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, Secretar y 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 decisi on of the Court of Appeals for Veterans Claims (“t he 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 rul ed 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 t he evidence necessary to substantiate the06-7046 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 lette r that “provided detailed information regarding the requirement s of the VCAA.” In light of t he information provided, the Board concluded that Mr. Waddell “has received the notice and assistance contemplated by law, and adjudication of the claim at this j uncture poses no risk of prejudice” to him. Mr. Waddell appealed to the Veterans Cour t, 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 entit led 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 a ffected 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 fo cuses mainly on the test adopted by the Veterans Court for determini ng 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 VC AA notification given to Mr. Wadde ll. In fact, it pointed out that Mr. Waddell had not even asserted with any specificit y 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 a lleged to be based on a misinterpretation of a law or regulation, or on an erroneous rule of law, Mr. Waddell’s06-7046 3 arguments regarding harmless error in t he 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 ac tion 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 clarificat ion 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 wit h 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 m edical 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 stat ute or regulation, nor does he challenge the Veterans Court’s decision on a rule of law. Instead, his argum ent is simply that it was improper for the agency physician to seek clarific ation 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 appl y law to the particular facts of this case, neither of which is within this court’s ju risdiction 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 cour t, 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 r eply brief no persuasive arguments based on our opinion in Mayfield v. Nicholson , 444 F.3d 1328 (Fed. Cir. 2006), wh ich 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 th is limitation on our jurisdiction; it merely constitutes a claim t hat under the facts of th is 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.