NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ISAAC LYNCH, JR.,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-2224

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-4569, Judge William S. Greenberg.

______________________ 

Decided: March 10, 2022

______________________ 

ISAAC J. LYNCH, JR., Petersburg, VA, pro se. 

 ELINOR JOUNG KIM, Commercial Litigation Branch, 

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

BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY. 

 ______________________ 

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2 LYNCH v. MCDONOUGH

Before PROST, BRYSON, and STOLL, Circuit Judges.

PER CURIAM. 

Isaac Lynch, Jr. appeals from a judgment of the United 

States Court of Appeals for Veterans Claims affirming-inpart and dismissing-in-part the decision of the Board of 

Veterans’ Appeals. For the below reasons, we affirm-inpart and dismiss-in-part Mr. Lynch’s appeal. 

BACKGROUND

Mr. Lynch participated in the Reserve Officer Training 

Corps (ROTC) Program’s summer camp in 1969 and served 

on active duty in the U.S. Army from September to December 1970. Since his discharge, Mr. Lynch has raised, and 

the Veterans Administration (VA) has adjudicated, numerous claims for benefits, many of which we addressed in a 

previous appeal. See Lynch v. Shinseki, 476 F. App’x 401 

(Fed. Cir. 2012) (Lynch I). 

In the years since Lynch I, Mr. Lynch has sought to reopen prior claims or assert new claims. In a June 2020 decision, the Board found there was not new and material 

evidence to reopen 22 of Mr. Lynch’s claims; denied service 

connection for 21 claims; denied an initial disability rating 

in excess of 10% for tinnitus; and granted an effective date 

of July 3, 2013, for bilateral hearing loss and tinnitus.1 

Appx. 16–20.2 

1 The Board also found that there was new and material evidence to reopen a previously denied claim of service connection for an acquired stress disorder and 

assigned an effective date of July 3, 2013, for the award of 

service connection for bilateral hearing loss and tinnitus. 

The Veterans Court did not disturb these favorable findings. Appx. 1 n.1.

2 Citations to “Appx.” refer to the Appendix attached 

to the appellee’s brief.

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LYNCH v. MCDONOUGH 3

Mr. Lynch appealed the Board’s decision to the Court 

of Appeals for Veterans Claims (Veterans Court), alleging 

that: (1) the VA miscalculated his period of active service;

(2) the Board misapplied the applicable law and failed to 

obtain all his service treatment and private medical records; and (3) the VA and others, through conduct unrelated 

to the decision on appeal, violated the Civil Rights Act of 

1964 and the Health Insurance Portability and Accountability Act (HIPAA). Lynch v. McDonough, No. 20-4569, 

2021 WL 2176891 (Vet. App. May 28, 2021); Appx. 1–2, 6. 

The Veterans Court affirmed-in-part and dismissed-inpart.

First, the Veterans Court concluded that the Board correctly determined Mr. Lynch’s period of active service. 

Appx. 6–7. Mr. Lynch argued that his active service period 

should include his time enrolled in the ROTC program

while attending Virginia State College and in the Army Reserves. But the court clarified that these activities do not 

qualify as “active duty,” which is defined as “full-time duty 

in the Armed Forces, other than active duty for training.” 

38 U.S.C. § 101(21)(A). The court also concluded that these 

activities do not qualify as “active duty for training,” which

is defined as “duty performed by a member of a Senior Reserve Officers’ Training Corps program when ordered to 

such duty for the purpose of training . . . .” 38 U.S.C. 

§ 101(22)(D). The court determined that the Board 

properly applied these statutory definitions to exclude 

Mr. Lynch’s time in the ROTC and the Army Reserves from 

its calculation of his active service time. The court thus 

“f[ound] no error in” the Board’s calculation of Mr. Lynch’s 

period of active service. Appx. 7.

Next, the court determined that the Board’s findings 

related to the merits of Mr. Lynch’s claims were not clearly 

erroneous. Appx. 7–9. The court explained that, in declining to reopen 22 claims because there was no new and material evidence, the Board discussed the factual and 

procedural history of each claim and the new evidence 

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4 LYNCH v. MCDONOUGH

submitted before finding that the new evidence was either 

cumulative or not material. Similarly, the court explained 

that the Board’s findings denying service connection for 21 

claims were supported by “detailed explanations.” Appx. 7. 

