NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ANTHONY BEJARANO,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2015-7034

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 13-2463, Judge Alan G. Lance Sr.

______________________ 

Decided: June 11, 2015

______________________ 

 ANTHONY BEJARANO, San Jose, CA, pro se.

JANA MOSES, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, for respondent-appellee. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D.

AUSTIN; MARTIN JAMES SENDEK, DAVID J. BARRANS, Office 
 2 BEJARANO v. MCDONALD

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

______________________ 

Before LOURIE, DYK, and MOORE, Circuit Judges.

PER CURIAM. 

Anthony R. Bejarano appeals a decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”) affirming a decision by the Board of Veterans’ 

Appeals (“Board”). The Board concluded that Mr. Bejarano had not submitted new and material evidence to 

reopen his claim for benefits for service-connected posttraumatic stress disorder. We dismiss for lack of jurisdiction.

BACKGROUND

Mr. Bejarano is a Vietnam-era veteran who served in 

the Army beginning on March 4, 1968. During his service, 

he had four periods of absences without leave (“AWOL”), 

totaling 944 days. Faced with a court martial for a continuous AWOL of 29 months, Mr. Bejarano requested 

discharge for the good of the service, allegedly stating 

that he “hate[d] the Army” and would do almost “anything 

. . . to get out.” On July 26, 1973, the request was approved, and he was discharged “under other than honorable conditions.”

If a veteran receives a discharge under other than 

honorable conditions, issued for an AWOL for a continuous period of at least 180 days (the situation here), the 

discharge bars a claim for veterans’ benefits unless there 

are “compelling circumstances” to warrant the prolonged 

absence. 38 C.F.R. § 3.12(c)(6). A “discharge [under otherthan-honorable conditions] is a bar to the payment of 

benefits unless it is found that the person was insane at 
BEJARANO v. MCDONALD 3

the time of committing the offense causing such discharge

. . . .” 38 C.F.R. § 3.12(b); see also 38 C.F.R. § 3.354(a).

In 1976, the veteran submitted a claim for disability 

benefits for a cyst condition with the Department of 

Veterans Affairs (“VA”) Regional Office (“RO”), which was 

denied as barred by Mr. Bejarano’s other-than-honorable 

discharge. Mr. Bejarano thereafter unsuccessfully sought 

a discharge upgrade from the Army Discharge Review 

Board. In November 1984, the VA denied Mr. Bejarano 

JOBS program benefits because of his other-thanhonorable discharge. Mr. Bejarano did not appeal this 

decision, and it became final.

In 2001, Mr. Bejarano filed a claim seeking benefits 

for various injuries, and the VA denied it, apparently 

relying on its November 1984 decision, which determined

the status of his discharge and his eligibility for benefits. 

The VA informed Mr. Bejarano that he needed to submit 

new and material evidence to reopen his November 1984 

claim. Ultimately, while the Board acknowledged Mr. 

Bejarano did submit new evidence, it refused to reopen 

the claim on the ground that the November 1984 decision 

was final, that the veteran’s discharge thus barred the 

claim, and that the new evidence submitted did not

qualify as material evidence of insanity at the time of 

committing the offense. 

On appeal at the Veterans Court, Mr. Bejarano alleged errors in the Board’s conclusion that new and material evidence had not been submitted on the issue of 

insanity. The Veterans Court affirmed.1

1 Mr. Bejarano also contended that the Board and 

the VA’s hearing officers did not satisfy their duties to 

notify and explain the applicable regulations. The Veterans Court rejected his contentions, finding that he was 

 
 4 BEJARANO v. MCDONALD

DISCUSSION

Under 38 U.S.C. § 7292, we have jurisdiction to 

review decisions of the Veterans Court on issues of law 

but not on issues of fact or application of law to fact. See 

Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed. Cir. 2012) 

(citing Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 

2002) (en banc)).

Under 38 C.F.R. § 3.156(a), a veteran may reopen a 

final claim by submitting new and material evidence. 

Material evidence is evidence that “relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. 

§ 3.156(a). New and material evidence can be “neither 

cumulative nor redundant of the evidence of record . . . 

and must raise a reasonable possibility of substantiating 

the claim.” Id.

 The new evidence submitted by Mr. Bejarano included 

character references, statements explaining the challenges he encountered during service, evidence that he suffered from post-traumatic stress disorder (“PTSD”), expert 

statements that Mr. Bejarano did not personally write the 

statement that he “hate[d] the Army,” lay testimony 

about Mr. Bejarano’s age, family hardship, mental issues, 

and drug use, as well as testimony that he got married, 

worked, and went on with his life after his discharge. It 

was apparently unclear whether the evidence of PTSD or 

mental issues related to the time of Mr. Bejarano’s AWOL 

or only to some later time thereafter. The Board concluded that the “evidence merely confirms and elaborates 

upon the essential facts of record at the time of the Noeither sufficiently notified by the Board and the VA’s 

hearing officers or had actual knowledge of the basis for 

his prior denials. Mr. Bejarano does not argue these 

issues on appeal to this court.

 
BEJARANO v. MCDONALD 5

vember 1984 decision,” Appellee’s App. 17, and did not 

show that he was insane at the time of the AWOL. On 

appeal, the Veterans Court did not directly address this 

issue, finding that it was not properly raised by the veteran at the Veterans Court because he submitted only a 

“conclusory, unsupported statement in his opening brief.” 

Id. at 2. Whether this contention was properly raised 

presents a fact issue not within our jurisdiction. 

The veteran thus raises no legal issues within our 

jurisdiction.

DISMISSED

COSTS

No costs.