NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT L. STRICKLAND, JR.,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee.

______________________ 

2013-7095

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 11-2680, Judge Mary J. Schoelen.

______________________ 

Decided: October 8, 2013

______________________ 

ROBERT L. STRICKLAND, JR., of Sumter, South Carolina, pro se. 

ALEXANDER V. SVERDLOV, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondentappellee. With him on the brief were STUART F. DELERY, 

Acting Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and MARTIN F. HOCKEY, JR., Assistant Director. 

Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy 

Assistant General Counsel, and JOSHUA P. MAYER, Attor-
2 STRICKLAND v. SHINSEKI

ney, United States Department of Veterans Affairs, of 

Washington, DC.

______________________ 

Before NEWMAN, CLEVENGER, and TARANTO, Circuit 

Judges.

PER CURIAM.

In 2011, the Board of Veterans’ Appeals partly denied 

and partly dismissed Robert L. Strickland’s motion asserting that the Board had earlier committed clear and 

unmistakable error regarding certain of Mr. Strickland’s 

claims for disability benefits. The Court of Appeals for 

Veterans Claims found no error in the Board’s decision. 

Strickland v. Shinseki, No. 11-2680, 2013 WL 388584 

(Vet. App. Jan. 31, 2013). Because of the limits on this 

court’s own jurisdiction to review decisions of the Veterans Court, we dismiss Mr. Strickland’s appeal. 

BACKGROUND

Mr. Strickland served on active duty in the United 

States Air Force from April 1980 to June 2000. In April 

2000, he filed a claim for veterans’ disability benefits, 

asserting that he was suffering from multiple ailments, 

including sinusitis, allergic rhinitis, bilateral hearing loss, 

bilateral leg tendonitis, mild forefoot difficulties, mild 

eczema, vision impairment, low back pain, and a dental 

condition, and that each of the conditions was connected 

to his military service. 

In November 2000, a Regional Office of the United 

States Department of Veterans Affairs (VA) found a 

service connection for Mr. Strickland’s mild eczema,

sinusitis, allergic rhinitis, and mild forefoot difficulties. 

The Regional Office also found that his eczema and forefoot difficulties were compensable under the VA’s rating 

system, and it classified each condition as 10 percent 

disabling. The Regional Office determined, however, that 
STRICKLAND v. SHINSEKI 3

although Mr. Strickland had suffered from sinusitis and 

allergic rhinitis related to his military service, he did not 

have compensable forms of those problems as of July 

2000, the effective date of his application for benefits. In 

particular, the Regional Office determined that these two 

problems had been adequately addressed by sinus surgery 

in 1999 along with regularly administered medications. 

Finally, the Regional Office denied Mr. Strickland’s 

claims of service connection for vision impairment, bilateral hearing loss, low back pain, and tendonitis. Mr. 

Strickland did not file a notice of disagreement with the 

Regional Office determinations, which therefore became 

final. See 38 U.S.C. § 7105, 38 C.F.R. §§ 3.104(a), 

3.160(d), 20.302(a), 20.1103. 

In July 2002, Mr. Strickland submitted a statement to 

the Regional Office, reporting that his allergies (underlying his sinusitis and rhinitis) had become more severe 

since 2000 and that he now required additional medication. In his statement, Mr. Strickland also requested 

reopening of his claims for bilateral hearing loss, tendonitis of the ankles, tendonitis of the legs, and a dental 

disorder. In January 2003, based on this statement and 

the subsequent VA medical examination, the Regional 

Office granted Mr. Strickland a 10 percent disability 

rating for his sinusitis and allergic rhinitis. But the

Regional Office determined that there was no new and 

material evidence to justify reopening his disability 

compensation claims for bilateral hearing loss, tendonitis 

of the legs, tendonitis of the ankles, and a dental condition. 

