NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

CLIFFORD M. MOFFETT,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2022-1183

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-4438, Senior Judge Robert N. 

Davis.

______________________ 

Decided: September 7, 2022

______________________ 

J. BRYAN JONES, III, J B Jones III LLC, Lafayette, LA, 

for claimant-appellant.

 KYLE SHANE BECKRICH, Commercial Litigation Branch, 

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

BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA 

PREHEIM; CHRISTINA LYNN GREGG, Y. KEN LEE, Office of 

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2 MOFFETT v. MCDONOUGH

General Counsel, United States Department of Veterans 

Affairs, Washington, DC. 

______________________ 

Before PROST, TARANTO, and STOLL, Circuit Judges.

PER CURIAM. 

Clifford Moffett appeals from a judgment of the United 

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. 

BACKGROUND

Mr. Moffett served in the Air Force from March 1959 

through June 1960. On April 5, 1960, Mr. Moffett accidentally shot himself in the thigh. J.A. 24. Hospital records from that day indicate that Mr. Moffett incurred a 

“through and through” gunshot wound with “[n]o apparent 

artery, nerve, or bone involvement.” Id. An x-ray report 

from the following day states there was “no evidence [of] 

fracture or other abnormality of the femur. In one or two 

places one can suspect metallic fragments from [the] gunshot wound.” J.A. 22. 

About three weeks after the incident, Mr. Moffett was 

discharged from the hospital. His discharge paperwork 

stated that he was “considered unfit” for “long walking, 

running, jumping, climbing[,] or driving a vehicle” for a few 

weeks—until June 1, 1960, at which time those restrictions 

would end. J.A. 23. That day, Mr. Moffett had another 

medical examination. The report from this examination 

states that he had “[s]cars on [his] thigh due to [a] gunshot

wound,” but confirmed that he was qualified for general 

service. J.A. 29. Two weeks later, on June 14, 1960, 

Mr. Moffett received an honorable discharge from the Air 

Force. J.A. 27.

Shortly after being discharged, Mr. Moffett filed a 

claim for service connection for residuals of his gunshot 

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MOFFETT v. MCDONOUGH 3

wound. In the subsequent medical examination, the physician noted “no deformity, no interference with normal 

mobility of [the] leg, knee, or ankle, nondisfiguring, with 

doubtful interference of sensation in lower leg.” J.A. 25. In 

December 1960, the VA Regional Office (RO) granted service connection for Mr. Moffett’s claim. J.A. 19. The RO 

determined the injury was “moderate” and assigned

Mr. Moffett a 10 percent disability rating. Id. Mr. Moffett 

did not appeal that decision, and it became final. 

In May 2010, fifty years after the RO’s December 1960 

decision, Mr. Moffett sought revision of that decision on the 

basis of clear and unmistakable error (CUE). Over the next 

few years, Mr. Moffett raised a few different CUE claims 

which moved between the RO and the Board. In the case 

now on appeal, Mr. Moffett alleged two grounds of 

CUE: (1) that his injury should have been considered moderately severe, rather than moderate, because he was “‘declared unfit for duty’ and ‘was medically discharged from 

service’” because of the injury; and (2) that his injury 

should have been considered severe, rather than moderate, 

because “April 1960 x-rays showed the presence of suspected [metallic] fragments.” J.A. 2 (alteration in original) 

(quoting J.A. 9). 

On April 28, 2020, the Board issued its decision finding 

that Mr. Moffett had not demonstrated CUE in the RO’s 

decision. Specifically, the Board found that Mr. Moffett

“ha[d] not alleged an error of fact or law in the December 20, 1960, rating decision that compels the conclusion, 

to which reasonable minds could not differ, that the results 

would have been manifestly different but for the error.” 

J.A. 8. The Board explained that Mr. Moffett’s arguments 

were “essentially a disagreement as to how the facts were 

weighed or evaluated by the adjudicator” and that whether 

his “service-connected residuals of a gunshot wound to the 

right thigh should have been considered more than moderate in severity is debatable.” J.A. 15.

