NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

ARNOLD J. FREEDMAN,

Claimant-Appellant,

v.

Eric K. Shinseki, 

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee.

______________________

2012-7098

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-4117, Judge Robert N. Davis.

______________________

Decided: March 11, 2013 

______________________

ARNOLD J. FREEDMAN, of Woodbury, New York, pro se. 

CORINNE A. NIOSI, Attorney, 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, Acting 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and SCOTT D. AUSTIN, Assistant Director. Of counsel 

on the brief were MICHAEL J. TIMINSKI, Deputy Assistant 

General Counsel, and JONATHAN E. TAYLOR, Attorney, 
2 ARNOLD FREEDMAN v. SHINSEKI

United States Department of Veterans Affairs, of Washington, DC. 

______________________

Before MOORE, REYNA, and WALLACH, Circuit Judges.

PER CURIAM.

Claimant-Appellant Arnold Freedman appeals the decision of the United States Court of Appeals for the Veterans Claims (“Veterans Court”) affirming a November 24, 

2010 decision of the Board of Veterans’ Appeals (“Board”). 

Freedman v. Shinseki, No. 10–4117, 2012 WL 268266 

(Vet. App. Jan. 31, 2012). The Veterans Court affirmed 

the Board’s decision denying an earlier effective date on 

the basis of clear and unmistakable error (“CUE”). We 

dismiss for lack of jurisdiction. 

BACKGROUND

Mr. Freedman served on active duty in the Army from 

March 5, 1953 to December 12, 1953. The record indicates that Mr. Freedman had a difficult time adjusting to 

military service. Mr. Freedman’s difficulties remained 

consistent, which the record shows led to his perception of 

the Army as unfair and discriminatory.1 Mr. Freedman 

eventually became more hostile and paranoid, and in 

September 1953 about six months into his military service, it was recommended he be admitted for observation 

and be evaluated for neuropsychiatric problems. 

1 For example, there was an incident in which Mr. 

Freedman was incorrectly charged with being away 

without leave when he overstayed a three-day pass for the 

Jewish holidays. Although the court martial verdict was 

overturned and apologies were issued when it turned out 

that he had taken ill while at home, that experience and 

other further difficulties exacerbated Mr. Freedman’s 

perception of the Army. 

 
 ARNOLD FREEDMAN v. SHINSEKI 3

During his admission, it was discovered Mr. Freedman had a prior history of psychiatric problems. In

particular, he reported a prior history of problems with 

authority figures at work, as well as narcissistic and 

grandiose thought patterns. He received a diagnosis of 

schizophrenic reaction, paranoid type, chronic, moderate, 

manifested by looseness of associations, paranoid ideation, delusions of persecution, ideas of reference, and 

grandiose productions. The examiner further opined that 

there was no evidence of impairment of his social or 

industrial capacity beyond that of his pre-service level 

adjustment. A physical evaluation board also noted this 

condition exited prior to service and was not in the line of 

duty. As a result, Mr. Freedman was discharged in 

December 1953—less than a year from his entrance into 

service. 

The day after separation from service, Mr. Freedman

filed a claim for disability benefits for a “nervous condition.” Pursuant to that claim he received an initial VA 

medical examination, which stated in relevant part:

The Army diagnosed schizophrenia, in complete 

remission. They noted a “looseness of association” 

and grandiose and paranoid trends. I do not think 

this diagnosis is correct. The whole story, as outlined in the Army records and as not given by him 

in retrospect, can be explained as a manifestation 

of an immature personality. In my opinion he has 

paranoid trends but is not psychotic. To be sure, 

his ability to withstand stress is not good, and it is 

possible he may some day break down, but for rating purposes at present I would diagnose him as . 

. . [p]assive-aggressive personality. 

