N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
RUBEN G

. HERRERA, Claimant

- Appellant

v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________
2022

- 1051

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No

. 20

- 4109, Judge Coral Wong Pietsch, Judge Joseph L

. Toth, Judge Scott Laurer.

______________________
Decided: June 8 , 2022

______________________
R UBEN G. H ERRERA , San Antonio, TX, pro se.

E LINOR J OUNG K IM , Commercial Litigation Branch,Civil Division, United States Department of Justice, Washi ngton, DC, for respondent

- appellee. Also represented by B RIAN M. B OYNTON , T ARA K. H OGAN , P ATRICIA M. M C C ARTHY

.

______________________ Case: 22-1051 Document: 20 Page: 1 Filed: 06/08/2022HERRERA v

. MCDONOUGH 2

Before R EYNA , H UGHES , and S TOLL , Circuit Judges

. P ER C URIAM

. Ruben G

. Herrera appeals from a ju dgment of theUnited States Court of Appeals for Veterans Claims affirming the decision of the Board of Veterans’ Appeals

. For the below reasons, we affirm

- in

- part and dismiss

- in

- part Mr

. Herrera’s appeal.

B ACKGROUND
Mr

. Herrera is a n Army veteran who ser ved on active duty for a combined total of about 26 months in the period from 1973 to 1976

. Appx

. 27. 1 In 2002, Mr. Herrera applied for veterans’ benefits, claiming he had various disabilities that were connected to his Army service. Appx. 82

. In a November 2002 rating decision, the Department of Veterans Affairs Houston Regional Office (RO) denied Mr

. He rrera’s benefits claim s for head trauma, tinnitus, and head scarring after finding that these injuries were unrelated to Mr

. Herrera’s service

. Id. Mr

. Herrera appealed to the Board of Veterans’ Appeals, which issued a February 2005 decision that denied service connection for head injury and head scarring
, and remand ed Mr

. Herrera’s tinnitus claim for further consideration

. Appx . 2

. Mr

. Herrera did not appeal this decision
, and the decision became final

. Id. In August 2011, Mr

. Herrera filed another claim for benefits, this time claiming tinnitus and residuals of a left

side head injury (includ ing headaches), which the Department of Veterans Affairs (VA) expanded to include a claim for traumatic brain injury (TBI ). Appx . 2

. In an April 2013 rating decision , t he RO denied service connection for TBI and residuals of a left

- side head injury (including

1 Citations to “Appx.” refer to the appendix attached to the Appellee’s Brief. Case: 22-1051 Document: 20 Page: 2 Filed: 06/08/2022HERRERA v

. MCDONOUGH 3

headaches ) but granted service connection for (1) tinnitus
, assign ing an effective date of August 2011, and (2) bilateralhearing loss, for which it assigned a noncompensable rating

. Appx. 2–3. Mr. Herrera requested reconsideration of the August 2011 RO decision, but the RO denied Mr. Herrera’s request to reopen his claim for service connection for TBI and residuals of a he ad injury (including headaches) in May 2015 . Appx. 3. Mr. Herrera appealed to the Board of Veterans ’ Appeals, alleging the RO committed clear and unmistakable error (CUE) in the April 2013 and November 2002 rating decision s

. Id.
In May 2020 , the Board r eopened Mr. Herrera’s claim for service connection for head scarring
, having received new and material evidence sufficient to reopen that claim, but found on the merits that Mr. Herrera’s head scarring was not service connect ed . Appx. 25. The Board denie d Mr. Herrera’s request for an increased, compensable disability rating for bilateral hearing loss. Id. T he Board also den ied Mr

. Herrera’ s CUE motion to revis e the RO’s November 2002 rating decision

. Id. Mr

. Herrera appealed to the Court of Appeals for Veterans Claims (Veterans Court)

. T he Veterans Court affirme d. Appx . 4–7 , 16

. Mr

. Herrera appeal s. We have jurisdiction under 38 U.S.C

. § 7292.

D ISCUSSION We have limited jurisdiction to review decisions of the Veterans Court

. We may not review factual findings or theapplication of law to fact by the Board, except for constitutional claims

. 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 any interpretation thereof, and tointerpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” § 7292(c)

. Case: 22-1051 Document: 20 Page: 3 Filed: 06/08/2022HERRERA v

. MCDONOUGH 4

On appeal, Mr

. Herrera argues that the Veterans C ourt erred by (1) making de novo fact findings and sustaining the Board’s decision on grounds he claims were different than those relied on by the Board ; ( 2 ) failing to consid er new and material evidence regarding his disability claims ; (3 ) affirming the B oard’s denial of his claims that the RO committed clear and unmistakable error; and (4) determining it lacked jurisdiction to review certain issues Mr. Herrera had not previously raised before either the RO or the Board

. Appellant’s Br. 1–3

. We address each of Mr. Herrera’s arguments in turn

. Mr. Herrera first argues that the Veterans Court erred by sustaining the Board’s decision on grounds he purports to be different than those the Board relied on
, and by allegedly making de novo findings of fa ct

. Appellant’s Br . 1–2

. We note that the Veterans Court’s opinion makes clear that the court did not deny any of Mr. Herrera’s claims for reasons other than those invoked by the Board ; nor did it make any of its own findings of fact. See Appx. 4

– 7. F or example, t he Veterans Court explained that the Board denied service connection for left side head scarring “because it found that appellant did not have a current disability .” Appx. 6. The Veterans Court “affirm[ed] this part of the Board’s decision” because Mr. Herrera did not carry his burden of showing error in the Board’s decision

. Id. I n other words, the Veterans Court affirmed the Board’s decision based on the same reason as the Board

— that Mr. Herrera had no t sufficiently proven that he had a current disability (scarring on the left side of the head) during the appeal

. Id. Regarding the Board’s other findings, the Veterans Court similarly affirmed the Board’s decision based on the same grounds as the Board. See generally Appx. 4

– 7. We thus do not see that the Veterans Court erred. Next, we turn to Mr. Herrera ’s argument that he has submitted new and material evidence sufficient to reopen his claim for service connection for head scarring

. Appellant’s Br. 2. The Board may reopen a claim for benefits “[i]f Case: 22-1051 Document: 20 Page: 4 Filed: 06/08/2022HERRERA v

. MCDONOUGH 5

new and relevant evidence is presented.” 38 U.S.C. § 5108(a) ; see also 38 C.F.R 3.156(a) (“A claimant may reopen a finally adjudicated .

