NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7281

DEREK K. RIVERS, Claimant-Appellant,

v.
GORDON H. MANSFIELD, Acting Se cretary of Veterans Affairs,

Respondent-Appellee.

Derek Rivers , of Inglewood, California, pro se. Courtney E. Sheehan , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for respondent appellee. With him on the brief were Peter D. Keisler , Acting Attorney General, Jeanne E. Davidson , Director, and Kenneth M. Dintzer , Assistant Director. Of counsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Jamie L. Mueller , Attorney, United States Department of Veterans Affa irs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge Robert N. DavisNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7281

DEREK RIVERS, Claimant-Appellant,

v.

GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs, Respondent-Appellee.

__________ ________________ DE CIDED: December 6, 2007

__________________________ Before SCHALL and MOORE, Circuit Judges , and MORAN, District Judge

. ∗ PER CURIAM.

DECISION Derek Rivers appeals the final decision of the United States Co urt of Appeals for Veterans Claims (“Veterans Court”) affirmi ng the Board of Veterans’ Appeals’ (“Board”) denial of his motion for revision of an Apri l 2003 Board decision on the basis of clear and unmistakable error (“CUE”). Rivers v. Nicholson , No. 04-1633 (Vet. App. July 3,

∗ Honorable James B. Moran, Senior Di strict Judge, United States District Court for the Northern District of Illinois, sitting by designation.2007) (“ CUE Appeal ”). Because this appeal involves is sues that fall outside the scope of our jurisdiction, we dismiss

. DISCUSSION
I. Mr. Rivers served on active duty in the U.S. Marine Corps from November 1974 to June 1977. In May 1994, a VA Regiona l Office (“RO”) granted Mr. Rivers service connection for bilatera l chondromalacia patella 1 and assigned to the condition a noncompensable rating. After subsequent medical examinations , however, the RO increased the disability rating for each knee to 10% effective August 5, 1991 – the date of the original claim. Fo llowing the RO’s decis ion, Mr. Rivers appealed to the Board, claiming that his condition sh ould be assigned a rating in ex cess of 10%. In December 1996, the Board denied the cl aim, affirming the RO’s ra ting of 10%. Mr. Rivers appealed the Board’s decision to the Veter ans Court, which found the VA medical examinations to date insufficient to evaluate the extent of Mr. Rivers’ injuries. The court therefore vacated the Board’s decision and remanded the case for further medical evaluation of Mr. Rivers’ condition. Mr. Rivers subsequently underwent k nee examinations in October 1998, February 1999, and January 2002. In August 2002, and on reconsideration in April 2003, the Board again denied his claim that he was entitled to a disability rating in excess of 10% for each knee. Subsequently, Mr. Rivers f iled a motion for revision alleging CUE in the April 2003 Board decision. Among other things, Mr. Rivers argued that the Board did not consider certain of his medical records from 1998 – which noted

1 Chondromalacia of the left and right knees.

2007-7281 2limited knee flexibility, pain, and “ankylos is” of both knees – because those records were not in his file. Mr. Rivers alleged that his claim should have been evaluated under 38 C.F.R. § 4.71a, diagnostic code 5256 (“Knee, ankylosis of”), which corresponds to a higher disability rating. On July 15, 2004, the Board issued a decis ion that found no CUE in its prior April 2003 decision. In re Rivers , No. 03-13 470 (Bd. Vet. App. July 15, 2004). The Board explained that it had, in fact, consider ed the 1998 medical records in denying Mr. Rivers’ claim, but that it had discounted the probative value of those records in light of other, more credible evidence. Id. , slip op. at 24. The Board noted that its prior decision “clearly explained the basis for its conclusion that the [1998 medical records] showed findings extremely out of proportion to objective ev aluations over many years, including contemporaneous reports.” Id. With regard to the merits of Mr. Rivers’ claim, the Board concluded that the weight of the evidence did not support a finding that Mr. Rivers suffered from ankylosis of either knee. Id. , slip op. at 25. Ha ving found no CUE, the Board denied the motion for revisi on of its prior April 2003 decision. Mr. Rivers appealed to the Veterans C ourt, which affirmed. The court agreed with the Board’s conclusion that the Apr il 2003 decision consider ed the 1998 medical records, as the decision “express ly referred to those documents.” CUE Appeal at 3-4. With respect to the probative value of those records, the court noted that “the April 2003 Board decision considered the contempor aneous examinations and Mr. Rivers’s demeanor and afforded minimal weig ht to those documents.” Id. at 4. The court found that Mr. Rivers’ disagreement with how the facts in his ca se were weighed or evaluated “cannot constitute CUE.” Id.

2007-7281 32007-7281 4 II. Congress has limited our jurisdiction over a decision of the Veterans Court to those appeals that challenge the validity of any stat ute or regulation (or interpretations thereof) and appeals that raise any constitutional controversies. See 38 U.S.C. § 7292(a). Our jurisdiction does not extend to appeals objecting to factual determinations or to the law as applied to the facts of a par ticular case, unless there is a constitutional issue present. See 38 U.S.C. § 7292(d)(2). On appeal, Mr. Rivers argues that the Boar d committed CUE in failing to classify his condition under diagnostic code 5256 for “ ankylosis” of the left and right knees, as indicated in his 1998 medical records. T he decision to classify a veteran’s condition under any particular diagnostic code, however, is a question of fact beyond the reach of our jurisdiction. We note that, in his repl y brief, Mr. Rivers’ appears to argue that the Board committed CUE by failing to consider his 1998 medical record s. To the extent that Mr. Rivers’ appeal raises th at issue, it too is a questi on of fact. Below, the Board and Veterans Court both reviewed the Apr il 2003 decision and c oncluded that the decision did, in fact, consider the 1998 medica l records in rejecting Mr. Rivers’ claim. There is no jurisdictional basis for our review of that determination. Because none of Mr. Rivers’ claims fall within our jurisdiction, 2 we dismiss.

2 In his reply brief, Mr. Rivers argues that he has been denied “due process of law” because the Board and Veterans Court “misunderstood the issue.” This case, however, does not present any c onstitutional concerns. In any event, it is clear that neither the Board nor the Veterans Cour t misunderstood the issues before it.