NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

CORY D. BECK,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2019-2448

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 18-732, Judge Amanda L. Meredith.

______________________

Decided: January 15, 2021

______________________

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant. 

 SHARI A. ROSE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented 

by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT 

EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, BRANDON A.

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2 BECK v. WILKIE

JONAS, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

 ______________________

Before TARANTO, BRYSON, and HUGHES, Circuit Judges.

PER CURIAM.

Appellant Cory D. Beck challenges the decision of the 

Court of Appeals for Veterans Claims (“the Veterans 

Court”), which rejected his claim that the Board of Veterans’ Appeals committed clear and unmistakable error 

when it denied his claim to benefits in 1989. We dismiss 

the appeal for lack of jurisdiction.

I

Mr. Beck asks this court to interpret 38 U.S.C. 

§ 1112(a)(1), a statute favorable to veterans in certain veteran benefits cases.1 For purposes of establishing a veteran’s entitlement to benefits for a service-connected injury 

or disease, section 1112(a)(1) creates a presumption of service connection in certain cases based on evidence of postservice disease. Specifically, section 1112(a)(1) provides 

that if a chronic disease becomes “manifest to a degree of 

10 percent or more within one year from the date of separation,” the disease will be regarded as incurred in or aggravated by the veteran’s service, even if there is no 

medical record of the disease during the period of service. 

Section 1112(a)(1) provides that the presumption is “subject to section 1113.” Section 1113 provides, inter alia, that 

“[w]here there is affirmative evidence to the contrary,” 

1 At the time of Mr. Beck’s original claim at issue in 

this case, the statute was codified as 38 U.S.C. § 312(a)(1). 

It has been recodified as 38 U.S.C. § 1112(a)(1). For simplicity, we refer to the statute by its current designation.

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BECK v. WILKIE 3

service-connection pursuant to section 1112 “will not be in 

order.” Id. § 1113(a).

Mr. Beck does not dispute that the presumption set out 

in section 1112 can be rebutted by contrary evidence under 

section 1113. His argument regarding the proper interpretation of section 1112 is that if the veteran introduces any 

evidence that a chronic disease covered by section 1112 is 

manifest to a degree of 10 percent or more within one year 

from the date of the veteran’s separation from service, the 

presumption of section 1112 is triggered even if there is 

conflicting evidence, including a contradictory diagnosis. 

The government argues that Mr. Beck’s interpretation of 

section 1112 is erroneous. Citing Madden v. Gober, 125 

F.3d 1477 (Fed. Cir. 1997), the government contends that 

the section 1112 presumption of service connection does not 

apply if the Board concludes from conflicting evidence that 

the disease did not become manifest to a degree of 10 percent or more within a year of the veteran’s separation.

II

Mr. Beck served on active duty in the United States 

Navy from February 1977 to April 1978. Shortly after his 

separation from service, he was hospitalized for six weeks 

with a diagnosis of paranoid schizophrenia. He was subsequently transferred to a Veterans Administration hospital, 

where he was diagnosed with drug abuse and an antisocial 

personality, not schizophrenia. Two years later, Mr. Beck 

was again hospitalized, this time with a diagnosis of explosive personality.

In 1987, Mr. Beck filed a claim for veterans’ benefits, 

alleging service-connected “aggravation of psychosis.” A 

regional office of the Veterans Administration denied his 

claim, finding that there was no objective evidence that Mr. 

Beck suffered from chronic psychosis, either in service or 

within one year from his separation from service.

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4 BECK v. WILKIE

On appeal, the Board of Veterans’ Appeals acknowledged that a chronic disease will be presumed to have been 

incurred in service if it becomes manifest to a degree of 10% 

within one year of the veteran’s discharge, even if there is 

no evidence of the disease during service. The Board noted, 

however, that the evidence as to Mr. Beck’s disease was 

mixed. The Board pointed out that although Mr. Beck was 

diagnosed with paranoid schizophrenia at one hospital, 

that diagnosis “was not substantiated, and it was not, in 

fact, until early 1987 that any emotional difficulties previously experienced by the veteran could reasonably be perceived as having achieved the proportions of an acquired 

psychiatric disorder.” Accordingly, in January 1989, the 

Board concluded that there was “a distinct absence of information sufficiently supportive of the requisite diagnosis 

within a period sufficiently proximate to service” and that

schizophrenia therefore could not be presumed to have 

been incurred in service.

