NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit 

06-7046 

CLIFFORD E. WADDELL, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

 

 Respondent-Appellee. 

___________________________ 

DECIDED: October 25, 2006 

___________________________ 

Before BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit 

Judge.

PER CURIAM. 

 Appellant Clifford E. Waddell, a veteran, appeals from a decision of the Court of 

Appeals for Veterans Claims (“the Veterans Court”). We dismiss the appeal for lack of 

jurisdiction. 

 Mr. Waddell was assigned a disability rating of 10% for residual injury to his right 

knee arising from an in-service accident. He appealed from the disability rating, and the 

Board of Veterans’ Appeals ruled that a rating in excess of 10% was not warranted. In 

the course of its opinion, the Board noted that the Veterans Claims Assistance Act 

(“VCAA”) requires the Department of Veterans Affairs (“DVA”) to notify a claimant such 

as Mr. Waddell of various details, including the evidence necessary to substantiate the 
06-7046 

2

claim and which part of the evidence the VA will attempt to obtain on behalf of the 

claimant. The Board concluded that Mr. Waddell had received the required notice in 

various forms, including in a June 2001 letter that “provided detailed information 

regarding the requirements of the VCAA.” In light of the information provided, the Board 

concluded that Mr. Waddell “has received the notice and assistance contemplated by 

law, and adjudication of the claim at this juncture poses no risk of prejudice” to him. 

 Mr. Waddell appealed to the Veterans Court, which affirmed the Board’s decision 

in a one-judge memorandum decision. Most of the court’s opinion was directed to Mr. 

Waddell’s claim that the Board erred in holding that he was not entitled to more than a 

10% disability rating for his right-knee injury. In the course of its opinion, the court 

noted that Mr. Waddell’s counsel had not asserted “with any degree of specificity, how 

the [VCAA] notice was defective and how the lack of that notice affected the essential 

fairness of the adjudication of his claim” (citing Mayfield v. Nicholson, 19 Vet. App. 103, 

121 (2005)). 

 In his brief to this court, Mr. Waddell focuses mainly on the test adopted by the 

Veterans Court for determining whether a failure to satisfy the VCAA’s notification 

requirements constitutes prejudicial error. The Veterans Court, however, did not hold 

that there was error in the VCAA notification given to Mr. Waddell. In fact, it pointed out 

that Mr. Waddell had not even asserted with any specificity that his VCAA notice was 

defective. Because Mr. Waddell’s argument as to the prejudicial-error issue does not 

point to any aspect of the Veterans Court’s decision that is alleged to be based on a 

misinterpretation of a law or regulation, or on an erroneous rule of law, Mr. Waddell’s 
06-7046 

3

arguments regarding harmless error in the context of the VCAA’s notification 

requirements are not within this court’s appellate jurisdiction. See 38 U.S.C. § 7292(a). 

 Mr. Waddell also challenges the action of a DVA physician who requested 

clarification of a medical opinion by another physician while the case was under review 

before the agency. The Veterans Court held that there was nothing improper in the first 

physician’s requesting and obtaining a clarification of the conclusions reached by the 

second physician, who had examined Mr. Waddell. Because the court viewed the first 

physician’s actions as being consistent with the pertinent DVA regulations, the court 

concluded that they “did not violate Mr. Waddell’s rights under the VCAA and do not 

invoke any requirement for an additional medical examination.” Mr. Waddell asserts 

that the action “was prejudicial to the Claimant Appellant as a matter of law.”1

 Mr. Waddell’s argument on this point does not include a challenge to the validity 

or interpretation of any statute or regulation, nor does he challenge the Veterans Court’s 

decision on a rule of law. Instead, his argument is simply that it was improper for the 

agency physician to seek clarification of the examining physician’s opinion, at least in 

the manner in which that was done in this case. That argument, however, calls for this 

court to make factual determinations or to apply law to the particular facts of this case, 

neither of which is within this court’s jurisdiction on appeal from decisions of the 

 

1

 In his reply brief, Mr. Waddell makes new arguments under SEC v. Chenery 

Corp., 318 U.S. 80 (1943), regarding the request for clarification, but arguments made 

for the first time in a reply brief are not properly before the court, and we therefore do 

not address them. See Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 

2002). And we find in the reply brief no persuasive arguments based on our opinion in 

Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), which we granted Mr. Waddell 

permission to address in that brief. 
06-7046 

4

Veterans Court. See 38 U.S.C. § 7292(a), (d)(2). Mr. Waddell’s characterization of his 

argument as claiming prejudice “as a matter of law” does not avoid this limitation on our 

jurisdiction; it merely constitutes a claim that under the facts of this case, an adjudicator 

should find that he was prejudiced. Because we lack jurisdiction to decide that issue, 

we dismiss that portion of his appeal as well.