N OTE : This disposition is nonprecedential.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

______________________

K ENNETH M. C ARPENTER , Carpenter, Chartered, of Topeka, Kansas, for claimant

- appellant.

D OMENIQUE K IRCHNER , Senior Trial Counsel, Co mmercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, fo r respon dent

- appellee. With her on the brief were S TUART F. D ELERY , Principal Deputy Assistant Attorney General, J EANNE E. D AVIDSON , Director, and M ARTIN F. H OCKEY , J R

. , Assistant Director. Of counsel on the brief were D AVID J. B ARRANS , Deputy Assistant General Counsel,MLEKODAY v. SHINSEKI 2

and R ACHEL T. B RANT , Attorney, United States Depar tment of Veter ans Affairs, of Washington, DC. Of counsel was L. Misha Preheim, Trial At torney, Commercial Litigation Branch, United States Department of Justice, of Washington, DC.

______________________

Before L OURIE , D YK , and O’M ALLEY , Circuit Judges.

P ER C URIAM

. Richard C. Mlekoday (“Mlekoday”) appeals from the final decision of the U nited States Court of App eals for Veterans Claims (“Veterans Court”) holding that the Board of Veterans’ Appeals (“Board”) did not err when it foun d no clear and unmistakable error (“CUE”) in a December 5, 1977 r ating decision that terminated Mlekoday’s to tal disability rating based on indivi dual 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 July 24, 2012) (unpublished).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 regul ations 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
t he Veterans Court erred by not considering an argument he failed to raise before the Board. On that point, we affirm

- in

- part

. B ACKGROUND 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 Janu ary 1969, the Department of Veterans Affairs (“ VA ”) regional office (“RO”) in St. Paul, Minnesota, granted Mlekoday service con nection (80% rating) for a series of con ditions and also found that he was unemployable because of his injuries

. As a r esult, the RO found that he was entitled toMLEKODAY 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 quest ionnaire that indicated that he had worked for the U.S. Postal Servic e from June to September 1977. Based on Mlekoday’s questionna ir e, the RO issued a notice , dated October 3, 1977, stating that

, because he indicated that he had obtained full

- time employ ment, he was required to appear for an immediate VA medic al examination to determine his continued eligibility for benefits

. The RO decision also infor med 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 demonstr ating 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 eviden ce

. On October 1 2, 1977, Mlekoday sent a letter to the VA disagree ing with the RO’s statement regarding his dis ability. 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 da ys and that his earnings were around $2,000 in total

. On November 30, 1977, Mlekoday’s accredited representativ e sent a letter to the RO stating that Mlekoday had not reported for his sche duled 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 dec ision and found that the record evidence did not demo nstrate that Mlekoday’s disabilities prevented al l forms ofMLEKODAY v. SHINSEKI 4

gainful emp loyment. As such, the RO terminated Mlekoday’s TDIU rat ing 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 examina tion.
Mlekoday underwent a VA medical examination on March 30, 1978. In April 1978, the RO issued a suppl emental 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 hi s 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 r evise the December 1977 RO rating d ecision on the grounds of CUE. Among other things, he challenged the RO decision that termina ted his TDIU bene fits. The Board determined that the RO decision did not suffer from CUE. The Board determined that t he discontin uance of Mlekoday’s TDIU was not clearly and unmistak ably erroneous because the evidence demonstrated that his failure to report for the VA examina tion in 1977

, and his refusal to complete the necessary paperwork, the RO

p roperly discontinued his TDIU. The Board also held that Melkoday’s objections to the Decem ber 1977 decision required weighing and evaluating of the evidence, wh ich cannot be a basi s for CUE. Mlekoday then appealed to the Veterans Court.

The Veterans Court first refused to consider any a rguments Mlek oday failed to ad vance before the Board as CUE. The Veterans Court did consider Mlekoday’s properly raised arguments of: (1) whether t he 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); andMLEKODAY v. SHINSEKI 5

(3) whether the VA improperly found that Mlekoday’s temporary position with the U.S. Postal Service constitu ted e vidence of gainful employment. The Veterans Court then affirmed each of the Board’s finding on those three issues. Mlekoday then appealed to this court.

S TANDARD OF R EVIEW Our review of Veterans Court’s decision is limited by statute. Under 38 U.S.C. § 7292(a), we may re view “the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation

. . . or any interpret ation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decis ion.” We lack jurisdiction, however, over challenges to factual determinations or to a law or regul ation 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).

D ISCUSSION 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 circums tances, h e failed to raise that theory of CUE before the B oard. As for Mlekoday’s contentions regard ing 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 serie s of allegations of CUE in the December 1977 RO decision. On appeal to the Veterans Court, however,MLEKODAY v. SHINSEKI 6

Mlekoday raised several new contentions for the first time, including his allegation that the Board failed to correctly apply the provisions of 3 8 C.F.R. § 3.344. As such, the Veterans Court did not err when it concluded that it lacked jurisd iction over that claim of CUE. The Veterans Court’s jurisdiction is lim ited 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. 20 02 ) (holding that each allegation of CUE is sep arate 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 cla im raised for the first time on appeal.
Mlekoday next contends that the Veterans Court mi sinterpreted provision s of 38 C.F.R. §§ 3.105(e) and 3.343. In each case, Mlekoday’s argument s amount to disagre ements with factual findings, application of law to fa ct, or how the evidence was weighed. Mlekoday, for example, disagrees with th e 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 attempt s to couch his allegations regarding 38 C.F.R. § 3.343 as anything other than a disagreement with how the ev idence was weighed or evaluated are unavailing. As such, we lack jurisdiction over Mlekoday’s contentions regar ding tho se regula tions.

C ONCLUSION

Based on the fo regoing, 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 portion s of this appeal

, they are dismissed

.MLEKODAY v. SHINSEKI 7

AFFIRM ED IN PART, DISMISS ED IN PART