Mr. Beck sought to reopen his claim in 2012. A medical 

examination report at that time concluded that he was suffering from schizophrenia and expressed the opinion that 

the condition was related to his period of service between 

1977 and 1978. Following that report, a regional office of 

the Department of Veterans Affairs granted Mr. Beck’s 

claim in August 2012. The regional office assigned him a 

100% disability rating as of January 10, 2012, the date of 

his request for reopening. That decision was not appealed 

and became final.

In 2014, Mr. Beck sought revision of the 1989 Board’s

decision, claiming that it contained clear and unmistakable 

error (“CUE”). He argued that in light of his diagnosis of 

schizophrenia in 1978, which occurred within one year of 

his separation from service, the Board should have 

awarded him service-connected compensation effective as 

of the day after his discharge. In October 2017, the Board 

rejected Mr. Beck’s CUE claim. It noted that the 1989 

Board’s decision considered his April 1978 diagnosis of 

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BECK v. WILKIE 5

schizophrenia, but took into account contrary evidence, including his diagnosis of drug abuse and antisocial behavior, 

his diagnosis of explosive personality, and an assessment 

that he was suffering from a personality disturbance designated as drug addiction. The 2017 Board therefore concluded that Mr. Beck’s challenge to the 1989 Board’s

decision denying the presumption of service connection was 

merely “a disagreement with how the facts were weighed.” 

Because a “disagreement as to the weight that should have 

been afforded the evidence does not rise to the level of 

CUE,” the 2017 Board denied the motion to reverse the 

1989 Board’s decision on the ground of CUE.

On appeal to the Veterans Court, Mr. Beck argued that 

the presumption of service connection under section 1112 

applies so long as there is some evidence that a qualifying 

disease manifested to the requisite degree within the oneyear period after separation, even if other evidence indicates the contrary. For that reason, he argued, the 2017 

Board should have found that the 1989 Board committed 

CUE when it found that, on balance, the evidence had not 

shown that Mr. Beck was suffering from schizophrenia 

within a year of his separation from service.

The Veterans Court found it unnecessary to address 

the proper interpretation of section 1112. Instead, it held 

that “even assuming that the Board in 2017 erred as a matter of law in concluding that the Board in 1989 was not required to find that the presumption of service connection 

under section 1112 attached,” the error was harmless. The

court explained that the 2017 Board’s refusal to apply the 

presumption did not affect the essential fairness of the 

1989 adjudication or the 2017 Board’s determination that 

the 1989 Board’s decision did not contain CUE.

The court explained that because the presumption set 

forth in section 1112(a)(1) is rebuttable, as section 1113(a) 

provides, it was not enough for Mr. Beck to show that the 

presumption should have applied; in order to show 

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6 BECK v. WILKIE

entitlement to service connection for his disease, he was required to demonstrate that the evidence of record in 1989 

was insufficient to rebut the presumption. Because Mr. 

Beck did not allege that the evidence of record in 1989 was 

legally insufficient to rebut the presumption, the court concluded that even if the 2017 Board erred in its interpretation of section 1112, Mr. Beck “has not demonstrated that 

the Board could have found CUE in the 1989 Board decision because he has not demonstrated that the outcome of 

the 1989 Board decision would have been manifestly different.”

III

On appeal, Mr. Beck argues that the Veterans Court 

erred by relying on a misinterpretation of 38 U.S.C. § 1112. 

He further contends that the 1989 Board and the 2017 

Board also misapplied section 1112. Finally, he contends 

that the Veterans Court erroneously interpreted section 

1112 in a way that infected its harmless error analysis.

There is a jurisdictional problem with Mr. Beck’s arguments.. This court’s jurisdiction to review decisions of the 

Veterans Court is limited. Section 7292(a) of Title 38 provides, in relevant part, that a party may appeal from a decision of the Veterans Court “with respect to the validity of 

a decision of the 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 Court in making the decision.” 38 U.S.C. § 7292(a). 

