NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

FREDERICK PAYNE,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2020-1459

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 17-3439, Chief Judge Margaret C. 

Bartley, Judge Amanda L. Meredith, Senior Judge Robert 

N. Davis.

______________________

Decided: August 20, 2020

______________________

FREDERICK PAYNE, Bellevue, NE, pro se. 

 RAFIQUE OMAR ANDERSON, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by ETHAN P. DAVIS, ALLISON KIDD-MILLER, ROBERT 

EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, ANDREW J.

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2 PAYNE v. WILKIE

STEINBERG, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

 ______________________

Before PROST, Chief Judge, REYNA and TARANTO, Circuit 

Judges.

PER CURIAM.

Pro se Appellant Frederick Payne, a United States Air 

Force veteran, appeals the decision of the United States 

Court of Appeals for Veterans Claims that affirmed a determination by the Board of Veterans’ Appeals denying an 

increase in his disability rating for his service-connected 

disabilities. Mr. Payne also raises new issues on appeal. 

The resolution of the issues raised by Mr. Payne would require this court to reweigh the factual findings of the 

Board, to engage in new factual findings, and review the 

application of law to facts. While this court has jurisdiction 

to review certain constitutional and legal issues, we are 

statutorily prohibited from reviewing factual determinations and the application of law to facts. 38 U.S.C. 

§ 7292(d)(2). Therefore, we lack jurisdiction over Mr. 

Payne’s challenges and dismiss this appeal. 

BACKGROUND

A. Disability Compensation Claims

Mr. Payne served on active duty in the U.S. Air Force 

from February 1980 to July 1992 as a communications systems maintenance technician. J.A. 204. On July 13, 1992, 

he was honorably discharged for “permanent disability retirement.” Id. In April 1993, a VA Regional Office (“RO”) 

granted Mr. Payne’s claim for service-connected carpal 

tunnel syndrome (“CTS”) of each hand. J.A. 24–32. Over 

the years, Mr. Payne filed several claims and appeals, ultimately leading to an increase of the initial disability ratings for Mr. Payne’s right and left CTS to 50% and 40%, 

respectively, both effective July 14, 1992, and a serviceCase: 20-1459 Document: 31 Page: 2 Filed: 08/20/2020
PAYNE v. WILKIE 3

connection award for hand-arm vibration syndrome 

(“HAVS”). J.A. 90–99, 100–08. The procedural history of 

Mr. Payne’s appeals spans over 27 years. We review only 

the procedural history most relevant to this appeal. 

B. Board Decision and Veterans Court Decision

On September 26, 2017, the Board of Veterans’ Appeals 

(“Board”) denied a higher rating for Mr. Payne’s right and 

left hand HAVS and CTS on both schedular and extraschedular bases. J.A. 165–203. Mr. Payne’s disabilities 

were rated as a unit under diagnostic code 8515, based on 

the Board’s factual finding that the symptoms of the two 

conditions overlapped. The Board determined it lacked jurisdiction over the remaining issues in the case. Mr. Payne 

appealed the Board decision to the U.S. Court of Appeals 

for Veterans Claims (“Veterans Court”).

The Veterans Court affirmed in part, reversed in part, 

and dismissed in part the Board’s decision. Important to 

this appeal, the Veterans Court affirmed the Board’s determination that Mr. Payne was not entitled to an increase of 

his disability rating for HAVS and CTS. In addition, the 

Veterans Court reversed and remanded the Board’s determination that it lacked jurisdiction over the issues of entitlement to special monthly compensation and a total 

disability rating based on individual unemployability 

(“TDIU”) prior to March 4, 2005. The Veterans Court dismissed, as abandoned, Mr. Payne’s appeal as to his entitlement to TDIU after August 31, 2011 and to disability 

compensation for a secondary condition of his service-connected disabilities. Mr. Payne now appeals to this court.

ANALYSIS

Our jurisdiction to review decisions by the Veterans 

Court is limited. See Wanless v. Shinseki, 618 F.3d 1333, 

1336 (Fed. Cir. 2010). We have exclusive jurisdiction to review and decide challenges to the validity of any statute or 

regulation, or to any interpretation of statutory, 

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4 PAYNE v. WILKIE

regulatory, or constitutional provisions to the extent such 

provisions are presented and necessary to a decision. 38 

U.S.C. § 7292(c). We lack jurisdiction to review challenges

to factual determinations, or challenges to the application 

of law or regulation to the facts of a particular case, except 

to the extent that an appeal from a Veterans Court decision 

presents a constitutional issue. Id.; § 7292(d)(2). And 

while we liberally construe pro se pleadings, like those 

here, in favor of a pro se veteran, the veteran is still required to establish jurisdiction. See Reynolds v. Army & 

Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

In addition, the issue on appeal must have been finally 

decided by the Veterans Court. See Arnesen v. Principi, 

300 F.3d 1353, 1357 (Fed. Cir. 2002). Remand decisions by 

the Veterans Court are not final for review purposes absent 

three circumstances: “(1) there must have been a clear and 

final decision of a legal issue that (a) is separate from the 

remand proceedings, (b) will directly govern the remand 

proceedings or, (c) if reversed by this court, would render 

the remand proceedings unnecessary; (2) the resolution of 

the legal issues must adversely affect the party seeking review; and (3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand 

proceeding may moot the issue.” Id. (quoting Williams v. 

Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002)).

A. Challenges to the Veterans Court’s Decision

First, Mr. Payne challenges the Board’s determination 

that Mr. Payne was not entitled to a higher initial disability rating. The Veterans Court correctly characterized Mr. 

Payne’s challenge as going to the sufficiency of a medical 

opinion, which is a finding of fact, over which we lack jurisdiction to review. J.A. 17. See Prinkey v. Shinseki, 735 

F.3d 1375, 1383 (Fed. Cir. 2013) (“[T]he sufficiency of a 

medical opinion is a matter beyond our jurisdictional 

reach, because the underlying question is one of fact.”).

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PAYNE v. WILKIE 5

Similarly, Mr. Payne argues that the Veterans Court 

erred when it determined that Mr. Payne failed to demonstrate that errors by the Board were prejudicial. Determination of prejudice constitutes case-specific applications of 

judgment, based on the examination of the record. See 

Shinseki v. Sanders, 556 U.S. 396, 407–10 (2009). Because 

this determination involves the application of law to fact, 

we lack jurisdiction to review these conclusions.

Mr. Payne also challenges the Veterans Court’s reversal and remand of portions of the Board’s decision on 

grounds that those matters are still pending before the 

Board. This court has held that its jurisdiction generally 

does not extend to determinations that are still pending before the Veterans Court or the Board because they lack finality. See Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 

2006) (citing Williams, 275 F.3d at 1363 (Fed. Cir. 2002)). 

While this court in Williams set out a narrow exception to 

that rule, as set forth above, we do not find that such an 

exception applies here. See Williams, 275 F.3d at 1364. 

Because we find no reason to depart from the rule of finality in this case, we dismiss Mr. Payne’s challenge to issues 

that remain pending before the Board. See id. at 1363.

Finally, we also lack jurisdiction to review the Veterans Court’s ruling that Mr. Payne abandoned the remaining issues for failure to raise them in his opening brief. See 

Andre v. Principi, 301 F.3d 1354, 1362–64 (Fed. Cir. 2002) 

(holding that the Federal Circuit lacks jurisdiction over the

Veterans Court’s ruling that an issue is abandoned). 

B. New Issues Raised on Appeal

As we understand his informal brief, Mr. Payne raises 

several arguments that were not before the Veterans 

Court. For example, Mr. Payne argues that the United 

States Department of Veterans Affairs’ (“VA”) regulatory 

prohibition on pyramiding, or evaluating the same disability under various diagnosis, is either unlawful or was inappropriately applied to his case to deny separate ratings for 

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6 PAYNE v. WILKIE

HAVS and CTS. App. Inf. Br. at 5–6, 10–12. He also argues that his constitutional due process rights were violated because his service medical records were excluded 

from consideration by the VA in rating his hand and arm 

condition, id. at 3, 16–25, and that the administrative record is “missing key medical evidence.” Id. at 8–9. 

In general, arguments not raised to the Veterans Court 

are waived. See Forshey v. Principi, 284 F.3d 1335, 1355 

(Fed. Cir. 2002) (en banc), superseded on other grounds by 

statute, Veterans Benefits Act of 2002, Pub. L. No. 107-330,

§ 402(a), 116 Stat. 2820, 2832). Even if these arguments 

were not waived, they either are plainly meritless or challenge determinations that we lack jurisdiction to review. 

With respect to Mr. Payne’s argument that pyramiding 

is unlawful, this court addressed the question in Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). The court 

concluded that 38 C.F.R. § 4.14 intends that veterans are

compensated for functional loss but that separate diagnoses constitute the same disability if they have overlapping 

symptomatology. Id. at 1380–81. To the extent Mr. Payne 

argues that the statute was applied improperly to the facts

of his case, or that the Board erred in finding that his symptoms overlapped, this court does not have jurisdiction to 

review this issue. See 38 U.S.C. § 7292(d)(2).

Next, Mr. Payne raises a “constitutional due process”

challenge alleging that the Board “excluded” his service 

medical records from consideration or that the Board is 

missing “key” evidence. App. Inf. Br. at 8–9, 18. However, 

while Mr. Payne frames his argument as a constitutional 

challenge, he is in fact challenging the Board’s weighing of 

evidence in the record. The completeness of the record presents a question of fact outside of this court’s jurisdiction. 

See Jones v. Wilkie, 918 F.3d 922, 927 (Fed. Cir. 2019); see

also Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 

2007) (“There is a presumption that VA considered all of 

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PAYNE v. WILKIE 7

the evidence of record.”). Accordingly, this court has no jurisdiction to reweigh the evidence before the Board. 

Mr. Payne’s remaining new arguments involve factual 

findings or application of law to facts. For reasons outlined 

above, we dismiss those arguments as outside our jurisdiction. 

CONCLUSION

Each of Mr. Payne’s arguments on appeal are either 

waived or directed to factual determinations or applications of law to fact that this court lack jurisdiction to review. Pursuant to 38 U.S.C. § 7292(d)(2), we may not 

consider these challenges. Accordingly, we dismiss the appeal. 

DISMISSED

COSTS

No costs.

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