N OTE : This disposition is nonprecedential.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

______________________
F REDERICK P AYNE , Bellevue, NE, pro se.

R AFIQUE O MAR A NDERSON , Commercial LitigationBranch, Civil Division, United States Department of Justice, Washington, DC, for respon dent

- appellee. Also represented by E THAN P. D AVIS , A LLISON K IDD

- M ILLER , R OBERT E DWARD K IRSCHMAN , J R

. ; B RIAN D. G RIFFIN , A NDREW J. Case: 20-1459 Document: 31 Page: 1 Filed: 08/20/2020PAYNE v. WILKIE 2

S TEINBERG , Office of General Counsel, United States Department of Veterans Affairs , Washington, DC

.

______________________
Before P ROST , Chief Judge

, R EYNA and T ARANTO , Circuit Judges

. P ER C URI A M

. Pro se Appellant Frederick Payne, a United States Air Force veteran, appeals the decision of the United States Court of Appeals for Vete rans Claim s that affirm ed 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

. T he 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
statuto rily 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.

B ACKGROUND
A. Disability Compensation Claims

Mr. Payne served on active duty in the U.S. Air Forcefrom 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 lead ing to an increase of the initial disability ratin gs for Mr. Payne’s right and left CTS to 50% and 40%, respectively, both effective July 14, 1992

, and a service

Case: 20-1459 Document: 31 Page: 2 Filed: 08/20/2020PAYNE v. WILKIE 3

connection award for hand

- arm vibration syndrome (“HAVS”). J.A. 90

– 99, 10 0

– 08. T he procedural history of Mr. Payne’s appeal s span s over 27 yea rs. 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 extra

schedular 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

. T he Board determined it lac ked 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 dec ision

. Importan t tothis 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 determinati on 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. T he 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.

A NALYSIS 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 challenge s to the validity of any statute or regulation

, or to any i nterpretation of statutory, Case: 20-1459 Document: 31 Page: 3 Filed: 08/20/2020PAYNE v. WILKIE 4

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 challenge s to factual determination s , or challenge s to the a pplication 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) . R emand 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 separat e 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 ofthe 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, 136 4 (Fed. Cir. 2002) )

. A. Challenges to the Veterans Court ’s Decision
First, Mr. Payne challenge s the Board’s determinationthat Mr. Payne was not entitled to a higher initial disability rating

. T he Veterans Court correctly characterized Mr. Payne ’ s challenge as going to the sufficiency of a medical opinion , which is a fin ding 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 o f fact

. ”)

. Case: 20-1459 Document: 31 Page: 4 Filed: 08/20/2020PAYNE v. WILKIE 5

Similarly, Mr. Payne argues that the Veterans Court erred when it determin ed that Mr. Payne failed to demonstrate that error s by the Board w ere prejudicial. Determination of prejudice constitute s case

- specific applications of judgment, based on the examination of the record. See Shinseki v. Sander s , 556 U.S. 39 6 , 407

– 10 (2009). Because this determination involve s the application of law to fact

, we lack jurisdiction to review these conclusions

. M r. Payne also challenges the Veterans Court ’s reversal and remand of portions of the Board’s decision on grounds that those matters a re still p ending before the Board. T his court has he ld that its jurisdiction generally does not extend to determinations t hat 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 Willia ms , 275 F.3d at 1363 (Fed. Cir. 2002) )

. While th is 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. B ecause w e find no reason to depart from the rule of finality in this case , we dismi ss Mr. Payne’s challenge to issues that re main 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, 1 362

– 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 evaluatin g the same disability under various diagnosis, is either unlawful or was inappropriately applied to his case to deny separate ratings for Case: 20-1459 Document: 31 Page: 5 Filed: 08/20/2020PAYNE v. WILKIE 6

HAVS and CTS

. App. Inf. Br. at 5

– 6, 10

– 12 . He also argues that his constitutional due process rights were violated b ecause 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 th e 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 compensat ed for functional loss but that separate diagnos es constitute the same disability if they have overlapping symptom at ology. Id. at 1380

– 81. To the extent Mr. Payne argues that the statute was applied improperly to the fact s 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. B r. 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 92 2, 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 Case: 20-1459 Document: 31 Page: 6 Filed: 08/20/2020PAYNE v. WILKIE 7

the evidence of record.”). Accordingly, t his 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 outlinedabove, we dismiss those arguments as outside our jurisdiction.

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

wa i v ed 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, w e dismiss the appeal.

DISMISSED

C OSTS

No c osts. Case: 20-1459 Document: 31 Page: 7 Filed: 08/20/2020