NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT F. FRICK,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-2278

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-1009, Judge Joseph L. Falvey, 

Jr.

______________________ 

Decided: October 25, 2022

______________________ 

AMANDA SUNDAY, GloverLuck, LLP, Dallas, TX, argued 

for claimant-appellant. Also represented by JULIE L.

GLOVER. 

 TANYA KOENIG, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented 

by BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.

MCCARTHY; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of 

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2 FRICK v. MCDONOUGH

General Counsel, United States Department of Veterans 

Affairs, Washington, DC. 

 ______________________ 

Before LOURIE, TARANTO, and STARK, Circuit Judges.

TARANTO, Circuit Judge.

In 1961, Robert Frick filed a claim for veteran’s disability benefits with a regional office of the agency now 

called the Department of Veterans Affairs (VA), alleging 

that he had disability-causing recurrent shoulder dislocations connected to his military service. The regional office

denied Mr. Frick’s claim in a final rating decision in 1961. 

In May 2018, however, VA’s Board of Veterans’ Appeals reopened Mr. Frick’s claim based on new and material evidence and found his identified shoulder conditions to be 

service connected. Implementing the Board’s May 2018 decision, VA awarded him benefits for his shoulder disabilities with an effective date of January 30, 2014, the day he

filed his successful request to reopen his claim. 

Mr. Frick appealed that effective-date ruling to the 

Board, seeking an earlier effective date back to 1961 on the 

ground that the 1961 rating decision was based on clear 

and unmistakable error (CUE). Understanding Mr. Frick’s 

CUE claim to allege that VA, in 1961, erroneously denied 

him a statutory presumption of soundness, see 38 U.S.C. 

§ 1111 (current version), the Board found no such error—

specifically, no CUE in VA’s 1961 ruling that his benefits 

claim failed under that presumption’s element addressing 

aggravation of a preexisting condition. Mr. Frick appealed 

to the Court of Appeals for Veterans Claims (Veterans 

Court), where he did not urge a Board error regarding the 

presumption of soundness but, instead, contended that the 

Board erroneously failed to consider a CUE claim based on 

the presumption of aggravation, see 38 U.S.C. § 1153 (current version), which he said he had raised to the Board. 

The Veterans Court affirmed the Board’s decision, 

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FRICK v. MCDONOUGH 3

concluding that the Board’s ruling on the aggravation element of the presumption of soundness effectively disposed 

of any CUE claim based on the presumption of aggravation. 

Frick v. McDonough, No. 20-1009, 2021 WL 2149678 (Vet. 

App. May 27, 2021). 

Mr. Frick appeals to this court. The Veterans Court’s 

decision raises questions of law regarding both that court’s 

jurisdiction over and the merits of a CUE claim by Mr. 

Frick invoking the presumption of aggravation. Because 

the Veterans Court decision may well have relied on legal 

error in one or both respects, we vacate the decision insofar 

as it decided a CUE claim invoking the presumption of aggravation, and we remand to the Veterans Court for consideration of its jurisdiction over such a claim and, if it 

properly finds jurisdiction, for reconsideration of that 

claim. No other challenge being presented, we otherwise 

affirm the decision of the Veterans Court.

I 

A 

Mr. Frick served in the United States Army from February to September 1961. Before entering service, Mr. 

Frick suffered from recurrent shoulder dislocations, and in 

the summer of 1960, he had surgery to repair his right and 

left shoulders. In the months after the surgery, but before 

entering service, Mr. Frick continued to experience shoulder difficulties and received an injection to help manage his 

shoulder pain. In his service entrance examination report, 

the examiner stated that Mr. Frick underwent bilateral 

corrective surgery to treat his shoulder dislocations.

While in service, Mr. Frick repeatedly reported chronic 

shoulder dislocations, and he had several medical examinations. Notes from the examinations report Mr. Frick’s 

pre-service chronic bilateral shoulder dislocations and corrective surgery, indicating that Mr. Frick’s recurrent 

shoulder dislocations pre-dated duty. J.A. 35 (noting that 

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4 FRICK v. MCDONOUGH

the dislocations existed prior to service, “EPTS,” and did 

not originate in the line of duty, “LOD”); J.A. 40 (same). In 

August 1961, Mr. Frick was hospitalized for further evaluation of his shoulder dislocations, and the medical examiner noted that Mr. Frick’s shoulder condition “existed 

prior to service and . . . had not been service aggravated” 

and recommended that Mr. Frick be separated from service. J.A. 41. On September 11, 1961, a military medical 

board determined that Mr. Frick’s shoulder condition existed before service, was not incurred in the line of duty, 

and was not aggravated in service; it recommended Mr. 

