NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

BYRON R. FISHER,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2023-1119

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 21-7609, Judge Joseph L. Falvey 

Jr.

______________________ 

Decided: April 5, 2023

______________________ 

BYRON FISHER, Peekskill, NY, pro se. 

 PATRICK ANGULO, Commercial Litigation Branch, Civil 

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

BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.

MCCARTHY; AMANDA BLACKMON, BRIAN D. GRIFFIN, Office 

of General Counsel, United States Department of Veterans 

Affairs, Washington, DC. 

Case: 23-1119 Document: 17 Page: 1 Filed: 04/05/2023
2 FISHER v. MCDONOUGH

 ______________________ 

Before LOURIE, TARANTO, and STARK, Circuit Judges.

PER CURIAM. 

Byron R. Fisher, a veteran of the U.S. Army, appeals a 

decision of the United States Court of Appeals for Veterans 

Claims (“Veterans Court”). The Veterans Court dismissed 

Fisher’s appeal of a decision of the Board of Veterans’ Appeals (“Board”) that denied Fisher earlier effective dates 

for his disabilities. Because Fisher’s arguments are beyond 

the limited jurisdiction of our court, we dismiss the appeal. 

I 

Fisher served in the U.S. Army from July 1999 to February 2002 and from June 2006 to October 2010. In 2010, 

Fisher filed a pre-discharge benefits claim seeking service 

connection for, among other things, a skin condition, a left 

ankle condition, and a swollen left foot. In a decision dated 

November 23, 2010 (“2010 Decision”), a Department of Veterans Affairs (“VA”) regional office (“RO”) denied service 

connection for the skin condition and the left ankle condition and granted service connection for left foot pes planus 

with a 0 percent rating, effective October 20, 2010.1 Fisher

did not appeal this decision and it became final.

On March 3, 2021, Fisher filed a disability claim for venous insufficiency, a left ankle condition, a left foot condition, and eczema in both hands. Later that month, on 

March 23, 2021, Fisher filed a supplemental claim seeking 

benefits for edema in his left foot and ankle, eczema, and 

pes planus. In April 2021, the RO increased the disability 

rating for Fisher’s pes planus to 20 percent, effective March 

3, 2021, and granted service connection for venous 

1 A medical examiner diagnosed Fisher’s swollen left 

foot as pes planus. 

Case: 23-1119 Document: 17 Page: 2 Filed: 04/05/2023
FISHER v. MCDONOUGH 3

insufficiency (claimed as edema in the left foot and ankle), 

assigning a 10 percent disability rating effective March 23, 

2021. Shortly after, in May 2021, the RO granted service 

connection for dermatitis (claimed as eczema) with a 60% 

disability rating effective March 23, 2021. Fisher filed a 

notice of disagreement with the rating decisions of April 

2021 and May 2021, seeking earlier effective dates for his 

left foot pes planus, venous insufficiency, and skin condition.

In October 2021, the Board issued two decisions. The

Board found that Fisher first claimed his dermatitis (also 

claimed as a skin condition and eczema) and venous insufficiency (also claimed as edema in the left foot and ankle)2

on March 3, 2021, so this was the earliest proper effective 

date for those disabilities. The Board observed that, while 

Fisher had also claimed these disabilities before leaving active duty in October 2010, the RO had denied service connection for those conditions in the 2010 Decision, which 

became final when Fisher did not appeal it. Therefore, 

Fisher’s 2010 claim could not serve as a basis for an earlier 

effective date. As for the left foot pes planus, the Board 

found Fisher failed to allege that the 2010 Decision contained a clear and unmistakable error (“CUE”), as would 

be required to obtain revision or reversal of a final decision. 

Accordingly, the Board dismissed this portion of the appeal.

Fisher appealed the Board’s decisions to the Veterans 

Court. In August 2022, the Veterans Court agreed with the 

Board that “the only way for Fisher to seek earlier dates 

for his disabilities based on his 2010 claim would be to allege that the final November 2010 decision contained 

2 The Board also construed Fisher’s March 3, 2021 

claim for a left ankle condition as a claim for venous insufficiency.

Case: 23-1119 Document: 17 Page: 3 Filed: 04/05/2023
4 FISHER v. MCDONOUGH

CUE.” S.A. 4.3 Fisher, however, failed to raise the CUE

issue before the Board, and he could not raise it for the first 

time at the Veterans Court. Thus, the Veterans Court dismissed Fisher’s appeal.

II

We have exclusive, but limited, jurisdiction to review decisions of the Veterans Court. See 38 U.S.C.

§ 7292(c); Sullivan v. McDonald, 815 F.3d 786, 788-89

(Fed. Cir. 2016). “We may review legal questions, including the validity of any statute or regulation or any interpretation thereof.” Sullivan, 815 F.3d at 788-89. Such 

legal determinations are reviewed de novo. See Cushman

v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009). We may 

not, however, review (1) “a challenge to a factual determination” or (2) “a challenge to a law or regulation as applied 

to the facts of a particular case,” unless the challenge presents a constitutional issue. 38 U.S.C. § 7292(d)(2). 

Fisher’s appeal does not present any issue within the 

scope of our jurisdiction. Fisher first challenges the 2010 

Decision’s finding that he did not have chronic swelling in 

his left foot and ankle. See Appellant’s Br. at 1. This argument presents an issue of fact which we lack jurisdiction 

to review. In the 2010 Decision, the RO explicitly discussed 

the medical records from September 2009 and March 2008 

documenting the swelling of Fisher’s left foot and ankle, see 

S.A. 51, 53, and we lack jurisdiction to review the weight 

given to them, see Goodman v. Shulkin, 870 F.3d 1383, 

1386 (Fed. Cir. 2017).

Second, Fisher argues his 2010 medical examination 

involved CUE because the RO “stat[ed] that [Fisher’s] skin 

was healthy based solely on a summer examination, despite acknowledging that the Appellant’s eczema started 

3 “S.A.” refers to the Supplemental Appendix filed 

with the Secretary’s brief. 

Case: 23-1119 Document: 17 Page: 4 Filed: 04/05/2023
FISHER v. MCDONOUGH 5

during the winter.” Appellant’s Br. at 2. This contention, 

too, presents an issue of fact which we lack jurisdiction to 

review. See Prinkey v. Shinseki, 735 F.3d 1375, 1382-83

(Fed. Cir. 2013).

Finally, Fisher argues that VA violated 18 U.S.C. 

§§ 1001 and 1519 because a medical examiner allegedly 

submitted false documents to the VA. See Appellant’s Br. 

at 1; Reply Br. at 1. Fisher identifies no express or implied 

reliance by the Veterans Court on a misinterpretation of 

these provisions in its decision. Further, Fisher did not adequately present this argument to the Veterans Court. See 

Carbino v. West, 168 F.3d 32, 35 (Fed. Cir. 1999) (“[T]he 

Court of Veterans Appeals properly declined to consider . . 

. untimely contentions” “raised for the first time in a reply 

brief.”). It is, therefore, forfeited. See Emenaker v. Peake, 

551 F.3d 1332, 1337 (Fed. Cir. 2008) (“[W]ith limited exceptions, appellate courts do not consider issues that were 

not raised in the tribunal from which the appeal is taken, 

and we have held that those general principles of appellate 

practice apply in the context of appeals from the Veterans 

Court.”). 

III

We have considered Fisher’s remaining arguments and 

find them unpersuasive. For the reasons given, we dismiss 

Fisher’s appeal for lack of jurisdiction. 

DISMISSED

COSTS

No costs.

Case: 23-1119 Document: 17 Page: 5 Filed: 04/05/2023