure
violated the "reasons or bases" requirement of § 7104(d). The consent
form, the Veterans Court explained, is a legal notice requirement, and
is neither favorable nor unfavorable evidence regarding Mr. Cook's
claim. As to the argument regarding the internal inconsistency of the
medical opinion, the Veterans Court found the inconsistency to be
illusory. Mr. Cook timely appealed to this court.

II\. DISCUSSION

A. [Standard of Review]{.underline}

The jurisdiction of this court to review decisions of the Veterans Court
is limited by statute. 38 U.S.C. § 7292; [Forshey v.
Principi]{.underline}, 284 F.3d 1335, 1338 (Fed. Cir. 2002) (en banc).
Under § 7292(c), we have "exclusive jurisdiction to review and decide
any challenge to the validity of any statute or regulation, or any
interpretation thereof" by the Veterans Court. 38 U.S.C. § 7292(c);
[Forshey]{.underline}, 284 F.3d at 1338. Constitutional and statutory
interpretations by the Veterans Court are reviewed de novo.
[Santana-Venegas v. Principi]{.underline}, 314 F.3d 1293, 1296 (Fed.
Cir. 2002). Interpretations of regulations, however, may only be set
aside if they are: "(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to constitutional
right, power, privilege, or immunity; (C) in excess of statutory
jurisdiction, authority, or limitations, or in violation of a statutory
right; or (D) without observance of procedure required by law." 38
U.S.C. § 7292(d)(1); [Santana-Venegas]{.underline}, 314 F.3d at 1296.
This court is limited by its jurisdictional statute and, absent a
constitutional issue, may not review challenges to factual
determinations or challenges to the application of a law or regulation
to facts. 38 U.S.C. § 7292(d)(2).

B. [Analysis]{.underline}

Mr. Cook argues that the Veterans Court has abused its discretion under
its own jurisdictional statute, 38 U.S.C. § 7252 (2000), by not
remanding his case to the Board for consideration of the consent form.
Section 7252(a) authorizes the Veterans Court "to affirm, modify, or
reverse a decision of the \[Board\] or to remand the matter, as
appropriate." [Id.]{.underline} Mr. Cook thus describes the issue as a
review of the Veterans Court's compliance with its own jurisdictional
statute, a question of statutory interpretation falling within the scope
of our review. 38 U.S.C. § 7292(d)(1); [see also]{.underline} [Ephraim
v. Brown]{.underline}, 82 F.3d 399, 400 (Fed. Cir. 1996). The government
disputes Mr. Cook's description of the issue, arguing instead that §
7292(d)(2), which precludes our review of factual determinations and the
application of the law to facts, applies to Mr. Cook's claim.

Both parties rely on [Maggitt v. West]{.underline}, 202 F.3d 1370 (Fed.
Cir. 2000), and [Morris v. Principi]{.underline}, 239 F.3d 1292 (Fed.
Cir. 2001), to support their respective positions. In
[Maggitt]{.underline}, this court found jurisdiction to hear a veteran's
claim that the Veterans Court abused its discretion under § 7252(a) when
it declined to remand a case to the Board for further consideration in
light of a decision, also by this court, revising the applicable legal
standard. In reaching this conclusion, the court in
[Maggitt]{.underline} explained that it was not reviewing the Board's
decision for correctness, but was instead exercising its statutory
authority to review questions involving the Veterans Court's
jurisdiction. [Maggitt]{.underline}, 202 F.3d at 1379-80. In
[Morris]{.underline}, the court relied on [Maggitt]{.underline},
similarly finding jurisdiction to review a decision of the Veterans
Court not to remand a veteran's claim for reconsideration in light of a
newly enacted statute. [Morris]{.underline}, 239 F.3d at 1294. The court
in [Morris]{.underline} further found jurisdiction to review a corollary
argument, also premised on an abuse of discretion under § 7252, that the
Veterans Court misinterpreted § 7104 in concluding that remand was an
inappropriate disposition. [Id.]{.underline} at 1295-96.

