NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

FREDERICK C. FERMIN,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-1869

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-6360, Judge Coral Wong Pietsch.

______________________ 

Decided: September 23, 2021

______________________ 

FREDERICK C. FERMIN, San Antonio, TX, pro se.

 MARGARET J. JANTZEN, Commercial Litigation Branch, 

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

BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., TARA K.

HOGAN; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Office of 

General Counsel, United States Department of Veterans 

Affairs, Washington, DC. 

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2 FERMIN v. MCDONOUGH

 ______________________ 

Before TARANTO, HUGHES, and STOLL, Circuit Judges.

PER CURIAM. 

Frederick Fermin, a veteran of the U.S. Army, appeals

the decision of the United States Court of Appeals for Veterans Claims in Fermin v. McDonough, No. 20-6360, 2021 

WL 969211 (Vet. App. Mar. 16, 2021). Mr. Fermin primarily argues that the Veterans Court erred by permitting the 

Secretary to file an untimely brief and that the 1949 decision reducing Mr. Fermin’s disability rating from 100% to 

70% contains clear and unmistakable error (CUE). We lack 

jurisdiction to consider these arguments because they involve factual determinations or application of law to fact. 

I 

Mr. Fermin served in the Army from March 1941 to 

September 1945 and from May 1946 to February 1947. In 

February 1947, Mr. Fermin was medically discharged from 

the Army for schizophrenia for which he received a 100% 

disability rating. Following a medical examination that indicated his condition had improved, that disability rating 

was reduced to 70% in March 1949.

Mr. Fermin was subsequently awarded a 100% disability rating, effective January 1981, for two new diagnoses, 

Post Traumatic Stress Disorder and bipolar disorder, that

had previously been diagnosed as schizophrenia. In September 2004, the regional office denied Mr. Fermin an earlier effective date for these new diagnoses, and that 

decision became final when Mr. Fermin did not appeal.

Then in April 2018, Mr. Fermin filed a claim asserting 

CUE in the 1949 and 2004 RO decisions. The CUE claims 

were denied by the RO and the Board. On appeal, the Veterans Court held that several of Mr. Fermin’s CUE allegations were raised for the first time and, therefore, the court 

lacked jurisdiction to consider them, while noting that 

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FERMIN v. MCDONOUGH 3

Mr. Fermin was not barred from properly raising them to 

the RO. The Veterans Court affirmed the Board’s decision 

as to the CUE allegations that were properly raised. And it 

denied Mr. Fermin’s request to reject the Secretary’s brief 

as untimely filed.

II

We have limited jurisdiction over appeals from the Veterans Court. We “decide all relevant questions of law, including interpreting constitutional and statutory 

provisions.” 38 U.S.C. § 7292(d)(1). But we cannot review a 

challenge to a factual determination or a challenge to a law 

or regulation as applied to the facts of a case, except to the 

extent that an appeal presents a constitutional issue. Id.

§ 7292(d)(2); Wanless v. Shinseki, 618 F.3d 1333, 1336 

(Fed. Cir. 2010). 

III

To the extent that Mr. Fermin disputes the Veterans 

Court’s determination that it lacked jurisdiction to hear 

Mr. Fermin’s new CUE arguments (i.e., the 1949 RO rating 

sheet’s listing of “dementia praecox” rather than schizophrenia and the misdiagnosis of PTSD with bipolar disorder as schizophrenia), Appellant’s Br. 4, he does not 

contend that the Veterans Court articulated an incorrect 

legal standard, nor could he because the Veterans Court 

properly cited the governing standard. See Fermin, 2021 

WL 969211, at *4–5 (citing Jarrell v. Nicholson, 20 Vet. 

App. 326, 333 (2006) and Andre v. Principi, 301 F.3d 1354, 

1361 (Fed. Cir. 2002)). Rather, his arguments go to the Veterans Court’s application of that standard, a question we 

lack jurisdiction to consider. 

Likewise, Mr. Fermin’s argument that the Secretary 

filed an untimely brief is also an application of law to fact 

that we cannot consider. And to the extent he attempts to 

reframe this issue (or other asserted regulatory or statutory violations) as a constitutional challenge, we have 

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4 FERMIN v. MCDONOUGH

repeatedly noted that an appellant cannot so evade our jurisdictional limitations. See Helfer v. West, 174 F.3d 1332, 

1335 (Fed. Cir. 1999) (“[An appellant’s] characterization of

[a] question as constitutional in nature does not confer 

upon us jurisdiction that we otherwise lack.”).

Finally, Mr. Fermin argues that the RO improperly reduced his 100% disability rating to 70% in its 1949 decision 

and improperly denied an earlier effective date in its 2004 

decision. Appellant’s Br. 4–5, 9. Specifically, Mr. Fermin 

asserts that the 1949 RO rating sheet is CUE because it 

incorrectly characterized Mr. Fermin’s service as “no combat” and that the RO committed CUE in 2004 by failing to 

inform him of the effective date. Id. The Veterans Court 

affirmed the Board’s decision on these CUE claims, stating 

that Mr. Fermin made no argument to the Veterans Court 

that the Board erred as to those claims. Fermin, 2021 WL 

969211, at *4–5. Mr. Fermin has identified no legal error 

in that affirmance, and we accordingly dismiss. 

IV

Because we lack jurisdiction to consider the arguments 

raised on appeal, we dismiss. 

DISMISSED

No costs.

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