NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-7101 

RICHARD C. LANCASTER, 

Claimant-Appellant, 

v. 

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, 

Respondent-Appellee. 

Richard C. Lancaster, of Newton, Mississippi, pro se. 

Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent-appellee. With 

him on the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the 

brief were Ethan G. Kalett, Supervising Attorney, and Tracey P. Warren, Attorney, 

Office of the General Counsel, United States Department of Veterans Affairs, of 

Washington, DC. 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge Ronald M. Holdaway 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

2008-7101 

RICHARD C. LANCASTER, 

 Claimant-Appellant, 

v. 

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, 

 Respondent-Appellee. 

Appeal from the United States Court of Appeals for Veterans Claims in 06-1956, Judge 

Ronald M. Holdaway. 

______________________________ 

DECIDED: September 5, 2008 

______________________________ 

Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and Walker, Chief

District Judge.

*

PER CURIAM. 

The appellant Richard C. Lancaster, a pro se veteran, challenges the United 

States Court of Appeals for Veterans Claims (“Veterans Court”)’s, affirmance of the 

Board of Veterans Appeals (“Board”)’s finding that there was not clear and unmistakable 

error in a December 1992 rating decision denying his claim for a left elbow disability. 

We affirm. 

 *

 Honorable Vaughn R. Walker, Chief Judge, United States District Court for 

the Northern District of California, sitting by designation. 
I 

While Lancaster was on active duty, a 1975 medical report indicated he had 

sustained abrasions on his left elbow. After his release from service, in 1988 he filed a 

claim with the Veterans Administration for a left elbow disability. In December 1992 the 

Administration’s regional office denied that claim. Lancaster did not appeal that 

decision, which became final. 

 In 2001, he filed with the regional office a claim that the 1992 decision contained 

clear and unmistakable error. If that claim were sustained, it would terminate the finality 

of the regional office’s 1992 decision. The regional office denied that claim, however; 

the Board affirmed; and the Veterans Court affirmed the Board. 

The Veterans Court held that “the correct facts, as they were known, were before 

the R[egional] O[ffice]; the R[egional] O[ffice] applied the applicable statutory provisions 

existing at the time; and, but for any alleged error, the outcome would not have been 

different.” The Veterans Court also stated that a clear-and-unmistakable-error claim 

could not be based upon the regional office’s failure to perform its duty to assist the 

veteran in presenting his case or the contention that the regional office improperly 

weighed the evidence. The Veterans Court concluded that the Board’s decision 

denying Lancaster’s clear-and-unmistakable-error claim was not “arbitrary, capricious, 

an abuse of discretion, or otherwise contrary to law.” 

Under the governing statute, this court has only limited jurisdiction in reviewing a 

decision of the Veterans Court. “Except to the extent that an appeal . . . presents a 

constitutional question,” this court “may not review (A) a challenge to a factual 

2008-7101 2
determination, or (B) a challenge to a law or regulation as applied to the facts of a 

particular case.” 38 U.S.C. § 7292(c). 

Lancaster’s principal contention–that he demonstrated clear and unmistakable 

error in the regional office’s initial denial of his claim for a left elbow disability–rests 

primarily on his challenge to the regional office’s evaluation of the evidence upon which 

it based its decision. Unfortunately for Lancaster, we have no jurisdiction to review that 

challenge. 

Although Lancaster also alleges generally that he was denied due process, he 

makes no attempt to explain the theory on which he bases that claim. Describing the 

rejection of factual allegations as violating due process is insufficient to invoke the 

constitutional exception to the statutory prohibition on our reviewing a factual question. 

See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). “[T]he mere recitation of a 

basis for jurisdiction by either party or a court, is not controlling; we must look to the true 

nature of the action.” Livingston v. Derwinski, 959 F.2d 224, 225 (Fed. Cir. 1992). 

Lancaster makes two statutory contentions. First, he argues that he was “never 

afforded protection under [38 U.S.C. § 1131].” That provision outlines the basic 

entitlement to disability benefits for veterans who served during times of peace. That 

contention is but a reiteration of his factual contention of disability in different dress. 

Second, he argues that the “VA refuses to accept [38 U.S.C. § 5107] with regard 

to this claim as required by law.” That provision indicates that claimants must 

demonstrate an entitlement to benefits, and when the evidence is in equipoise, the 

Secretary must give the benefit of the doubt to the claimant. The evidence regarding 

Lancaster’s disability was not in equipoise, however, so that provision is inapplicable. 

2008-7101 3
2008-7101 4

We have considered all of Lancaster’s other contentions, but deem them 

unpersuasive. 

The decision of the Veterans Court affirming the Board decision denying 

reopening of Lancaster's left elbow disability claim because he failed to establish clear 

and unmistakable error is 

AFFIRMED.