Frick’s separation from the Army; and Mr. Frick was then 

honorably discharged.

In October 1961, Mr. Frick filed a claim with the local 

VA regional office, seeking wartime-service-based disability benefits under 38 U.S.C. § 310 (now 38 U.S.C. § 1110), 

alleging that his shoulder conditions were disabling and 

had been aggravated in service. On December 8, 1961, the 

regional office denied his claim. It found that, before his 

Army service, Mr. Frick had continuing severe shoulder

pain even after his corrective surgery in 1960, necessitating an injection for pain management; his shoulder disabilities were “noted at induction”; and he spent a 

“considerable part” of his service on restricted duty and in 

the hospital (nearly half of his eight months in service). 

J.A. 54–55. The regional office concluded that, in light of 

Mr. Frick’s pre-enlistment shoulder difficulties and his 

brief time in service (the records from which did not indicate new events producing injury), Mr. Frick’s shoulder 

dislocations were “not permanently aggravated by service.” 

J.A. 56. Mr. Frick did not appeal the 1961 rating decision, 

so it became final.

B

After four times attempting without success to reopen 

his rejected 1961 claim, Mr. Frick filed a request to reopen 

his claim on January 30, 2014, in which, for the first time, 

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FRICK v. MCDONOUGH 5

he alleged that he was attacked by another soldier while in 

service and that the ensuing altercation aggravated his 

shoulder dislocations. Based on this new and material evidence, the Board eventually reopened Mr. Frick’s claim

and found that Mr. Frick’s shoulder disabilities were connected to his service. BVA 18-27104, Docket No. 14-45 421, 

2018 BVA LEXIS 78703 (May 1, 2018). VA’s Appeals Management Center then implemented the Board’s decision by 

assigning an effective date of January 30, 2014—the date 

Mr. Frick filed the successful request to reopen his claim.

Mr. Frick appealed to the Board, arguing that the 1961 

rating decision was based on CUE, so that he was entitled 

to an effective date of October 2, 1961—when he filed the 

claim rejected in the 1961 rating decision. See 38 U.S.C. 

§ 5109A; Ortiz v. McDonough, 6 F.4th 1267, 1270 (Fed. Cir. 

2021). In particular, he argued that the 1961 decision contained CUE in failing properly to apply the statutory presumption of soundness. The relied-on statute said in 1961: 

For the purposes of section 310 of this title, every 

veteran 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 the examination, acceptance, and enrollment, or where clear and 

unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

38 U.S.C. § 311 (1958), now codified as 38 U.S.C. § 1111, 

without change except that “310” is now “1110.” As the Supreme Court described the statute (governing wartime service), “[i]f a veteran’s disability was not noted at the time 

of entry into service, then the veteran is presumptively entitled to benefits unless the VA shows by a heightened burden of proof that the disability ‘existed before . . . and was 

not aggravated by such service.’” George v. McDonough, 

142 S. Ct. 1953, 1957 (2022) (citing 38 U.S.C. § 1111); see 

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6 FRICK v. MCDONOUGH

also George v. McDonough, 991 F.3d 1227, 1229 (Fed. Cir. 

2021), aff’d, 142 S. Ct. 1953 (2022). Here, before the Board, 

Mr. Frick argued that no preexisting disability was noted 

in his service entrance exam, so he was entitled to the presumption of soundness in 1961. Mr. Frick further argued 

that there was a double failure of rebuttal of the presumption—no clear and unmistakable evidence that his shoulder condition preexisted service and no clear and 

unmistakable evidence that the condition was not aggravated by service.1

On January 8, 2020, the Board rejected Mr. Frick’s 

CUE claim. The Board observed that VA, in 1961, “did not 

explicitly address or explain that the presumption of 

soundness did not attach” to the claim before it. J.A. 82. 

But, noting that a regional office at the time did not have 

to provide a statement of reasons or bases for its decisions, 

the Board reasoned that VA in 1961 did say “that the condition was a defect noted at induction, existed prior to service, and was not aggravated by service (which does speak 

to the presumption of soundness),” a discussion that, the 

Board concluded, made it “not clear” that VA in 1961 “did 

not consider the presumption of soundness.” J.A. 83. The 

Board concluded that “[a] review of the evidence available 

at that time confirms that [it] was an accurate finding” that 

“there was no aggravation of the pre-existing shoulder condition.” J.A. 82; see J.A. 83 (same). Accordingly, the Board 

1 Mr. Frick based his argument on the no-aggravation component of the statutory rebuttal standard, not on 

the implementing regulations, which changed over time. 