Appendix (“App.”) at 46–47. Relying on this analysis, and 

its own medical analysis, the rating board at the Regional 

Office (“RO”) denied the claim. Mr. Freedman did not 

appeal this decision (“1954 Rating Decision”). 
4 ARNOLD FREEDMAN v. SHINSEKI

On December 30, 2005, the RO received a claim from 

Mr. Freedman requesting service connection for schizophrenia. Finding new and material evidence had been 

submitted, the Board reopened Mr. Freedman’s prior 

claim for service connection in March 2008, and granted 

service connection for the anxiety disorder in October 

2008. On remand, the RO effectuated the Board’s decision granting service connection for anxiety disorder, 

assigning an initial 30 percent rating from December 30, 

2005. December 30, 2005 was assigned as the effective 

date pursuant to 38 U.S.C. § 5110.2 Mr. Freedman disagreed with the assignment of the effective date, arguing

that the effective date should be the day after his separation from service, and he appealed the RO’s effective date 

determination to the Board. At a hearing before the 

Board in September 2010, Mr. Freedman presented a 

CUE theory for the first time arguing that the 1954 

Rating Decision was in error, which if found to be true, 

would allow his effective date to relate back to the date of 

that decision. 38 C.F.R. § 3.105(a) (“For the purpose of 

authorizing benefits, the rating or other adjudicative 

decision which constitutes a reversal of a prior decision on 

the grounds of clear and unmistakable error has the same 

2 38 U.S.C. § 5110(i) states, in relevant part: 

Whenever any disallowed claim is reopened and thereafter allowed on the basis of new and material evidence . . . 

the effective date of commencement of the benefits so 

awarded shall be the date on which an application was 

filed for correction of the military record or for the change, 

modification, or correction of a discharge or dismissal, as 

the case may be, or the date such disallowed claim was 

filed, whichever date is the later, but in no event shall 

such award of benefits be retroactive for more than one 

year from the date of reopening of such disallowed claim. 

 
 ARNOLD FREEDMAN v. SHINSEKI 5

effect as if the corrected decision had been made on the 

date of the reversed decision.”).

In a November 24, 2010 decision, the Board found 

that Mr. Freedman’s request of an effective date as the 

day after his separation from service relates back to the 

1954 Rating Decision, which he had not appealed and was 

therefore final. As a result, the Board noted that decision 

could only be revised upon a collateral attack showing 

that the RO committed CUE. The Board concluded that 

Mr. Freedman had not established CUE, and the Veterans Court affirmed. Mr. Freedman filed a timely appeal

to this court. 

DISCUSSION

This court has jurisdiction to review decisions by the 

Veterans Court with respect to a “challenge to the validity 

of any statute or regulation or any interpretation thereof.” 

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

determinations or the application of law to fact, except to 

the extent that a veteran’s appeal presents a constitutional issue. Id. § 7292(d)(2).

In order for his effective date to relate back to 1954, 

Mr. Freedman requests revision of the unappealed 1954 

Rating Decision on the basis of CUE, which is a collateral 

attack of a final decision. Disabled Am. Veterans v. Gober, 

234 F.3d 682, 696–98 (Fed. Cir. 2000). With respect to 

the CUE claim, 38 U.S.C. § 5109A authorizes the Secretary to revise an earlier, final decision if the decision is 

the product of a clear and unmistakable error. Therefore, 

in order to revise a final decision, it must be the case that:

(1) Either the correct facts, as they were known at 

the time, were not before the adjudicator or the 

statutory or regulatory provisions extant at the 

time were incorrectly applied,

(2) The error must be “undebatable” and the sort 

“which, had it not been made, would have mani-
6 ARNOLD FREEDMAN v. SHINSEKI

festly changed the outcome at the time it was 

made,” and

(3) A determination that there was CUE must be 

based on the record and the law that existed at 

the time of the prior adjudication in question.

Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008) 

(citing Russell v. Principi, 3 Vet. App. 310 (1992)); see

Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2002) (en 

banc).

The controlling regulation that existed at the time of 

the 1954 Rating Decision included the following provision:

Every person employed in active service shall be 

taken to have been in sound condition when examined, accepted and enrolled for service except as to 

defects, infirmities or disorders noted at the time 

of examination, acceptance and enrollment or 

where clear and unmistakable evidence demonstrates that the injury or disease existed prior to 

acceptance and enrollment and was not aggravated by such service.

