NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

CURTIS W. FETTY,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2019-1238

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-2851, Chief Judge Robert N. Davis.

______________________

Decided: September 10, 2019

______________________

CURTIS FETTY, Davidsonville, MD, pro se.

DAVID PEHLKE, Commercial Litigation Branch, Civil 

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

JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., LOREN 

MISHA PREHEIM; Y. KEN LEE, ANDREW J. STEINBERG, Office 

of General Counsel, United States Department of Veterans 

Affairs, Washington, DC.
2 FETTY v. WILKIE

 ______________________

Before PROST, Chief Judge, MOORE and HUGHES, Circuit 

Judges.

PER CURIAM. 

Curtis Fetty appeals a decision of the Court of Appeals 

for Veterans Claims affirming a staged rating assignment 

by the Board of Veterans’ Appeals. Because he fails to 

show legal error in the only claim over which we may exercise jurisdiction, we affirm.

I

Curtis Fetty served in the U.S. Air Force from 1970–76 

and 1988–91. He has filed claims and been granted service 

connection for 17 separate conditions. The current appeal 

concerns only his bilateral pes planus claim.1

The Department of Veterans Affairs first granted Mr. 

Fetty service connection for bilateral pes planus in 2002. 

The Regional Office (RO) rated him as 0% disabled, effective April 14, 1997. Mr. Fetty appealed, and his case eventually reached the Board. In April 2009, the Board 

determined that Mr. Fetty was entitled to a 30% rating, but 

it remanded for the RO to decide the applicable effective 

date for that rating in the first instance. The RO assigned 

Mr. Fetty a staged2 rating of 10%, effective April 14, 1997, 

and 30%, effective June 1, 2002.

 

1 Pes planus is a condition in which there is no arch 

support in the sole of the foot. It is also known as flat feet. 

Mr. Fetty filed a claim for bilateral pes planus, i.e., that 

both his left and right foot lack arch support.

2 A “staged” rating decision refers to a two-step rating decision in which the VA grants one disability rating 

for one period and a second disability rating for a second 

period.
FETTY v. WILKIE 3

While the RO addressed effective dates, Mr. Fetty separately appealed the Board’s 30% rating decision. The Veterans Court reversed in September 2011.

In April 2016, the Board considered Mr. Fetty’s rating 

and the effective dates assigned by the RO. The Board determined that Mr. Fetty was entitled to a 50% rating for 

bilateral pes planus, noting that “[g]iven the chronic, progressive nature and symptomatology of the disability at issue, . . . a 50 percent rating . . . best reflects the disability 

picture shown.” Appx 23.3 Rather than remand again for

the RO to decide the applicable effective date, however, the 

Board adopted the RO’s prior staged rating. Thus, it found 

that Mr. Fetty became entitled to a 50% rating on June 21, 

2002, and that he was 30% disabled for the period between 

April 14, 1997 and June 21, 2002.

On appeal, the Veterans Court determined that Mr. 

Fetty had waived the right to have the RO determine the

effective date in the first instance when he waived his right 

to RO consideration of certain evidence not before the 

agency. See Fetty v. Shulkin, No. 16-2851, 2017 WL 

5901093 (Vet. App. Nov. 30, 2017), adhered to on reconsideration, No. 16-2851, 2018 WL 1256604 (Vet. App. Feb. 7, 

2018). Mr. Fetty appealed to this Court, and we remanded 

for the Veterans Court to assess whether Mr. Fetty had 

knowingly and voluntarily agreed to waive a RO decision 

on the issue of effective date. See Fetty v. Wilkie, No. 2018-

1786, 2018 WL 4846991 (Fed. Cir. Sept. 25, 2018).

On remand, the Veterans Court did not address 

waiver. Instead, it affirmed the Board’s staged disability 

rating on other grounds. It reasoned that, because the 

Board “did not consider an issue that was not addressed by 

 

3 Citations to Appx herein refer to the appendix submitted with Respondent-Appellee Robert Wilkie’s informal 

brief. 
4 FETTY v. WILKIE

the” RO, Mr. Fetty had received his one level of administrative review. See Fetty v. Wilkie, No. 16-2851, 2018 WL 

5255277, at *3 (Vet. App. Oct. 22, 2018). Thus, the Board 

could properly assign a staged rating for bilateral pes 

planus. The Veterans Court noted, moreover, that Mr. 

Fetty bore the burden of establishing error in the staged 

rating decision, but he had “presented no argument with 

respect to the Board’s evaluation of that evidence.” Id. at 

*3.