See George, 991 F.3d at 1230. As discussed infra, the parties dispute whether Mr. Frick also fairly presented to the 

Board a CUE claim invoking the separate statutory presumption of aggravation, 38 U.S.C. § 1153 (formerly § 353), 

a dispute we leave for the Veterans Court to resolve on remand.

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FRICK v. MCDONOUGH 7

could not “find that there is an error that is undebatable or 

of the sort which had it not been made, would have manifestly changed the outcome at the time it was made,” i.e., 

could not find CUE. J.A. 83 (internal quotation marks 

omitted). 

C 

In September 2020, Mr. Frick appealed the Board’s decision to the Veterans Court. He argued that the Board 

misapplied the law in concluding that the presumption of 

soundness did not attach and, also, in determining that

there was no aggravation of Mr. Frick’s shoulder condition 

under the separate statutory presumption of aggravation

prescribed by 38 U.S.C. § 353 (1958), which is now codified, 

without substantive change, at 38 U.S.C. § 1153, and in 

1961 stated: “A preexisting injury or disease will be considered to have been aggravated by active military, naval, or 

air service, where there is an increase in disability during 

such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.”2 The Veterans Court initially affirmed the January 

2020 Board decision. J.A. 113–22. 

Mr. Frick then filed a motion for reconsideration, now 

focusing on the presumption of aggravation stated in 38 

U.S.C. § 1153. He argued that “once the Board determined 

that the 1961 [regional office] did not err in determining 

that he had a preexisting condition noted upon entry, [the 

Board] was required to determine if the [regional office] 

properly applied 38 U.S.C. § 1153 (formerly 38 U.S.C. 

2 The current statute reads: “A preexisting injury or 

disease will be considered to have been aggravated by active military, naval, air, or space service, where there is an 

increase in disability during such service, unless there is a 

specific finding that the increase in disability is due to the 

natural progress of the disease.” 38 U.S.C. § 1153.

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8 FRICK v. MCDONOUGH

§ 353),” specifically, “whether there was CUE in the 1961 

[regional office’s] determination that Mr. Frick’s shoulder 

condition did not increase in disability during service or 

that any increase was due to the ‘natural progress’ of the 

disease or injury.” J.A. 124. Mr. Frick emphasized that 

“[s]ection 1153 involves a wholly separate analysis from 

the aggravation prong in section 1111,” which the Board 

failed to recognize, producing an inadequate Board analysis of the presumption of aggravation. J.A. 124.

On May 27, 2021, the Veterans Court withdrew its initial decision and, on reconsidering the matter, still affirmed the January 2020 Board decision. Frick, 2021 WL 

2149678. With respect to the presumption-of-aggravation 

issue raised by Mr. Frick on reconsideration, the court reasoned that “although the Board does not specify whether 

its [finding of no aggravation] applied to either the presumption of soundness analysis under § 311 or the presumption of aggravation analysis under § 353, the same 

evidence weighs against both the second prong of the presumption of soundness analysis and the showing of aggravation by the veteran under § 353.” Id. at *8. Based on 

that determination, the court concluded that “the Board’s 

failure to distinguish between” the two presumptions was 

“harmless error.” Id. at *9.

Mr. Frick timely appealed. 

II

Mr. Frick challenges the Veterans Court’s affirmance 

of the Board’s decision, but not insofar as the Veterans 

Court affirmed the Board’s rejection of a CUE claim based 

on 38 U.S.C. § 1111, the presumption of soundness. Mr. 

Frick limits his appeal to challenging the Veterans Court’s 

affirmance of the Board insofar as that affirmance was of a 

Board rejection of Mr. Frick’s CUE claim based on § 1153, 

the presumption of aggravation. He argues that the Veterans Court committed errors of law—misinterpreting 38 

U.S.C. §§ 1111 and 1153 and its own authority to make 

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FRICK v. MCDONOUGH 9

factual findings—and that, under the correct legal standards, the Veterans Court was required to remand his CUE 

claim based on § 1153 (the presumption of aggravation) to 

the Board for a more direct and fuller consideration than 

the Board provided. 