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4 MOFFETT v. MCDONOUGH

Mr. Moffett appealed to the Veterans Court. Before 

that court, Mr. Moffett reasserted the same two CUE 

grounds that he had presented to the Board—that his injury was more severe than the rating he had been assigned 

because he was discharged because of his injury and because x-rays taken in 1960 showed suspected metallic fragments. But Mr. Moffett also raised a new CUE theory: his 

injury was “consistent with a moderately severe disability” 

as evidenced by the fact that he spent three weeks in the 

hospital recovering from his gunshot wound. J.A. 4 (quotation omitted). 

Regarding this new, third CUE theory, the Veterans 

Court explained that “[i]f the ‘appellant raises a new theory 

of CUE for the first time before the [Veterans] Court, the 

[Veterans] Court must dismiss for lack of jurisdiction.’” 

J.A. 4–5 (quoting Acciola v. Peake, 22 Vet. App. 320, 325 

(2008)). Because Mr. Moffett had not previously raised this 

ground for CUE, the Veterans Court dismissed that ground 

because it did not have jurisdiction to consider it. J.A. 4–5 

(quoting Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 

2002)). 

The Veterans Court then turned to Mr. Moffett’s other 

two CUE grounds. The court stated that, “as the Board 

found and Mr. Moffett d[id] not challenge[,] the evidence 

here is not ‘undisputed.’” J.A. 6. This was enough to preclude a finding of CUE, the court explained, because CUE 

requires that “the alleged error must be ‘undebatable,’ not 

merely a ‘disagreement as to how the facts were weighed 

or evaluated.’” J.A. 6 n.34 (quoting Russell v. Principi, 

3 Vet. App. 310, 313–14 (1992)). Because the facts in 

Mr. Moffett’s case were disputed, the court held that 

Mr. Moffett could not demonstrate CUE. The court thus 

affirmed the Board’s decision as to Mr. Moffett’s two CUE 

grounds over which the court had jurisdiction. Mr. Moffett 

appeals. 

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MOFFETT v. MCDONOUGH 5

DISCUSSION

This court’s jurisdiction to review decisions by the Veterans Court is limited. Except for constitutional issues, we 

may not review any “challenge to a factual determination” 

or any “challenge to a law or regulation as applied to the 

facts of a particular case.” 38 U.S.C. § 7292(d)(2). Our review is limited to legal challenges regarding the “validity 

of any statute or regulation or any interpretation thereof

. . ., and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 

§ 7292(c). We must affirm a Veterans Court decision unless it is “(A) arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law; (B) contrary to 

constitutional right, power, privilege, or immunity; (C) in 

excess of statutory jurisdiction, authority, or limitations, or 

in violation of a statutory right; or (D) without observance 

of procedure required by law.” 38 U.S.C. § 7292(d)(1). 

On appeal, Mr. Moffett again argues the same three 

grounds of CUE he presented to the Veterans Court: 

(1) that he was hospitalized for three weeks, indicating “extensive hospitalization” consistent with a moderately severe disability rating; (2) that he was discharged from 

service because of his injury, warranting a moderately severe disability rating; and (3) that records show the presence of metallic fragments as a result of his injury, 

warranting a severe disability rating. Appellant’s Br. 4–5. 

In his Statement of the Issues section of his brief, Mr. Moffett frames a single issue, stating that “[t]he issue in this 

case is whether the examples” listed in the 1960 version of 

the schedule of disability ratings for muscle injuries “are 

deemed to be indicative of the degree of disability that 

should be assigned for gunshot wounds.” Id. at 1. 