The statute further provides that this court “shall hold unlawful and set aside any regulation or any interpretation 

thereof (other than a determination as to a factual matter) 

that was relied upon in the decision” of the Veterans Court, 

and that, except to the extent that a case presents a constitutional issue, this court “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.” Id. 

§ 7292(d).

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BECK v. WILKIE 7

In this case, Mr. Beck claims to be challenging the interpretation of a statute—section 1112(a)—by the Veterans 

Court. But his challenge is not within our jurisdiction, because the Veterans Court did not rely on an interpretation 

of section 1112(a) in making its decision. To the contrary, 

the Veterans Court expressly declined to interpret that 

statute. Instead, the Veterans Court ruled that even if it 

were to adopt Mr. Beck’s interpretation of the statute, it 

would still uphold the decision of the Board of Veterans’ 

Appeals. For that reason, the court concluded, any error in 

the Board’s interpretation of section 1112 was harmless.

Mr. Beck’s legal theory is that section 1112 requires the 

presumption of service connection to be applied if there is 

at least some evidence that the disease in question manifested itself to a 10% degree of disability within one year of 

the veteran’s discharge, regardless of any evidence to the 

contrary. Mr. Beck acknowledges that the presumption set 

forth in section 1112 is rebuttable under section 1113. He 

argues, however, that contrary evidence may be considered 

under section 1113 only for purposes of determining 

whether the presumption, once established, has been rebutted. In other words, he contends that rebuttal evidence 

cannot be considered in determining whether the presumption is available under section 1112 in the first instance. 

But the question Mr. Beck asks us to resolve regarding the 

interpretation of section 1112 is precisely the legal issue 

that the Veterans Court found unnecessary to address.

The only issue the Veterans Court decided in this case 

was whether, assuming Mr. Beck’s interpretation of section 

1112 is correct, the Board’s error in interpreting the statute 

was harmless as a factual matter. It is well settled that 

this court lacks jurisdiction to review such harmless error 

determinations by the Veterans Court. See, e.g., Jones v. 

Wilkie, 964 F.3d 1374, 1381 (Fed. Cir. 2020); Pitts v. 

Shinseki, 700 F.3d 1279, 1286–87 (Fed. Cir. 2012); 

Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 

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8 BECK v. WILKIE

2007); Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 

2004).

In response to questions at oral argument, counsel for 

Mr. Beck argued that even though the Veterans Court

based its decision on harmless error, this court still has jurisdiction over his appeal because the harmless error determination itself was based on a misinterpretation of 

section 1112. For that reason, his argument suggests, the 

Veterans Court’s ruling “relied on” the interpretation of a 

statute within the meaning of our jurisdictional statute, 

section 7292(a). 

The problem with that argument is that the Veterans 

Court assumed that Mr. Beck’s legal interpretation of section 1112 was correct before finding, as a factual matter, 

that any error in construing that statute would be harmless. Because the Veterans Court concluded that Mr. 

Beck’s CUE claim would have failed regardless of how the 

Board interpreted section 1112, the court’s ruling could not

have been based on an interpretation of section 1112 that 

was adverse to Mr. Beck. Accordingly, the jurisdictional 

test of section 7292 has not been satisfied.2

2 In his reply brief, Mr. Beck argues that the Veterans Court’s harmless error analysis was legally flawed because it impermissibly relieved the agency of the burden of 

showing that his disease was not incurred in service, a burden that Mr. Beck contends the agency could not have met. 

We disagree. The court found that in the CUE context Mr. 

Beck was required to show that the evidence of record in 

1989 was legally insufficient to rebut the section 1112(a)(1) 

presumption and that he failed to do so; that is to say, the 

court found that the evidence was sufficient to justify a conclusion that Mr. Beck’s disease was not incurred or aggravated in service. We discern no legal error in the court’s 

reasoning. 

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BECK v. WILKIE 9

Because we lack jurisdiction to address the fact-based

harmless error determination, which was the only issue decided by the Veterans Court, we must dismiss this appeal.

DISMISSED

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