Mr. Strickland appealed the Regional Office’s 2003 

decision to the Board of Veterans’ Appeals, arguing that 

he was entitled to a disability rating for his sinusitis and 

rhinitis higher than 10 percent and that his denied claims 

should be reopened. On March 6, 2009, after an initial

hearing and remand, the Board issued its decision. The 

Board considered additional evidence submitted after Mr. 
4 STRICKLAND v. SHINSEKI

Strickland’s July 2002 statement, including two VA 

medical examinations, a computed-tomography examination, and multiple reports from Mr. Strickland, but it 

found that Mr. Strickland was not entitled to a disability 

rating of more than 10 percent for his sinusitis and allergic rhinitis under 38 C.F.R. § 4.97. The Board also found 

that Mr. Strickland had not identified any new and material evidence that would justify reopening his claims for 

benefits based on vision problems, bilateral hearing loss, 

tendonitis of the legs, tendonitis of the ankles, and a 

dental disorder.1 For those claims, the Board found that

Mr. Strickland had not carried his burden of presenting

new and material evidence relating to each alleged disability, i.e., evidence not previously submitted to the VA 

that “relates to an unestablished fact necessary to substantiate the claim.” 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 

The Board did, however, grant Mr. Strickland’s request to reopen his claim for a chronic low back disorder

and found a service connection for that disorder. In June 

2004, a medical provider found that Mr. Strickland suffered from bulging disks and degenerative joint disease of 

the cervical spine and lumbar spine. In the provider’s

opinion, it was “certainly a possibility” that Mr. Strickland’s current back condition was related to his back 

injury during service. The Board also considered an 

August 2008 clinical opinion, which established that Mr. 

Strickland was treated for a chronic back disorder while 

1 The Board referred two of Mr. Strickland’s 

claims—for benefits based on dry-eye syndrome and 

damage to his eardrums—back to the Regional Office for 

further inquiry. In addition, reading several of Mr. 

Strickland’s statements as seeming to raise a claim for VA 

dental benefits based on in-service treatment of his teeth, 

the Board referred that potential claim to the Regional 

Office. 

 
STRICKLAND v. SHINSEKI 5

in service and that the disorder had continued and was

still being treated. The Board concluded that there was 

sufficient new and material evidence of a lower-back 

disorder that was related to an in-service injury. 

The Board also granted Mr. Strickland’s request to 

reopen his claim for tendonitis of the ankles. A November 

2002 orthopedic evaluation had diagnosed Mr. Strickland 

with chronic bilateral ankle strains, a condition that had 

been present during Mr. Strickland’s service. Based on 

that evaluation and an earlier one, the Board found that 

there was new and material evidence regarding Mr. 

Strickland’s claim for benefits based on an ankle disorder. 

The Board remanded the claim to the Regional Office. 

Mr. Strickland did not appeal to the Veterans Court 

either the denial of the rating increase or the rejection of 

reopening as to a number of his claims.

In May 2011, Mr. Strickland filed with the Board a 

motion for “reconsideration and revision” of the March 

2009 Board decision on the basis of clear and unmistakable error (CUE). See 38 U.S.C. § 7111(a); 38 C.F.R. §§ 

20.1403(a), (c). On June 29, 2011, the Board partly denied and partly dismissed Mr. Strickland’s CUE challenges. 

The denial concerned the Board’s denial of a rating 

higher than 10 percent for Mr. Strickland’s sinusitis and 

allergic rhinitis. The Board explained that neither the 

“level of detail recorded in service records” nor an alleged

failure by the VA to obtain additional records, which were 

the bases for Mr. Strickland’s claim, could be CUE. 

Further, the evidence suggested that Mr. Strickland’s 

medical history was thoroughly reviewed by the VA and 

that the 10 percent disability rating was properly based 

on the severity of his disability at the relevant time. The 

Board also explained that a finding of CUE could not rest 

on mere disagreement with how the facts of his condi-
6 STRICKLAND v. SHINSEKI

tion—number and severity of sinus infections—were 

weighed or evaluated. See 38 C.F.R. § 20.1403(d). 

The dismissal concerned certain other claims. The 

Board found that Mr. Strickland “failed to adequately set 

forth the alleged CUE . . . in the Board decision” with 

regard to his claims for bilateral hearing loss, tendonitis 

of the legs, and a dental disorder. On the basis of that 

pleading deficiency, it dismissed without prejudice his 

motion for revision as to those claims. See 38 C.F.R. 

§ 20.1404(b). 

Mr. Strickland appealed the 2011 Board denial of the 

CUE motion to the Court of Appeals for Veterans Claims, 

which affirmed the decision on January 31, 2013. Strickland, No. 11-2680, 2013 WL 388584. The Veterans Court 

found no reversible error in either of the Board’s two 

rulings on Mr. Strickland’s allegation of CUE in the 

March 2009 Board decision. 