We start with Mr. Moffett’s argument that because he 

was hospitalized for three weeks following his injury, the 

VA should have assigned a moderately severe disability 

rating for his injury. For the Veterans Court to have 

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6 MOFFETT v. MCDONOUGH

jurisdiction over a CUE claim, the veteran must present 

that claim to the RO, appeal an adverse RO decision to the 

Board, and appeal an adverse Board decision to the Veterans Court. Andre, 301 F.3d at 1361 (“[E]ach ‘specific’ assertion of CUE constitutes a claim that must be the subject 

of a decision by the [Board] before the Veterans Court can 

exercise jurisdiction over it.”). In this case, as the Veterans 

Court explained, “the Board did not adjudicate this CUE 

theory, and the record does not reflect that Mr. Moffett 

raised th[is] theory to the Board.” J.A. 5. We have deemed 

determinations about the scope of the CUE claim presented 

to be factual ones outside our jurisdiction. See Garcia v. 

Wilkie, 908 F.3d 728, 737 (Fed. Cir. 2018); Kernea v. 

Shinseki, 724 F.3d 1374, 1382 (Fed. Cir. 2013); Comer v. 

Peake, 552 F.3d 1362, 1372 (Fed. Cir. 2009). To the extent 

that Mr. Moffett is asserting that there is a legal error in 

the Veterans Court’s determination that the hospitalization theory was a new, separate CUE claim that therefore 

had to be dismissed, he has supplied no argument showing

a legal error, and we do not discern one. See Acciola, 22 

Vet. App. at 325; Andre, 301 F.3d at 1363. We therefore 

affirm the Veterans Court’s dismissal of this CUE claim. 

We turn next to Mr. Moffett’s remaining assertions of

CUE. For his second CUE claim, Mr. Moffett argues he 

was discharged from service because of his injury, which he 

argues shows it was undebatable that his injury was more 

than his assigned rating of moderate. Appellant’s Br. 7. 

For his third CUE claim, Mr. Moffett argues that x-rays 

showed the presence of metallic fragments from his injury, 

which he similarly argues shows that his injury was more 

than moderate. Id. at 8.

We lack appellate jurisdiction to consider these two 

CUE claims. The Board and the Veterans Court thoroughly considered both of these claims and found that 

Mr. Moffett had not shown an undebatable error—a requirement for him to demonstrate CUE. See Russell, 3 Vet. 

App. at 313–14 (to successfully demonstrate CUE, the 

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MOFFETT v. MCDONOUGH 7

alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”). 

The Veterans Court’s conclusion is based on an application 

of the law regarding CUE to the facts of Mr. Moffett’s case. 

As such, it is beyond our jurisdiction. § 7292(d)(2) (we cannot review “a challenge to a law or regulation as applied to 

the facts of a particular case”); see also Conway v. Principi, 

353 F.3d 1369, 1372–73 (Fed. Cir. 2004). We therefore dismiss Mr. Moffett’s appeal regarding his second and third

CUE claims.

Finally, we address Mr. Moffett’s “Statement of the Issue[]” as whether the examples listed in the applicable disability rating schedule “are deemed to be indicative of the 

degree of disability that should be assigned for gunshot 

wounds.” Appellant’s Br. 1. Mr. Moffett’s brief in this 

court and in the Veterans Court, and the Veterans Court’s 

decision, make clear that Mr. Moffett is not challenging the 

applicable rating schedule, but invoking it. And his “issue” 

simply presents the contention that a higher rating was legally required under that schedule given the facts he alleges are indisputable—regarding the basis for discharge 

from the service, the presence of metallic fragments, and 

the length of hospitalization. But the Veterans Court did 

not address, or need to address, that contention, because it 

rejected all three of the asserted premises of the contention 

in the present CUE adjudication—a rejection that we leave 

undisturbed. In these circumstances, Mr. Moffett does not 

and cannot explain how adoption of his legal contention 

would alter the Veterans Court’s decision in his case. The 

Veterans Court’s decision does not rest on either an express 

or implicit rejection of the legal contention Mr. Moffett advances, and so the contention is outside our jurisdiction. 

See Forshey v. Principi, 284 F.3d 1335, 1351 (Fed. Cir. 

2002). 

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8 MOFFETT v. MCDONOUGH

CONCLUSION

Accordingly, we affirm-in-part and dismiss-in-part the 

judgment of the Veterans Court. 

AFFIRMED-IN-PART AND DISMISSED-IN-PART

COSTS

No costs.

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