II

We have limited jurisdiction to review decisions of the 

Veterans Court. We may “decide all relevant questions of 

law, including interpreting constitutional and statutory 

provisions.” 38 U.S.C. § 7292(d)(1). We review such legal 

determinations de novo. Thompson v. McDonald, 815 F.3d 

781, 784 (Fed. Cir. 2016). Absent a constitutional violation, 

however, we have no jurisdiction to review factual determinations or the application of law to facts. Id.

A.

We first address Mr. Fetty’s argument that the Veterans Court legally erred by exceeding its statutory jurisdiction. According to Mr. Fetty, the Veterans Court 

impermissibly engaged in fact finding in the first instance 

when it determined that the Board had “reviewed the same 

evidence, plus two documents” as the RO. Informal Brief 

of the Claimant-Appellant at 11.

Although the Veterans Court may not make factual 

findings in the first instance, see Deloach v. Shinseki, 704 

F.3d 1370, 1380 (Fed. Cir. 2013), we disagree that the Veterans Court engaged in fact-finding here. Instead, the 

Board made this factual determination in the first instance. In its decision, the Board noted that it need not 

remand the claim to the RO because, although Mr. Fetty 

had introduced new evidence in the form of two medical reports, “the Veteran waived initial [RO] consideration of 
FETTY v. WILKIE 5

those documents.”4 Id. The Board thus could address Mr. 

Fetty’s claim “without prejudice to the Veteran.” Appx 17. 

We therefore decline to hold that the Veterans Court impermissibly found that the Board had “reviewed the same 

evidence, plus two documents” as the RO.

B.

Second, Mr. Fetty contests the merits of the Veterans 

Court’s decision. He contends that the Veterans Court’s 

findings are not supported by substantial evidence. But 

this argument misunderstands our jurisdiction. We may 

not review the merits of factual determinations on appeal. 

See Thompson, 815 F.3d at 784. We thus lack jurisdiction 

over these claims.

C.

Third, Mr. Fetty asserts that he has not received his 

statutory right to one review by the Secretary under 38 

U.S.C. § 7104(a) because the RO “has not had the opportunity to review the effective date for the 50 percent initial 

pes planus rating.” Informal Reply Brief of the ClaimantAppellant at 9. But we decline to construe the issue as the 

date on which Mr. Fetty became entitled to a 50% rating. 

First, as a matter of practicality, if the Secretary approved 

the staged disability rating on review, it is not clear how 

increasing one aspect (the disability ratings) creates a new 

issue as to the other aspect (the effective dates). Second, 

we find the reasoning in O’Connell v. Nicholson, 21 Vet. 

App. 89 (2007), persuasive. See id. at 92–93 (rejecting the 

argument that, on appeal from a 30% disability rating, the 

veteran had a right to notice when the Board increased his 

initial rating to 100% and then decreased the final rating 

to 50%). O’Connell suggests that a veteran has not been 

denied procedural protections when the agency awards a 

 

4 The parties do not dispute that Mr. Fetty waived 

initial RO consideration of the two new medical documents.
6 FETTY v. WILKIE

veteran a staged disability rating and the Board later increases the rating at each stage.

We thus find that Mr. Fetty’s argument centers on

whether the Veterans Court correctly determined that his 

staged rating decision had been subject to review by the 

Secretary, not whether the Veterans Court correctly interpreted the legal standard governing the Secretary’s review. 

Because his argument involves the application of law to the 

facts, an issue outside our jurisdiction, we may not address 

it on appeal.

D.

Finally, we lack jurisdiction over the remainder of Mr. 

Fetty’s challenges, which likewise relate to the Veterans

Court’s application of law to the facts rather than any interpretation of the law. For example, Mr. Fetty alleges the 

Veterans Court failed to uphold 38 U.S.C. § 5110, which 

governs the effective date for a claim. But the Board did

consider the date of receipt of Mr. Fetty’s claim, April 14, 

1997, as the earliest possible effective date for the award. 

It nonetheless determined that the facts only supported an 

effective date of June 21, 2002 for the 50% rating. Mr. 

Fetty appears to challenge whether the Board correctly applied § 5110 to determine that the “facts found” supported 

a June 21, 2002 date, not whether the Board properly used 

April 14, 1997 as the earliest possible effective date. That

issue, however, involves the application of law to fact and 

is outside our jurisdiction. 

Similarly, Mr. Fetty argues that the Veterans Court 

failed to reconcile the record into a consistent disability picture under 38 C.F.R. § 4.2. But this argument challenges 

how the Veterans Court reconciled the record, not the legal 

standard the Veterans Court employed. We thus lack jurisdiction to review it as well.
FETTY v. WILKIE 7

III

We have considered Mr. Fetty’s remaining arguments 

and find them unpersuasive. Because Mr. Fetty fails to 

show legal error in the only claim over which we may exercise jurisdiction, we affirm.

AFFIRMED

No costs.