This court has jurisdiction to review a Veterans Court 

decision “with respect to 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.” 38 U.S.C. 

§ 7292(a). Where, as here, no constitutional issue is presented, we lack jurisdiction to review the Veterans Court’s 

factual determinations or application of law to the facts of 

a particular case. Id. § 7292(d)(2). 

Here, considering Mr. Frick’s challenges, we conclude 

that the Veterans Court’s decision may well rest on legal 

errors of two types—concerning that court’s jurisdiction 

and concerning the court’s conclusion that the rejection of 

the § 1111 CUE claim necessarily defeated a § 1153 CUE 

claim. We vacate the Veterans Court decision insofar as it 

decided a § 1153 CUE claim, and we remand for further 

proceedings on that issue. See Colantonio v. Shinseki, 606 

F.3d 1378, 1382 (Fed. Cir. 2010) (vacating and remanding 

where the Veterans Court may have applied an erroneous 

interpretation of the law). We otherwise affirm, no other 

aspect of the Veterans Court decision being challenged in 

this appeal.

A 

In his appeal here, Mr. Frick proceeds on the premise 

that he in fact raised to the Board a CUE claim based on 

the presumption of aggravation. That premise implicates 

the Veterans Court’s own jurisdiction. And the Veterans 

Court did not decide whether he had actually raised such a 

claim to the Board.

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10 FRICK v. MCDONOUGH

 The Veterans Court has jurisdiction under 38 U.S.C. 

§ 7252(a) only “to review decisions of the Board of Veterans’ 

Appeals.” “[I]n order to invoke the Veterans Court’s jurisdiction, the veteran’s appeal must challenge a ‘decision’ of 

the Board ‘with respect to the benefit sought by the veteran.’” Andre v. Principi, 301 F.3d 1354, 1359 (Fed. Cir. 

2002) (quoting Maggitt v. West, 202 F.3d 1370, 1376 (Fed. 

Cir. 2000)). We have long held that the Veterans Court, 

under this provision, cannot exercise jurisdiction over a 

claim that was never presented to or decided by the Board, 

id. at 1361—though the jurisdictional bar does not preclude considering new arguments in support of a claim that 

was before the Board, Maggitt, 202 F.3d at 1377. And we 

have also held, more particularly for the CUE context, that 

“each ‘specific’ assertion of CUE constitutes a claim that 

must be the subject of a decision by the [Board] before the 

Veterans Court can exercise jurisdiction over it,” as each 

“assertion of a particular [CUE] . . . constitutes a distinct 

claim.” Andre, 301 F.3d at 1361.

It is undisputed before us that a claim of CUE respecting the presumption of aggravation, under § 1153, is a different “claim” from a claim of CUE respecting the 

presumption of soundness, under § 1111. The Veterans 

Court did not say otherwise. Mr. Frick himself insisted to 

the Veterans Court, when seeking reconsideration of the 

initial affirmance, that § 1153 and § 1111 present distinct 

legal questions. See J.A. 124. 

Yet we see no clear determination by the Veterans 

Court that Mr. Frick’s presumption-of-aggravation CUE 

claim was actually presented to or decided by the Board. It 

would be a legal error to assume jurisdiction over such a 

claim without such a determination. The parties dispute 

the answer to that question. For example, each side points 

to passages in Mr. Frick’s brief to the Board and argues 

about their proper interpretation. See Mr. Frick’s Opening 

Br. at 9 (citing Mr. Frick’s brief to the Board and its argument discussing aggravation using the language of § 353,);

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FRICK v. MCDONOUGH 11

Oral Arg. at 34:30–35:07, 36:26–37:47 (same); Secretary’s 

Response Br. at 24 (citing Mr. Frick’s brief to the Board and 

its assertion that it would be “incorrect” to characterize Mr. 

Frick’s claim “as a claim for aggravation of a preexisting 

disability under 38 U.S.C. § 1153”). Moreover, the Board’s 

decision, in the section on the “CUE argument,” cites § 311 

and § 1111 (the presumption of soundness) but not § 353 

and § 1153. J.A. 79–83. The correct determination on the 

jurisdictional issue is not self-evident, and whether Mr. 

Frick raised a § 1153 CUE claim to the Board requires “a 

factual determination, outside the purview of our appellate 

authority.” Comer v. Peake, 552 F.3d 1362, 1372 (Fed. Cir. 

2009); see Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 

2004) (same). 

