NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

BURDELL VAUGHN,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2016-1064

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 14-2462, Chief Judge Bruce E. 

Kasold. 

______________________ 

Decided: March 18, 2016

______________________ 

BURDELL VAUGHN, Waukegan, IL, pro se.

ZACHARY JOHN SULLIVAN, 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; CHRISTINA LYNN 

GREGG, BRIAN D. GRIFFIN, Office of General Counsel, 
2 VAUGHN v. MCDONALD

United States Department of Veterans Affairs, Washington, DC.

______________________ 

Before REYNA, WALLACH, and STOLL, Circuit Judges.

PER CURIAM. 

Burdell Vaughn appeals a decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”), which affirmed the Board of Veterans’ Appeals 

(“Board”) decision finding no clear and unmistakable error 

(“CUE”) in the Regional Office’s (“RO”) decision denying 

service connection for residuals of a back injury. Vaughn 

v. McDonald, No. 14-2462 (Vet. App. Aug. 13, 2015). For 

the reasons below, we dismiss for lack of jurisdiction. 

BACKGROUND

Mr. Vaughn served on active duty from May to November 1972. In November 1991, Mr. Vaughn submitted 

a claim to the Department of Veterans Affairs (“DVA”) 

seeking compensation for a service-connected back injury. 

The RO denied his claim in May 1992, determining that 

“this condition existed prior to service and was not aggravated during [Mr. Vaughn’s] military service.” Supplemental Appendix (“S.A.”) 44. The RO also noted that 

Mr. Vaughn had failed to attend scheduled medical examinations. Id. Mr. Vaughn did not appeal the May 1992 

decision, and it became final. 

Mr. Vaughn later filed CUE claims, alleging that 

(1) the May 1992 RO decision incorrectly found that he 

suffered a pre-service spine injury that was not aggravated during service; and that (2) his notice for the scheduled 

examination was sent to the wrong address. The RO 

rejected Mr. Vaughn’s CUE claims in a September 2010 

decision, and the Board affirmed. 

On Mr. Vaughn’s first argument, the Board determined that the RO failed to apply the presumption of 
VAUGHN v. MCDONALD 3

soundness under 38 U.S.C. § 1111, which arises where a 

condition is not noted at the time of entry into service. 

Nevertheless, the Board concluded that “in the May 1992 

decision, it is not clear and unmistakable that the outcome would have been manifestly different if the error 

had not been made” because “there was at that time, no 

evidence whatsoever of a then-current spine disability as 

of May 1992.” S.A. 10. Addressing Mr. Vaughn’s second 

argument of an incorrect address, the Board determined 

that even if the notice was sent to an incorrect address, 

which the record did not support, such error would 

amount to a failure to comply with the duty to assist, 

which “cannot be the basis for a CUE claim.” S.A. 8 

(citing Caffrey v. Brown, 6 Vet. App. 377, 384 (1994)). 

Mr. Vaughn appealed to the Veterans Court, which affirmed the Board’s decision. Mr. Vaughn now appeals to 

this court. 

DISCUSSION

The scope of our review in an appeal from a Veterans 

Court decision is limited. We may review a Veterans 

Court decision with respect to the validity of a decision on 

a rule of law or the validity or interpretation of any statute or regulation that was relied upon by the Veterans 

Court in making the decision. 38 U.S.C. § 7292(a). Unless a constitutional issue is presented, we have no jurisdiction to review questions of fact or the application of a 

law or regulation to a particular set of facts. Id.

§ 7292(d)(2).

To be eligible for disability compensation, a veteran 

must show: “(1) the existence of a present disability; 

(2) in-service incurrence or aggravation of a disease or 

injury; and (3) a causal relationship between the present 

disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 

1166–67 (Fed. Cir. 2004). As we have explained, “the 

presumption of soundness relates to the second element 
4 VAUGHN v. MCDONALD

required to establish a right to disability compensation—

the showing of in-service incurrence or aggravation of a 

disease or injury.” Holton v. Shinseki, 557 F.3d 1362, 

1367 (Fed. Cir. 2009). “The presumption of soundness . . .

does not relieve the veteran of the obligation to show the 

presence of a current disability and to demonstrate a 

nexus between that disability and the in-service injury or 

disease or aggravation thereof.” Id. Here, Mr. Vaughn 

challenges the Board’s finding that there was no evidence 

of record at the time of the May 1992 decision that he had 

a then-current back disability, the first requirement for 

service connection. S.A. 10. But as a factual determination, “we cannot review the VA’s finding that 

[Mr. Vaughn] did not prove a compensable present disability at the time of his . . . claim.” See Conley v. Peake, 

543 F.3d 1301, 1305 (Fed. Cir. 2008). 

Mr. Vaughn further argues that the Board should 

have obtained and considered additional medical records

and that the notices of medical examination were sent to 

an incorrect address. He also argues that the VA was 

“negligent” in failing to escort him to medical appointments as a patient in a VA medical facility. These arguments raise issues with the factual application of the duty 

to assist, and it is “impossible for a breach of the duty to 

assist to form the basis for a CUE claim.” Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2002) (en banc). CUE 

must “be outcome determinative and be based on the 

record that existed at the time of the original decision.” 

Id. (emphasis added). Here, the Veterans Court merely 

applied established law in finding no CUE, which “is factbased and hence beyond our jurisdiction.” See Yates v. 

West, 213 F.3d 1372, 1375 (Fed. Cir. 2000). 

Mr. Vaughn’s remaining arguments likewise fall outside our limited jurisdiction because he only disputes the 

Board’s factual findings or the application of law to fact. 

For example, his argument that that Board unreasonably 

delayed issuing its decision is a factual dispute that we 
VAUGHN v. MCDONALD 5

lack jurisdiction to review. See Spain v. Principi, 

5 F. App’x 874, 875 (Fed. Cir. 2001). 

CONCLUSION

We have considered Mr. Vaughn’s remaining arguments and determine that they fail to raise any legal 

issue within our jurisdiction. For the foregoing reasons, 

we dismiss for lack of jurisdiction. 

DISMISSED

COSTS

No costs.