NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-7044 

GENE S. GROVES, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

Respondent-Appellee. 

 Gene S. Groves, of Shafter, Texas, pro se. 

 Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent-appellee. With 

her on the brief were Jeanne E. Davidson, Director, and Mark A. Melnick, Assistant 

Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General 

Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans 

Affairs, of Washington, DC. 

 

Appealed from: United States Court of Appeals for Veterans Claims 

Chief Judge William P. Greene, Jr. 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-7044 

GENE S. GROVES, 

 Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

____________________________ 

DECIDED: July 11, 2007 

____________________________ 

Before RADER, BRYSON, and MOORE, Circuit Judges. 

PER CURIAM. 

Gene S. Groves appeals an order of the Court of Appeals for Veterans Claims 

(Veterans Court) affirming a decision of the Board of Veterans’ Appeals (Board) that 

found no clear and unmistakable error (CUE) in a 1981 Board decision denying both 

service connection for an acquired psychiatric disorder and an increased rating for 

residuals of a shell fragment in his right thigh. Groves v. Nicholson, No. 03-1236 (Vet. 

App. Aug. 23, 2006). Because Groves fails to appeal on bases that fall within this 

court’s jurisdiction and failed to present his due process argument to the Veterans 

Court, we dismiss. 

BACKGROUND 

Groves is a veteran who had active service from January 1970 to August 1971 

and was discharged from service on August 23, 1971. On March 16, 1981, the Board 
denied service connection for an acquired psychiatric disorder and an increased rating 

for residuals of a shell fragment wound in his right thigh. Groves later sought revision of 

the 1981 Board decision based on CUE, and in May 2003, the Board determined that its 

prior decision did not contain CUE. 

Groves appealed to the Veterans Court, asserting the finding that an acquired 

psychiatric disorder was not clearly shown was clearly erroneous and contradicted by 

1979 medical evidence that documented diagnoses of depression and anxiety. He also 

alleged that the Board improperly found he had sustained only a superficial wound to 

his right thigh and failed to consider 38 C.F.R. §§ 4.40, 4.51, 4.56(c), and 4.118 

Diagnostic Code 7804 when adjudicating that claim. Finally, Groves alleged that the 

Board provided an inadequate statement of reasons or bases for its 1981 decision. 

In an order dated August 23, 2006, the Veterans Court affirmed the 2003 Board 

decision, indicating that the 1979 medical evidence may not have been before the 

Board in 1981 but that the record at that time contained evidence of a personality 

disorder. The order indicated that Groves failed to demonstrate the outcome would 

have been different had the Board considered the 1979 medical records in 1981 and 

thus CUE had not been proven. Additionally, the Veterans Court found Groves’ 

disagreement with the Board’s determination as to the wound in his right thigh a 

disagreement as to the weight afforded to the evidence, which is not a basis for CUE. 

The Veterans Court determined that it lacked jurisdiction over Groves’ assertions of 

error regarding the Board’s failure to consider 38 C.F.R. §§ 4.40, 4.51, 4.56(c), and 

4.118 Diagnostic Code 7804, finding those specific allegations of CUE were not raised 

2007-7044 2
before the Board.1

 Finally, it found that Groves failed to raise specific allegations 

regarding the inadequacy of the Board’s statement of reasons or bases for its 2003 

decision and was not a basis for a CUE finding. This appeal followed. 

ANALYSIS 

Our jurisdiction to review decisions of the Veterans Court is limited. We have 

jurisdiction to “review and decide any challenge to the validity of any statute or 

regulation or any interpretation thereof” by the Veterans Court “and to interpret 

constitutional and statutory provisions, to the extent presented and necessary to a 

decision.” 38 U.S.C. § 7292(a), (c). However, unless a constitutional issue is 

presented, we may not review factual determinations or the application of law to a 

particular set of facts. Id. at § 7292(d)(2); Spencer v. Brown, 17 F.3d 368, 374 (Fed. 

Cir. 1994). 

On appeal, Groves contends that his CUE claim concerns the failure of the Board 

to address the 1979 medical records diagnosing Groves with anxiety and depression. 

Groves alleges that the Veterans Court determined the factual value of those records in 

the first instance, and challenges the Veterans Court findings. Since Groves does not 

challenge the validity of the Veterans Court decision with respect to the validity or 

interpretation of any statute or regulation relied upon by that court, we lack jurisdiction 

over this claim. Groves also appeals the Veterans Court decision that there was no 

CUE in the Board finding that the wound in his right thigh was only superficial. 

 1

 Groves’ argument regarding the Board’s failure to apply these regulations 

was presented for the first time to the Veterans Court. Groves must first raise these 

allegations before the Board and obtain a final decision before appealing on this basis. 

See 38 U.S.C. §§ 7252, 7266(a). 

2007-7044 3
Likewise, we lack jurisdiction over Groves’ appeal of the Veterans Court finding of no 

CUE as to this determination by the Board. 

Finally, Groves alleges that the Board violated his due process rights for failure to 

comply with the Veterans Claims Assistance Act of 2000 (VCAA) by depriving him of the 

opportunity to obtain and submit additional records to the Board. But Groves was 

represented by counsel below and did not present this constitutional argument to the 

Veterans Court, nor was it considered or decided by that court. Instead, Groves’ motion 

to revise or reverse the March 1981 Board decision on the basis of CUE merely alleged 

that there was noncompliance with the requirements of the VCAA. The Veterans Court 

determined that a claim of CUE is not a claim for veterans’ benefits, and thus, the duties 

associated with claims and applications for benefits provided in the VCAA are 

inapplicable to Groves’ appeal. The Veterans Court also determined that the 

regulations that delineate errors that constitute CUE indicate that the failure of VA to 

fulfill the duty to assist does not constitute CUE, citing 28 C.F.R. § 20.1403(c)-(d). 

As a general rule this court may not consider an argument raised for the first time 

on appeal. See Boggs v. West, 188 F.3d 1335, 1337-38 (Fed. Cir. 1999) (determining 

that the court will not consider statutory interpretation questions presented for the first 

time on appeal). This rule ensures that “parties may have the opportunity to offer all the 

evidence they believe relevant to the issues ... [and] in order that litigants may not be 

surprised on appeal by final decision there of issues upon which they have had no 

opportunity to introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556 (1941). 

Because Groves did not raise his argument concerning the Board’s alleged violation of 

2007-7044 4
2007-7044 5

his due process rights for failure to comply with the VCAA in the Veterans Court, we will 

not consider this argument in the first instance. 

CONCLUSION 

For the foregoing reasons, this appeal is dismissed. 

COSTS 

Each party shall bear its own costs.