Accordingly, we vacate the Veterans Court decision, insofar as it ruled on a § 1153 CUE claim, and remand the 

case for the Veterans Court to consider its jurisdiction to 

address a § 1153 CUE claim in this case. If the Veterans 

Court concludes that it lacks jurisdiction over a presumption-of-aggravation CUE claim, that claim remains available for Mr. Frick to assert in a separate proceeding. See 38 

U.S.C. § 5109A(d); Andre, 301 F.3d at 1362 (“A claimant 

. . . may present a novel allegation that the [regional office] 

committed CUE ‘at any time,’ irrespective of whether the 

Veterans Court has jurisdiction to consider the newlyraised allegation in the first instance.” (quoting 38 U.S.C. 

§ 5109A(d))).

B 

The Veterans Court’s rejection of Mr. Frick’s presumption-of-aggravation CUE claim (raised to it on reconsideration) also raises non-jurisdictional legal issues, which we 

briefly address because the issues may arise on remand. 

The presumption of soundness (§ 1111) and the presumption aggravation (§ 1153) are distinct, including with regard to who carries particular burdens regarding issues of 

in-service aggravation that may arise in applying either 

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12 FRICK v. MCDONOUGH

presumption. We have summarized: For § 1111, “[w]hen 

no preexisting condition is noted upon entry into service, 

the veteran is presumed to have been sound upon entry,” 

and the burden falls to the government to rebut the presumption of soundness, a rebuttal that requires a non-aggravation showing; for § 1153, “if a preexisting disorder is 

noted upon entry into service, . . . the burden falls on the 

veteran to establish aggravation,” and if the veteran does 

so, the presumption of aggravation arises and “the burden 

shifts to the government to show a lack of aggravation.” 

Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 

We have specifically noted the bearing that determinations 

on aggravation in one context can have in the other. Id.

The Veterans Court concluded that the Board’s finding

of no aggravation in its § 1111 CUE analysis also supported 

a denial of a § 1153 CUE claim. But for that conclusion to 

be tested for any legal error, more detailed analysis than is 

present in the Veterans Court decision is warranted, taking more explicit and step-by-step account of, e.g., the precise aggravation issues, the assignments of burdens of 

production or persuasion, the requirements of the CUE 

standard, and any difference in VA regulations applicable 

in 1961 properly raised and argued. Moreover, in stating 

that the absence of express discussion by the Board of a 

§ 1153 CUE claim regarding the 1961 rating was “harmless 

error” in light of the Board’s rejection of the § 1111 CUE 

claim, Frick, 2021 WL 2149678, at *9, the Veterans Court 

said that “the same evidence” supporting the § 1111 ruling 

“weighs against” a § 1153 ruling for Mr. Frick, id. at *8. 

But “weighs against” as a standard does not match the 

harmless-error standard, under which prejudice—the opposite of harmlessness—“can be shown by demonstrating 

that the error . . . affected or could have affected the outcome.” Slaughter v. McDonough, 29 F.4th 1351, 1355 (Fed. 

Cir. 2022) (internal quotation marks omitted) (quoting 

Simmons v. Wilkie, 30 Vet. App. 267, 279 (Vet. App. 2018), 

aff’d, 964 F.3d 1381 (Fed. Cir. 2020)). Where harmlessCase: 21-2278 Document: 28 Page: 12 Filed: 10/25/2022
FRICK v. MCDONOUGH 13

error standards are not met, and facts must be found, the 

task is not for the Veterans Court, which may not engage 

in “de novo fact-finding.” Tadlock v. McDonough, 5 F.4th 

1327, 1333 (Fed. Cir. 2021) (“Congress expressly limited 

the Veterans Court's jurisdiction to exclude de novo factfinding.”); see also ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 283 (1987) (noting general bar on 

courts, in reviewing agency decisions, making determinations of fact or exercising discretion reserved to the agency 

within the bounds enforced by judicial review). 

On remand, if the Veterans Court concludes that it has 

jurisdiction to address a § 1153 CUE claim here, it should 

reconsider the claim on the merits, including whether additional fact-finding by the Board is needed. 

III

For the foregoing reasons, we vacate the Veterans 

Court decision insofar as it decided a § 1153 CUE claim, we 

otherwise affirm, and we remand for further proceedings 

consistent with this opinion. 

The parties shall bear their own costs. 

AFFIRMED IN PART AND VACATED IN PART,

AND REMANDED

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