The court concluded likewise for the Board’s determinations: (1) not to award an effective date earlier than July 

3, 2013, for bilateral hearing loss and tinnitus and (2) to 

award a disability rating of 10% for tinnitus. In making 

these determinations, the court explained, the Board “discussed at length the history of [Mr. Lynch]’s claims for 

these conditions” and appropriately applied the applicable 

law. Appx. 8–9. In sum, the court concluded that none of 

the Board’s findings regarding Mr. Lynch’s claims were 

clearly erroneous because the Board “provided an adequate 

statement of reasons or bases for” its factual findings. 

Appx. 7–9. The court therefore affirmed the Board’s determination on the merits for these claims. 

Finally, the court addressed Mr. Lynch’s contention 

that the VA violated the Civil Rights Act of 1964 and 

HIPAA. Because those allegations did not challenge any 

portion of the Board’s decision, the court determined it did 

not have jurisdiction to address them. Appx. 9 (citing 

38 U.S.C. § 7252). The court dismissed that portion of 

Mr. Lynch’s appeal.

Mr. Lynch appeals. We have jurisdiction under 

38 U.S.C. § 7292.

DISCUSSION

We have limited jurisdiction to review decisions of the 

Veterans Court. We may not review the Board’s factual 

findings, nor the Board’s application of law to fact. 

38 U.S.C. §§ 7292(c), (d)(2); see also, e.g., Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004). Our review is 

limited to legal challenges regarding the “validity of any 

statute or regulation or any interpretation thereof, and to 

interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” § 7292(c). 

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LYNCH v. MCDONOUGH 5

On appeal, Mr. Lynch again argues that (1) the VA 

miscalculated his period of “active duty”; (2) the Board 

should have reopened or granted service connection for certain claims; (3) certain records are erroneously not in his 

VA file; and (4) the VA and others, through conduct unrelated to the Board’s decision on appeal, violated various 

statutes, including, among others, the Civil Rights Act of 

1964, the Equal Employment Opportunity Commission 

(EEOC) program, and HIPAA. We affirm in part and dismiss in part. 

We start with Mr. Lynch’s argument that the Board 

miscalculated his “active duty” period by failing to include

his time in the ROTC program at Virginia State College. 

As the Veterans Court explained, only certain types of service are considered “active duty” or “active duty for training” for benefits purposes. Appx. 6–7 (citing § 101(21)(A)–

(22)(D)). The Board determined, and the Veterans Court 

agreed, that time spent participating in an ROTC program 

does not qualify as “active duty” or “active duty for training” as defined in the relevant statutes, § 101(21)(A) and 

(22)(D). Appx. 6–7, 30. On appeal, Mr. Lynch does not 

challenge the validity or constitutionality of any statute, 

but only the Board’s determination that his time spent in 

an ROTC program did not fall within the statutory definitions of “active duty” or “active duty for training.” Put otherwise, Mr. Lynch only challenges the Board’s application 

of the relevant law to the facts of his case. We lack jurisdiction to review Mr. Lynch’s challenge and therefore dismiss this portion of his appeal. § 7292(d)(2) (we may not 

review “a challenge to a factual determination” or “a challenge to a law or regulation as applied to the facts of a particular case”). 

We turn next to Mr. Lynch’s arguments that the Board 

should reopen or grant service connection for certain 

claims. The Board may reopen a claim for benefits “[i]f new 

and material evidence is presented.” 38 U.S.C. § 5108(a). 

Whether evidence presented by a veteran is “new and 

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6 LYNCH v. MCDONOUGH

material” is a finding of fact. See Livingston v. Derwinski, 

959 F.2d 224, 225–26 (Fed. Cir. 1992). Here, the Board 

found that the evidence submitted by Mr. Lynch was either 

cumulative to previously submitted evidence (i.e., was not 

new) or was not material. Appx. 30–46. Accordingly, the 

Board did not reopen Mr. Lynch’s various claims for benefits. Mr. Lynch now appeals those factual findings. Because we do not have jurisdiction to review the Board’s 

factual findings, we also dismiss this portion of his appeal. 