. . cl aim by submitting new and material evidence.”)

. Whether evidence presented by a veteran is “new and material” is a finding of fact. See Livingston v. Derwinski , 959 F.2d 224, 225

– 26 (Fed. Cir. 1992). The Board here found that Mr. Herrera had , in fact, submitted sufficient new and material evidence to reopen his claim for service connection for head scar rin g. Appx. 29

. Accordingly, the Veterans Court appropriately did not reverse this favorable determination

. Medrano v. Nicholson
, 21 Vet. App. 1 65, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable to a claimant.”) (citing 38 U.S.C. § 7261(a)(4) ). Notwithstanding Mr. Herrera’s presentation of new and material evidence, the Board found that Mr. Herrera had not shown he h ad a current disability at any time during the appeal and thus denied Mr. Herrera’s claim for service connection for head scarring on the merits. Appx. 6, 29

. The Veterans Court affirmed

. Appx. 6

. Mr. Herrera now appeals the Veterans Court’s affirmance of the Board’s denial of service connection based on the Board’s finding of the absence of a current disability

. The issue of whether a veteran has a current disability is a finding of fact

. See McLendon v. Nicholson , 20 Vet. App. 79, 82 (2007 )

. Becaus e we may not review “a challenge to a factual determination ,” we do not have jurisdiction to review this issue and accordingly dismiss this part of Mr. Herrera’s appeal

. 38 U.S.C. § 7292(d)(2)

.We turn next to Mr. Herrera’s argument that the Veterans Court erred by affirming the Board’s denial of his claim that the RO committed clear and unmistakable error in its November 2002 rating decision. Specifically, Mr. H errera argues that the c ourt “failed in its statutory mandate to account for prejudicial error” by not assessing whether there was prejudice to him resulting from any Case: 22-1051 Document: 20 Page: 5 Filed: 06/08/2022HERRERA v

. MCDONOUGH 6

Board error in concluding there was no CUE in the underlying decisio n . Appellant’s Br. 3.
As the Veterans Court explained, only final decisions may be challenged on grounds of clear and unmistakable error. Appx. 4. W hen the Board affirms an RO decision on appeal on the same factual basis as the RO , the Board’s decision precludes a veteran from challenging the ori ginal RO decision based on clear and unmistakable error. Id. (citing 38 C.F.R. § 20.1104)

. The Veterans Court found no clear error in the Board’s determination that because Mr. Herrera appeal ed the RO’s November 2002 decision
, that RO decision was no lon ger final . Appx. 5. The Veterans Court further affirmed th e Board’s finding that the Board’s February 2005 decision subsumed the November 2002 decision
, thereby precluding Mr. Herrera from challenging the November 2002 decision based on CUE

. Appx. 4– 5. On appeal, Mr. Herrera challenges the Veterans Court’s affirmance of the Board’s determination that the RO’s November 2002 rating decision was not final and was subsumed by the Board’s later decision. Whether a later decision subsumes an earlier decision is a question of fact. Morris v. West , 13 Vet. App. 94, 96 (1999) ; see also 38 U.S.C. § 7261(a)(4) . Mr. Herrera thus challenges the Board’s factual finding. We lack jurisdiction to review Mr. Herrera’s challenge to a factual finding and therefore dismiss this portion of his appeal. Lastly, Mr. Herrera argues that the Veterans Court erred in determining it lacked jurisdiction to review certain issues not previously raised to or decided by the RO or the Board

. Appellant’s Br. 1–3. Before t he Veterans Court
, Mr. Herrera raise d new arguments for the first time regarding service connection and disability rating for various claims, as well as challenging the Board’s February 2005 decision on groun ds of CUE . As the Veterans Court explained, however, the Board did not consider or adjudicate Case: 22-1051 Document: 20 Page: 6 Filed: 06/08/2022HERRERA v

. MCDONOUGH 7

these issues . Appx. 7. The Veterans Court cannot consider matters that were not decided by the Board. See Ledford

v. West , 136 F.3d 776, 779 (Fed. Cir. 1998) (the Veterans Court’s “jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed”). The refore, the Veterans Court properly determined it had no jurisdiction to consider these issues that were not raised before, nor decided by, the Board

. 2 We thus affirm the Veterans Court’s determination that it lacked jurisdiction over these claims.
We have considered Mr. Herrera’s remaining arguments and find them unpersuasive.
C ONCLUSION
For the above reasons , we af firm the Veterans Court’s determination that it lacks jurisdiction over certain issues. We dismiss the remainder of Mr. Herrera’s appeal for lack of jurisdiction.

AFFIRMED

- IN

- PART AND DISMISSED

- IN

- PART
C OSTS
No costs.

2 As the Veterans Court explained, while the Veterans Court lacked jurisdiction over Mr. Herrera’s challenge to the Board’s February 2005 decision based on CUE, Mr. Herrera may pursue his CUE challenge at the Board. See Appx. 5. Case: 22-1051 Document: 20 Page: 7 Filed: 06/08/2022