We do not read [Maggitt]{.underline} and [Morris]{.underline} as
standing for a general proposition that this court has jurisdiction to
review every disposition of an appeal by the Veterans Court under §
7252(a). Instead, [Maggitt]{.underline} and [Morris]{.underline} present
situations in which this court has jurisdiction to review the
correctness of the legal decision underlying the jurisdictional
determination made by the Veterans Court under § 7252. Jurisdictional
determinations are themselves legal issues that can be reviewed by this
court. In [Maggitt]{.underline}, the situation involved a decision
issuing from this court revising the controlling legal standard at issue
in the veteran's claim. 202 F.3d at 1374. Similarly, one of the issues
in [Morris]{.underline} involved a change in the law, though a result of
congressional rather than judicial action. [Morris]{.underline}, 239
F.3d at 1293-94. [Morris]{.underline} also presented an additional
ground for review of § 7252, premised on a misinterpretation of §
7104(d)---the same statute at issue in the present case.
[Id.]{.underline} at 1295-96.

In his reply brief, Mr. Cook also cites [Pierce v.
Principi]{.underline}, 240 F.3d 1348 (Fed. Cir. 2001), for the
proposition that the mere failure to adhere to a jurisdictional statute
is sufficient to create jurisdiction in this court. Again, however, Mr.
Cook's argument ignores the facts of the case. In [Pierce]{.underline},
the veteran's abuse-of-discretion argument was that the Veterans Court
failed to make [any]{.underline} determination regarding the correctness
of the Board decision, in direct contravention of the statute, § 7261.
In other words, the abuse of discretion was the misinterpretation of the
jurisdictional statute itself. We found that the Veterans Court made the
required determination, and therefore affirmed---without any review of
the correctness of that determination. [Pierce]{.underline}, 240 F.3d at
1356-57.

Mr. Cook's claim involves no intervening change in law or request for
statutory interpretation. Instead, his argument is premised on the basis
that the Veterans Court erred by not remanding his case over an alleged
failure by the Board to satisfy its statutory requirements under
§ 7104(d)(1). Although we have not addressed the full extent of this
court's jurisdiction to review the compliance of the Veterans Court with
its jurisdictional statute, § 7252, our [Maggitt]{.underline} and
[Morris]{.underline} decisions correctly indicate that our review is
confined to legal determinations. [See]{.underline}
[Maggitt]{.underline}, 202 F.3d at 1379 (rejecting the government's
argument that we have no jurisdiction to review exercises of discretion
under § 7252(a) "even when the remand motion is prompted by an
intervening change in law"); [Morris]{.underline}, 239 F.3d at 1294 ("In
[Maggitt]{.underline}, we determined that we had jurisdiction to review
the Court of Appeals for Veterans Claims' denial of a motion to remand a
case to the Board [in view of a change in the law]{.underline}."
(emphasis added)). Accordingly, this court does not have jurisdiction to
review an alleged abuse of discretion under § 7252 premised on the
misapplication of the law to facts or an erroneous factual
determination.

Our jurisdictional statute, § 7292, supports this conclusion. As we have
often explained, § 7292(d)(2) precludes this court's review of factual
determinations and applications of the law to facts where no
constitutional issues are involved. [See]{.underline} [Halpern v.
Principi]{.underline}, 313 F.3d 1364, 1369 (Fed. Cir. 2002); [Jefferson
v. Principi]{.underline}, 271 F.3d 1072, 1075-76 (Fed. Cir. 2001);
[Woodson v. Brown]{.underline}, 87 F.3d 1304, 1307 (Fed. Cir. 1996);
[Albun v. Brown]{.underline}, 9 F.3d 1528, 1530 (Fed. Cir. 1993).
Subjects within the scope of our review include:

\(1\) issues concerning the validity of statutes or regulations on which
the decision of the Court of Appeals for Veterans Claims depended; (2)
issues of interpretation if the Court of Appeals for Veterans Claims
elaborated the meaning of a statute or regulation and the decision
depended on that interpretation; (3) issues of validity or
interpretation raised before the Court of Appeals for Veterans Claims
but not explicitly decided, if the decision would have been altered by
adopting the position that was urged; and (4) other "relevant" questions
of law.

