NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

RICHARD C. MLEKODAY,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2013-7004

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 11-353, Judge Robert N. Davis.

______________________ 

Decided: November 7, 2013

______________________ 

KENNETH M. CARPENTER, Carpenter, Chartered, of 

Topeka, Kansas, for claimant-appellant. 

DOMENIQUE KIRCHNER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were STUART F.

DELERY, Principal Deputy Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,

JR., Assistant Director. Of counsel on the brief were 

DAVID J. BARRANS, Deputy Assistant General Counsel, 
2 MLEKODAY v. SHINSEKI

and RACHEL T. BRANT, Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel 

was L. Misha Preheim, Trial Attorney, Commercial 

Litigation Branch, United States Department of Justice, 

of Washington, DC. 

______________________ 

Before LOURIE, DYK, and O’MALLEY, Circuit Judges.

PER CURIAM. 

Richard C. Mlekoday (“Mlekoday”) appeals from the 

final decision of the United States Court of Appeals for 

Veterans Claims (“Veterans Court”) holding that the 

Board of Veterans’ Appeals (“Board”) did not err when it 

found no clear and unmistakable error (“CUE”) in a 

December 5, 1977 rating decision that terminated 

Mlekoday’s total disability rating based on individual 

unemployability (“TDIU”). See Mlekoday v. Shinseki, No. 

11–353, 2012 WL 3003430 (Vet. App. July 24, 2012) 

(unpublished). Mlekoday argues on appeal that the 

Veterans Court misinterpreted various statutes and 

regulations in affirming the Board’s decision. Because we 

do not have jurisdiction to hear that portion of Mlekoday’s 

appeal, we dismiss-in-part. Mlekoday also asserts that 

the Veterans Court erred by not considering an argument 

he failed to raise before the Board. On that point, we 

affirm-in-part. 

BACKGROUND

Mlekoday served in the U.S. Marine Corps from July

19, 1965, to August 31, 1968. While on active duty in 

Vietnam, he sustained multiple gunshot wounds and 

suffered injuries to his chest and left arm. In January 

1969, the Department of Veterans Affairs (“VA”) regional 

office (“RO”) in St. Paul, Minnesota, granted Mlekoday 

service connection (80% rating) for a series of conditions

and also found that he was unemployable because of his 

injuries. As a result, the RO found that he was entitled to 
MLEKODAY v. SHINSEKI 3

a TDIU effective on December 1, 1968, the day of his 

discharge from service. 

In September 1977, Mlekoday submitted to the VA a 

Form 21–4209 employment questionnaire that indicated 

that he had worked for the U.S. Postal Service from June 

to September 1977. Based on Mlekoday’s questionnaire, 

the RO issued a notice, dated October 3, 1977, stating 

that, because he indicated that he had obtained full-time 

employment, he was required to appear for an immediate 

VA medical examination to determine his continued 

eligibility for benefits. The RO decision also informed 

Mlekoday that his 80% rating plus TDIU, which gave him 

an effective 100% rating, would be reduced to only an 80% 

rating unless he submitted evidence demonstrating that 

any reduction would be in error. The decision also noted 

that the best evidence that Mlekoday could submit was an 

examination from a treating physician who had recently 

examined him. The RO gave Mlekoday 60 days to provide 

the requisite evidence. 

On October 12, 1977, Mlekoday sent a letter to the VA 

disagreeing with the RO’s statement regarding his disability. Mlekoday noted that he was not able to obtain 

gainful employment and that his position with the U.S. 

Postal Service had been temporary; he claimed that he 

had only worked 60 days and that his earnings were 

around $2,000 in total. On November 30, 1977, 

Mlekoday’s accredited representative sent a letter to the 

RO stating that Mlekoday had not reported for his scheduled examination and did not want any further contact 

with the VA. The representative also noted that 

Mlekoday did not wish to continue his effective 100% 

disability rating if he had to continue being harassed with

filing out VA forms.

On December 5, 1977, the RO issued its rating decision and found that the record evidence did not demonstrate that Mlekoday’s disabilities prevented all forms of 
4 MLEKODAY v. SHINSEKI

gainful employment. As such, the RO terminated 

Mlekoday’s TDIU rating effective January 1, 1978. After 

Mlekoday filed a notice of disagreement with that RO 

decision, the RO noted the earlier finding, and requested 

that Mlekoday undergo an examination. The RO noted

that it would review Mlekoday’s claim again once it could 

review the results of a new examination.

Mlekoday underwent a VA medical examination on 

March 30, 1978. In April 1978, the RO issued a supplemental statement of the case and noted that the results of 

the March 1978 examination supported the denial of 

Mlekoday’s TDIU. The RO concluded that, because his 

disabilities did not appear so severe as to preclude all 

types of gainful employment, he was not entitled to TDIU. 

Mlekoday did not appeal the RO’s decision to the Board.