Regarding the rating level, the Veterans Court reasoned that the “March 2009 Board decision properly 

considered the history of the appellant’s sinusitis when it 

adjudicated his June 2002 rating increase claim for sinusitis.” Id. at *2. The Veterans Court explained that the

Board properly focused on the severity of Mr. Strickland’s 

disability during the relevant period (July 2002 until

March 2009), whereas Mr. Strickland’s CUE motion had 

focused on the episodes of sinusitis that he experienced 

many years earlier, during his military service. Id. To 

the extent that Mr. Strickland discussed the severity of 

his disability during the relevant period (2002-2009), the 

Veterans Court agreed with the Board that his disagreement was with how the Board weighed the evidence. Id.

at *3. The Veterans Court also disagreed with Mr. Strickland’s allegations that one of his VA ear, nose, and throat 

examinations was inadequate because it “was not based 

on a thorough review of his medical history. . . .” Id. The 
STRICKLAND v. SHINSEKI 7

Veterans Court explained that the Board had properly 

found the medical examination to have included an adequate discussion of Mr. Strickland’s medical history, and 

the Veterans Court further agreed with the Board that, 

because the report was not the only evidence in the record 

used to deny Mr. Strickland’s claim, he “ha[d] not established that the outcome of the March 2009 Board decision 

would have been manifestly different . . . .” Id. 

The Veterans Court also affirmed the Board’s dismissal without prejudice of Mr. Strickland’s CUE challenge 

regarding his claims for disability benefits for bilateral 

hearing loss, tendonitis of the legs, and a dental disorder. 

Strickland v. Shinseki, No. 11-2680, 2013 WL 388584, at 

*4. The Veterans Court agreed with the Board that, 

despite providing a detailed explanation of why he believed he was entitled to disability compensation benefits 

for these ailments, Mr. Strickland had failed to plead with 

specificity clear and unmistakable errors in the March 

2009 Board decision. Id. The Veterans Court noted, 

however, that Mr. Strickland could re-file his CUE assertions with the Board in a manner that complied with 38 

C.F.R. § 20.1404(b). Id. The Veterans Court dismissed

additional arguments made by Mr. Strickland pertaining 

to other disabilities for lack of jurisdiction because they 

were not the subject of the Board’s 2011 decision. Id. at 

*5. Mr. Strickland appeals. 

DISCUSSION

This court’s jurisdiction to review decisions of the

Veterans Court is limited by statute. See 38 U.S.C.

§ 7292. We have jurisdiction to decide appeals that

challenge the validity of a decision of the Veterans Court 

with respect to a rule of law or the validity of any constitutional provision, statute, or regulation, including any

interpretation of such a source of law. Id. § 7292(d)(1). 

We do not have jurisdiction to review a challenge to a

factual determination made by the Veterans Court or a
8 STRICKLAND v. SHINSEKI

challenge to a law or regulation as applied to the facts of a

particular case unless the challenge presents a constitutional issue. Id. § 7292(d)(2). 

Some of Mr. Strickland’s arguments relate to issues 

that were before the Veterans Court on appeal—

specifically, the proper rating for Mr. Strickland’s sinusitis and allergic rhinitis, and the Board’s denial of Mr. 

Strickland’s request to reopen his claims for hearing loss, 

tendonitis of the legs, and a dental disorder. Brief for 

Appellant at 5-6, 12-14. For example, Mr. Strickland 

alleges that a flight surgeon documented more than six 

non-incapacitating episodes of sinusitis/allergic rhinitis 

within one year in 1998 and that this should have been 

sufficient for the VA to assign him a higher disability 

rating. Id. at 3. He goes on to document the findings of 

medical examinations and recommendations made by 

providers in support of his request for a higher disability 

rating for his sinusitis and allergic rhinitis, and maintains his challenge to the adequacy of the medical evidence. Id. at 3-4, Questions 4-5. Mr. Strickland also asks 

this court to consider “musculo-skeletal conditions . . . 

with injury of both feet and ankles” as a result of an 

injury sustained in 1989 as well as details of his dental 

history, evidence which he alleges prove certain disabilities and entitle him to compensation. Id. at 5-6, 12-14. 