[Forshey]{.underline}, 284 F.3d at 1351.[^1] While Mr. Cook's appeal
arguably resembles the situations in [Maggitt]{.underline} and
[Morris]{.underline}, particularly the § 7104 issue in
[Morris]{.underline}, any resemblance is superficial. Unlike those
cases, the review requested here would unavoidably require a review of
the Veterans Court's application of law to the facts. Attempting to
recast the issue as purely legal under the guise of an
abuse-of-discretion review of § 7252 is unavailing. [^2]

Mr. Cook argued to the Veterans Court that the Board's failure to
consider his consent form was error under § 7104(d)(1). The Veterans
Court considered this argument, and declined to remand the case for
further consideration by the Board. Mr. Cook argues to this court that
the Veterans Court abused its discretion under § 7252(a) by not
remanding his case. To agree with Mr. Cook, we would first need to
conclude that the Veterans Court's application of law, in this case §
7104(d)(1), to the facts, here the failure to consider the consent form,
was incorrect. While no express holding to that effect is required to
give Mr. Cook the relief he requests, we certainly would be applying the
law to the facts in order to find an abuse of discretion. In contrast,
no such application of law to facts was necessary in
[Maggitt]{.underline} or [Morris]{.underline}. The central thesis there
was only a determination of whether the abuse of discretion, premised on
the intervening legal changes, created a basis for this court to obtain
jurisdiction to determine the correctness of the underlying legal
decisions by the Veterans Court. Likewise, the review of the § 7104(d)
issue in [Morris]{.underline} involved only a review of the legal
interpretation of that statute---again, with no corresponding review of
factual matters.

While both in the situation presented by Mr. Cook and the situations in
[Maggitt]{.underline} and [Morris]{.underline}, we would be reviewing
the Veterans Court's compliance with its jurisdictional statute, a
seemingly legal question, that review cannot be performed in the present
appeal without reviewing the application of the law to facts, a matter
excluded from our jurisdiction by § 7292(d)(2). Thus, Mr. Cook presents
us with a question outside of our jurisdiction and, no matter how many
mattresses Mr. Cook stacks upon it, § 7292(d)(2) requires that we still
feel the pea at the bottom of the stack.[^3]

III\. CONCLUSION

Because we are without jurisdiction to review Mr. Cook's appeal, it is

[DISMISSED]{.underline}

IV\. COSTS

No costs.

# 

[^1]: In 2002, Congress expanded our scope of review to "case"
    jurisdiction. [See]{.underline} [Morgan v. Principi]{.underline},
    327 F.3d 1357, 1360-61 (Fed. Cir. 2003); Veterans Benefit Act of
    2002, Pub. L. No. 107-330, § 402, 116 Stat. 2820, 2832 (2002).

[^2]: While the appellant in [Morris]{.underline} presented the alleged
    misinterpretation of § 7104(d) as an abuse of discretion by the CAVC
    under § 7252, the appellant's use of § 7252 as a vehicle for
    reviewing the issue seems to us to have been unnecessary---we could
    have reviewed the alleged misinterpretation directly pursuant to
    § 7292(c). Much as the form of the request made no difference in
    [Morris]{.underline}, the same is true here. Requesting review of a
    factual dispute through the lens of an abuse of discretion under §
    7252 does nothing to alter the prohibited character of that review
    under § 7292(d)(2).

[^3]: Hans Christian Andersen, [The Princess and the Pea]{.underline},
    [in]{.underline} [Fairy Tales]{.underline} 23 (Everyman's Library
    1992).