NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT L. FEDERICO,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-2564

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-0507, Judge Coral Wong 

Pietsch, Judge William S. Greenberg, Senior Judge 

Kenneth B. Kramer.

______________________ 

Decided: December 28, 2018

______________________ 

 NATHAN S. MAMMEN, Kirkland & Ellis LLP, 

Washington, DC, argued for claimant-appellant. Also 

represented by HANNAH LAUREN BEDARD; JUDY JOANNE 

DONEGAN, The Veterans Consortium Pro Bono Program, 

Washington, DC; EDWARD MICHAEL FARMER, The Law 

Offices of Edward M. Farmer, Aurora, IL; RICHARD 

VALENTINE SPATARO, National Veterans Legal Services 

Program, Washington, DC. 
2 FEDERICO v. WILKIE

KRISTIN MCGRORY, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for respondent-appellee. Also 

represented by CLAUDIA BURKE, ROBERT EDWARD 

KIRSCHMAN, JR., JOSEPH H. HUNT; MARTIE ADELMAN,

AMANDA BLACKMON, BRIAN D. GRIFFIN, Office of General 

Counsel, United States Department of Veterans Affairs, 

Washington, DC.

 ______________________ 

Before NEWMAN, PLAGER, and MOORE, Circuit Judges.

PER CURIAM. 

This is a veterans case. Robert L. Federico (Federico) 

appeals the decision by the Court of Appeals for Veterans 

Claims (Veterans Court), which affirmed the decision by 

the Board of Veterans Appeals (Board). The decision 

denies entitlement to service connection for ischemic 

heart disease. Because we lack jurisdiction, we dismiss.

BACKGROUND

Federico served on active duty in the United States 

Air Force from September 1967 to September 1971. He 

was stationed at the Nakhon Phanom Royal Thai Air 

Force Base (RTAFB) from July 1969 to August 1970. His 

military occupational specialty was munitions specialist, 

and he was assigned to the 456th Munitions Maintenance 

Squadron.

In December 2011, Federico filed a claim with the 

Department of Veterans Affairs (VA) for benefits for 

ischemic heart disease based on herbicide exposure. In 

August 2012, the VA denied Federico’s claim because it 

could not verify herbicide exposure. Federico appealed to 

the Board. The VA continued its denial in a May 2013 

statement of the case and in an August 2015 

supplemental statement of the case. In November 2015, 
FEDERICO v. WILKIE 3

the Board held a hearing. In January 2016, the Board 

affirmed. Federico appealed to the Veterans Court. In 

May 2017, the Veterans Court affirmed. In July 2017, the 

Veterans Court granted Federico’s motion for panel 

decision and ordered that the May 2017 decision remain 

the decision of the court. Federico now appeals to this 

court.

DISCUSSION

Our jurisdiction to review Veterans Court decisions is 

limited by statute. We may review “the validity of a 

decision of the [Veterans] 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). However, unless the appeal presents a 

constitutional issue, we “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)(2).

Regarding our jurisdiction, Federico contends that we 

have jurisdiction for several reasons. We address each in 

turn. First, Federico contends that the Veterans Court 

disregarded 38 U.S.C. § 1154 and 38 C.F.R. § 3.303(a). 

The statute and regulation each require that a 

determination of service connection be made on the basis 

of the veteran’s service as shown by the relevant evidence. 

Federico contends that the Veterans Court violated the 

statute and regulation because the court compared 

Federico’s service to the service of other veterans in 

determining that Federico’s travel on the perimeter road 

of the Nakhon Phanom RTAFB was insufficient to 

establish herbicide exposure. 

While it is true that the Veterans Court considered 

the possible service of other veterans, the court only did so 

when considering Federico’s actual service—as was 

required—to find that Federico was not exposed to 
4 FEDERICO v. WILKIE

herbicides and therefore lacked entitlement to service 

connection. The decision of whether Federico was entitled 

to service connection was based on the facts at issue and 

the application of law and regulation to those specific 

facts. We lack jurisdiction to review such challenges. See 

id.

Second, citing other Board decisions, Federico argues 

that the Board typically concedes herbicide exposure in 

similar circumstances. Federico contends that the 

Veterans Court acted contrary to law by not finding the 

Board’s decision to be arbitrary and capricious in light of 

the Board’s typical practice. Federico’s argument is based 

on Board decisions concerning different veterans and 

different facts. In each case, as is the case here, the 

decision of whether the veteran was entitled to service 

connection was based on the facts at issue and the 

application of law and regulation to those specific facts. 

We lack jurisdiction to review such challenges. See id.

Third, while we may review constitutional claims, we 

lack jurisdiction over claims that are constitutional in 

name only. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. 

Cir. 1999). Federico styles his appeal as raising a 

constitutional issue. Again citing other Board decisions, 

Federico contends that other veterans were granted 

service connection in similar circumstances. He argues 

that the Veterans Court’s denial of service connection 

constitutes an equal protection violation because he was 

treated differently. 

However, Federico’s argument is based on different 

factual scenarios. As previously discussed, the particular 

factual findings and applications of law and regulation to 

fact involved in those other cases were dispositive. The 

same is true here. Federico is actually challenging the 

Veterans Court’s particular factual findings and 

applications of law and regulation to fact that were 
FEDERICO v. WILKIE 5

unfavorable to him. We cannot review such matters. See

38 U.S.C. § 7292(d)(2).

We have considered the remaining arguments raised 

on appeal and find them unpersuasive. Because we lack 

jurisdiction, we must dismiss.

CONCLUSION

For the foregoing reasons, we dismiss the appeal.

DISMISSED

COSTS

No costs.