The Veterans Court found no error with how the Board 

evaluated and weighed the evidence relating to the proper 

disability rating for Mr. Strickland’s sinusitis and allergic 

rhinitis. Strickland, No. 11-2680, 2013 WL 388584, at *2-

3. The Veterans Court also determined that the Board’s 

dismissal of Mr. Strickland’s CUE claims relating to his 

request to reopen his claims for hearing loss, tendonitis of 

the legs, and a dental disorder were not improper given 

that Mr. Strickland’s argument was that the weight of the 

evidence entitled him to disability compensation benefits, 

and was not directed to any specific errors made by the 
STRICKLAND v. SHINSEKI 9

Board that would have materially affected the outcome of 

his case. See id. at 4.

These contentions are outside our jurisdiction. Under 

38 U.S.C. § 7292(d)(2), we may not review factual findings 

or the application of the law to the facts where, as here, 

no constitutional claims are present. Mr. Strickland does 

not raise any constitutional issue or identify a statute or 

regulation that the Veterans Court misinterpreted.2 He

does extensively cite to the regulations setting forth the 

diagnoses and disability ratings to which he believes he is 

entitled, but he makes no allegations that the VA or 

Board misinterpreted those regulations. See Brief for 

Appellant at 3, 14-17. Nor does Mr. Strickland identify 

any error in the Veterans Court’s statements of the law 

more generally, such as the law concerning the adequacy 

of the Board’s analysis. Rather, he argues that the Board 

and VA did not properly evaluate and weigh the relevant 

medical evidence, and relied on inadequate evidence, and 

thereby failed to properly diagnose and rate his disabilities. Even if this claim of error applied not just to the 

Board and the VA but to the Veterans Court, it would be 

outside our jurisdiction, because it concerns only the 

weighing of evidence and not an error in a rule of law. 

2 In response to question 5 in his brief, Mr. Strickland argues that “[b]enefit of the doubt consideration was 

not given as to why my military and veterans’ medical 

records did not contain sufficient details . . . .” This court 

has held, however, that a claim of “CUE does not create a 

‘balance of the evidence’ situation to which the ‘benefit of 

the doubt’ rule could apply.” Disabled American Veterans 

v. Gober, 234 F.3d 682, 697 (Fed. Cir. 2000); see Yates v. 

West, 213 F.3d 1372, 1375 (Fed. Cir. 2000) (“[T]he ‘benefit 

of the doubt’ rule of 38 U.S.C. § 5107(b) does not apply to 

a motion for revision on the ground of clear and unmistakable error.”).

 
10 STRICKLAND v. SHINSEKI

See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 

2010). 

Mr. Strickland alleges several other instances where 

the Board and VA failed to consider medical evidence

related to conditions that were the subject of the earlier 

2009 Board decision (but not the 2011 Board decision), or 

were not before the Board in 2009. See Brief for Appellant at 2 (chorioretinal scar and dry eye syndrome); id. at 

3 (service-connected uvula reduction surgery”); id. at 4-5 

(degenerative disc disease); id. at 7-8 (multiple fore foot 

difficulties and shin splints); id. at 9 (hearing loss and 

tinnitus); id. at 10-11 (multiple skin disorders). These

arguments were not before the Veterans Court, however,

and were not the subject of its decision on appeal here. 

We therefore do not consider these arguments. 

Finally, Mr. Strickland appears to raise several new 

claims, including claims for “adverse reactions to the 

Gamma Globulin vaccine (Hepatitis-B Vaccine),” “Complex Regional Pain Syndrome or Regional Pain Syndrome,” probable exposure to depleted uranium while in 

service, physical dysfunction involving sexual performance, and moderate post-traumatic stress disorder. See 

Brief for Appellant at 2, 5-6, 8-9. Mr. Strickland also asks 

that this court reopen his claim for “repeated throat and 

tonsil infections.” Id. at 2. This court does not have 

jurisdiction to adjudicate claims in the first instance or to 

determine whether Mr. Strickland has offered sufficient 

new and material evidence to reopen a prior claim. 

Accordingly, we have no jurisdiction over this appeal, 

which must be dismissed.

No Costs. 

DISMISSED