38 C.F.R. § 3.63(b) (1954). The regulation also defined

“clear and unmistakable” as “obvious or manifest.” 38 

C.F.R. § 3.63(d). In view of this provision, the Veterans 

Court began its review of the Board’s decision with a

reading of the 1954 Rating Decision. The court took note 

of the decision’s conclusion: “No matter what the NP 

[neuropsychiatric] disability may eventually be in this 

case, it is clear and convincing that it existed prior to 

induction and that his Army experiences did not result in 

permanent increase in the basic level thereof.” Freedman, 

2012 WL 268266 at *2 (alteration in the original, emphasis added, and internal citation omitted).
 ARNOLD FREEDMAN v. SHINSEKI 7

Accordingly, the Veterans Court rejected Mr. Freedman’s contention that the RO’s application of an incorrect 

legal standard was outcome determinative. The Veteran’s 

Court, while recognizing the RO’s error in the use of the 

“clear and convincing” standard as opposed to the “clear 

and unmistakable” standard, nevertheless, found that in 

a CUE matter, the appellant has the additional burden of 

showing that absent the error the outcome would have 

been “manifestly different.” Id. at *3. 

The Veterans Court determined that Mr. Freedman 

cannot show that the outcome would have been “manifestly different” for at least two reasons. First, the Veterans 

Court noted that the RO accepted the initial VA examination’s diagnosis of a passive-aggressive personality disorder, which was a noncompensable disability under the 

regulation. See 38 C.F.R. § 3.63(f) (1954). Therefore, 

according to the court, the existence of this noncompensable condition would not have affected the decision of the 

RO in denying service connection. 

In addition, the Veterans Court determined that Mr. 

Freedman failed to contend how the RO committed clear 

and unmistakable error in light of the evidence documenting his problems as existing prior to service. Hence, the 

Veterans Court held that it was “unable to say that the 

Board erred in finding that the 1954 [R]ating [D]ecision 

did not involve undebatable error that, had it not been 

made, would have manifestly changed the outcome of that 

decision.” Freedman, 2012 WL 268266 at *4 (internal 

citations omitted).

On appeal to this court, Mr. Freedman contends that 

“[e]verything happened in the Army, not prior to or aggravated in service . . . All evidence prior to entering 

service states no medical or mental condition.” Appellant’s 

Informal Br., Resp. No. 2. Also, in response to the third 

question in the Appellant’s Informal Brief, Mr. Freedman 

suggests that the 1954 Rating Decision failed to apply 38 
8 ARNOLD FREEDMAN v. SHINSEKI

C.F.R. § 3.63(b). Id., Resp. No. 3. Generally, Mr. Freedman makes similar arguments previously presented to 

the Board and the Veterans Court.

As to his first contention, “[w]hether evidence regarding the veteran’s pre-existing condition rises to the level 

of ‘clear and unmistakable evidence’ is simply the application of the facts to the legal standard” an issue that the

Federal Circuit is without jurisdiction to consider. 

Waltzer v. Nicholson, 447 F.3d 1378, 1380 (Fed. Cir. 2006)

(quoting Belcher v. West, 214 F.3d 1335, 1338 (Fed. Cir. 

2000)). In other words, we do not have jurisdiction to 

consider the Board’s and the Veterans Court’s review of 

the RO’s 1954 Rating Decision in determining whether 

the evidence in the record was sufficient to constitute 

clear and unmistakable evidence. With regard to Mr. 

Freedman’s second contention, this court also lacks jurisdiction to consider this argument. Indeed, Mr. Freedman’s reference to 38 C.F.R. § 3.63(b) does not raise any 

questions involving an interpretation of the regulation 

itself, but rather whether, assuming error, the error was 

outcome determinative. Based on facts in the record, the 

Veterans Court found that misapplication of the “clear 

and unmistakable” language as recited in 38 C.F.R. § 

3.63(b) did not affect the outcome. We lack jurisdiction 

over such factual determinations. 

All other arguments Mr. Freedman presents are without merit. In particular, Mr. Freedman does not provide 

any explanation as to how his constitutional rights may

have been implicated in the Veterans Court’s affirmance 

of the November 24, 2010 Board Decision. Accordingly, 

they are not before this court for review. See 38 U.S.C. 

7292(a). Thus, we dismiss this case for lack of jurisdiction.

DISMISSED.

No costs.