On December 2, 2005, Mlekoday filed a motion to revise the December 1977 RO rating decision on the 

grounds of CUE. Among other things, he challenged the 

RO decision that terminated his TDIU benefits. The 

Board determined that the RO decision did not suffer 

from CUE. The Board determined that the discontinuance of Mlekoday’s TDIU was not clearly and unmistakably erroneous because the evidence demonstrated that his 

failure to report for the VA examination in 1977, and his 

refusal to complete the necessary paperwork, the RO 

properly discontinued his TDIU. The Board also held that 

Melkoday’s objections to the December 1977 decision 

required weighing and evaluating of the evidence, which 

cannot be a basis for CUE. Mlekoday then appealed to 

the Veterans Court.

The Veterans Court first refused to consider any arguments Mlekoday failed to advance before the Board as 

CUE. The Veterans Court did consider Mlekoday’s 

properly raised arguments of: (1) whether the VA satisfied 

the procedural requirements of 38 C.F.R. § 3.105; (2) 

whether the VA complied with 38 C.F.R. § 3.344(c); and 
MLEKODAY v. SHINSEKI 5

(3) whether the VA improperly found that Mlekoday’s 

temporary position with the U.S. Postal Service constituted evidence of gainful employment. The Veterans Court 

then affirmed each of the Board’s finding on those three 

issues. Mlekoday then appealed to this court.

STANDARD OF REVIEW

Our review of Veterans Court’s decision is limited by 

statute. Under 38 U.S.C. § 7292(a), we may review “the 

validity of a decision of the [Veterans] Court on a rule of 

law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual 

matter) that was relied on by the [Veterans] Court in 

making the decision.” We lack jurisdiction, however, over 

challenges to factual determinations or to a law or regulation as applied to the facts of a particular case, unless the 

challenge presented a constitutional question. See 38 

U.S.C. § 7292(d)(2). To the extent we have jurisdiction, 

we may only set aside a Veterans Court’s legal conclusion 

if it is arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law. 38 U.S.C. 

§ 7292(d)(1)(A).

DISCUSSION

Mlekoday asserts that the Veterans Court erred in 

three ways. He argues that the Veterans Court relied 

upon a misinterpretation of the provisions of: (1) 38 

U.S.C. § 7252(a); (2) 38 C.F.R. § 3.105(e) and (3) 38 C.F.R. 

§ 3.344. The Veterans Court properly found that it lacked 

jurisdiction to address Mlekoday’s contention regarding 

38 C.F.R. § 7252(a) because, under the circumstances, he 

failed to raise that theory of CUE before the Board. As for 

Mlekoday’s contentions regarding 38 C.F.R. §§ 3.105 and 

3.344, we lack jurisdiction over those claims.

A review of the record reveals that Mlekoday raised a 

series of allegations of CUE in the December 1977 RO 

decision. On appeal to the Veterans Court, however, 
6 MLEKODAY v. SHINSEKI

Mlekoday raised several new contentions for the first 

time, including his allegation that the Board failed to 

correctly apply the provisions of 38 C.F.R. § 3.344. As 

such, the Veterans Court did not err when it concluded 

that it lacked jurisdiction over that claim of CUE. The 

Veterans Court’s jurisdiction is limited by statute and is 

to be construed narrowly. See 38 U.S.C. §§ 7252 and 

7261. And, the Veterans Court does not have jurisdiction 

over a new CUE claim that was not first considered by the 

Board. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. 

Cir. 2002) (holding that each allegation of CUE is separate and must be specifically considered by the Board 

before the Veterans Court has jurisdiction). Accordingly, 

we affirm the Veterans Court’s decision that it lacked 

jurisdiction over Mlekoday’s new CUE claim raised for the 

first time on appeal.

Mlekoday next contends that the Veterans Court misinterpreted provisions of 38 C.F.R. §§ 3.105(e) and 3.343. 

In each case, Mlekoday’s arguments amount to disagreements with factual findings, application of law to fact, or 

how the evidence was weighed. Mlekoday, for example, 

disagrees with the level of detail provided in the Board 

decision terminating his benefits, which relied on an 

October 1977 VA decision that informed him of reasons 

for the termination. Likewise, Mlekoday’s attempts to 

couch his allegations regarding 38 C.F.R. § 3.343 as 

anything other than a disagreement with how the evidence was weighed or evaluated are unavailing. As such, 

we lack jurisdiction over Mlekoday’s contentions regarding those regulations.

CONCLUSION

Based on the foregoing, the Veterans Court’s decision 

regarding its lack of jurisdiction over a new CUE claim 

raised for the first time on appeal is affirmed. Because we 

lack jurisdiction over the remaining portions of this 

appeal, they are dismissed. 
MLEKODAY v. SHINSEKI 7

AFFIRMED IN PART, DISMISSED IN PART