See Livingston, 959 F.2d at 226 (dismissing appeal challenging Board’s finding that new and material evidence 

had not been submitted). 

Similarly, we do not have jurisdiction to consider 

Mr. Lynch’s argument that the Veterans Court erred in not 

ordering the VA to grant service connection for various 

claims. In order to receive compensation for disabilities, “a 

veteran must show ‘service-connection.’” Davis v. Principi, 

276 F.3d 1341, 1343 (Fed. Cir. 2002); see also 38 U.S.C. 

§ 1110. As we explained in Lynch I, “[e]stablishing that an 

injury is service-connected is a factual” finding that “this 

court cannot review.” 476 F. App’x at 405–06 (citing 

38 U.S.C. § 7292(e)(1)). Here, Mr. Lynch challenges only 

the Board’s finding that he failed to establish service connection for certain claims. We do not have jurisdiction to 

review these findings of fact. Accordingly, we dismiss the 

portions of Mr. Lynch’s appeal regarding reopening or 

granting service connection for certain disability claims. 

Mr. Lynch also argues that the VA should have included certain records in his file, citing the Veterans 

Claims Assistance Act (VCAA). The VCAA created the 

VA’s “duty to assist,” which obligates the VA to “make reasonable efforts to assist a claimant in obtaining evidence 

necessary to substantiate” his claim for benefits. 38 U.S.C. 

§ 5103A(a)(1). As we explained in Lynch I, the “VA’s compliance with the VCAA is outside our jurisdiction” because 

such an inquiry “involves factual issues.” 476 F. App’x at 

406; see also, e.g., Garrison v. Nicholson, 494 F.3d 1366, 

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LYNCH v. MCDONOUGH 7

1370 (Fed. Cir. 2007) (“[D]etermining compliance with [the 

duty to assist] is a fact issue.”). As we did in Lynch I, we

dismiss this portion of Mr. Lynch’s appeal for lack of jurisdiction.

Mr. Lynch next alleges that the VA and others violated 

various statutes, regulations, or programs.3 Specifically, 

Mr. Lynch alleges that his former employers, both during 

and after his time of active service, discriminated against 

him in violation of various statutes. Mr. Lynch raised similar allegations in Lynch I. See 476 F. App’x at 406 (noting 

that “Mr. Lynch cite[d] 14 statutes and regulations . . . that 

he assert[ed]” were violated). As we explained in that case, 

“arguments that do not relate to the claims on appeal,” 

such as those “asserting employment discrimination or 

workers compensation,” cannot properly be raised before 

the Veterans Court. Id. Here, the Veterans Court properly 

determined that it did not have jurisdiction to address 

these claims. Appx. 9. As in Lynch I, we affirm the Veterans Court’s determination that it lacks jurisdiction over 

these claims. See 476 F. App’x at 406. 

Finally, on appeal to this court, Mr. Lynch alleges the 

violation of various laws, regulations, and programs that 

he did not raise before the Veterans Court. We do not have 

jurisdiction over claims related to Mr. Lynch’s civilian career or claims of alleged violations that are raised for the 

first time on appeal. See 38 U.S.C. §§ 7292(c), (d)(1)–(2). 

We thus dismiss this portion of Mr. Lynch’s appeal. 

3 Mr. Lynch alleges violations of HIPAA; the Civil 

Rights Act of 1964; the Morill Acts of 1862 and 1890; the 

Office of Workers’ Compensation Program (OWCP); the Vietnam Era Veterans’ Readjustment Assistance Act 

(VEVRAA); the Uniformed Service Employment and 

Reemployment Rights Act (USERRA); the Federal Employees’ Compensation Act (FECA); and the EEOC program. 

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8 LYNCH v. MCDONOUGH

CONCLUSION

Accordingly, we affirm-in-part and dismiss-in-part the 

judgment of the Veterans Court. 

AFFIRMED-IN-PART AND DISMISSED-IN-PART

COSTS

Costs to Appellee.

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