N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

GEIRY L. MATHIS,

Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2016

- 1226

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 14

- 314, Judge Mary J. Schoelen.

______________________ Decided: April 1 2, 2016

______________________

G EIRY L. M ATHIS , Home, PA, pro se.

J ESSICA C OLE , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for respondent

- appellee. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., M ARTIN F. H OCKEY J R .; B RIAN D. G RIFFIN , M EGHAN A LPHONSO , Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

______________________MATHIS V

. MCDONALD 2

Before P ROST , Chief Judge

, L OURIE and T ARANTO , Circuit Judges.

P ER C URIAM

. Geiry L. Mathis (“Mathis”) appeals from a decision of the United States Court of Appeals for Veterans Claims (the “Veterans Court”) remanding certain of his claims to the Board of Veterans’ Appeals (the “Board”) and affir ming the Board’s rejection of other claims. See Mathis v. McDonald , No. 14

- 0314, 2015 WL 5255331 (Vet. App. Sept. 10, 2015) ; see also Resp’t ’s App

. (“ R.A. ”) 1– 23

. For the reasons that follow, we affirm in part and dismiss in part

. B ACKGROUND Mathis served on active duty in the U.S. Army from June 1968 to September 1969, and suffered a gunshot wound to the left side of his head during combat in the Republic of Vietnam. Mathis’s attempts to receive dis abi l ity benefits for that injury are chroni cled in his three prior appeals to this Court

, s ee Mathis v. McDonald , 625 F. App’x 539 (Fed. Cir. 2015); Mathis v. Shinseki , 484 F. App’x 565 (Fed. Cir. 2012); Mathis v. Shinseki

, 494 F. App’x 78 (Fed. Cir. 2012) ; accordingly, we only detail the history r elat ing to the present appeal

. In May 1989, the Board issued a decision denying Mathis a disability rating in excess of 10% for tinnitus with headaches

. R.A. 6

. Mathis moved to revise that rating in March 2007 on the basis of clear and unmista kable er ror (“CUE”). R.A. 7

. Mathis alleged that the Board should have rated his tinnitus and headaches separately, that the Board should also have given him a rating for tinnitus in each ear , and that the VA committed malfe asance in denying his claims

. R.A. 7.
The Board denied those claims in 2007, but the Vete rans Court vacated and remanded the Board’s decisionMATHIS V

. MCDONALD 3

because the Board did not separately address each alleg ation of CUE, and the c ourt did not agree with the Board’s conclusion that Mathis simply dispute d the manner in which the Board weighed the evidence. R.A. 7. In 2010, the Board again dismissed Mathis’s CUE claims as di sputing the Board’s weighing of the evidence. R.A. 8. The Veterans Court again vacated the Board’s dismissal of Mathis’s CUE claim s and remanded , again determining that the Board had not adequately explained why Mathis’s claims amounted to no more than a dispute over the weighing of evidence. R.A. 9

. Mathis also sought benefits for post

- traumatic stress disorder (“PTSD”) in a par allel line of cases

. In November 1987

, and again in May 1989 , the Board denied service connection for PTSD, concluding that the necessary symptoms were not shown by the medical evidence. R.A. 6

. In July 1995, the regional office (“RO”) reopened Mathis’s claim and awarded service connection for PTSD, with a 100% disability rating effective January 31, 1994, later made effective as of January 20, 1991. R.A. 6–7

. Mathis has since alleged that he made claims for service connection for P T SD in 198 3 and 198 5 , and that those claims remain unadjudicated. R.A. 7–8

. In December 2013, the two lines of cases converged in a Board decision finding no CUE in the two 1989 dec ision s. Specifically, the Board found that there was no CUE in den ying a rating in excess of 10% for tinnitus with headaches

, not assign ing two separate rating s for bilateral tinnitus, not assign ing a separate rating for headaches, and den ying earlier service connection for PTSD. R.A. 9.

T he Veterans Court reversed the Board’s findin g that there was no CUE in not giving Mathis a separate rating for headaches, but remanded to the Board for the dete rmination whether correct application of the governing regulations would have changed the outcome

. R.A. 13.MATHIS V

. MCDONALD 4

The Veterans Court also determ ined that the Board failed to address Mathis’s allegations of malfeasance, despite those allegations having been “twice remanded .

. . for the Board to adjudicate.” R.A. 14

– 15. T he refore, the Vete rans Court again remanded the claim for the Board’s consid eration. R.A. 15. The Veterans Court affirmed, however, the Board’s determination s that the 1989 go verning regulations did not provide for a separate rating for tinnitus for each ear, that Mathis was awarded the maximum disability rating for tinnitus, that there was no CUE in the Board’s 1989 denial of service connection for PTSD, and that the 1983 and 1985 PTSD claims were not unadjudicated because they were subsumed in Mathis’s adjudicated 1987 claim. R.A. 15

– 21.
Mathis timely appealed

, seeking to in voke our juri sdiction under 38 U.S.C. § 7292

. D ISCUSSION

Our jurisdiction to review decisions of the Veterans Court is limited by statute

. We may review a Veterans Court decision with respect to the validity of a decision on a rule of law or the validity or interpretation of any sta tute or regulation that was relied upon by the Veterans Court in making its decision. Id. § 7292(a)

. Unless a constitutional issue is presented, we have no jurisdicti on to review questions of fact or the applica tion of a law or regulation to a particular set of facts

. Id. § 7292(d)(2).
We begin with the issue decided by the Veterans Court adverse to Mathis and involving the interpretation of a regula tion . The Veterans Court determined that the regulations in 1989 provided a maximum of 10% disability rating for tinnitus, and that there was no legal basis on which to award separate ratings for tinnitus in each ear. R.A. 15

. W e see no error in the interpretation made by the Veterans Court. Indeed, we have already upheld the Secretary’s interpretation of the regulations as providing a single rating for tinnitus, and a maximum disabilityMATHIS V

. MCDONALD 5

rating of 10%. Smith v. Nicholson , 451 F.3d 1344, 1450

– 51 ( Fed. Cir. 2006 )

. Mathis next argues that the Veterans Court erred in finding that the Board’s denial of his 1987 PTSD claims adjudicated his 1983 and 1985 claims because the 1983 and 1985 claims were different from the 1987 claims. Appellant’s Br. 3. This argument does not challenge the interpretation of a regulation or statute , however, and instead challenges the manner in which the Veterans Court applied established la w to the facts of his 1983, 1985, and 1987 PTSD claims. Accordingly, that issue is beyond our jurisdiction. See 38 U.S.C. § 7292(d)(2). Moreover

, Mathis’s disagreement with the Veteran’s Court’s affirmance of the 1989 denial of service connection for PT SD merely challenge s th e application of law to facts, and similarly is beyond our jurisdiction.
Mathis also argues that the Veterans Court misinte rpreted 38 C.F.R. §§ 3.105(a) , 4.1, 4.2 , and 4.7 , which are respectively directed to the effect of a reversed Board decision, the requirements for a disability rating, the interpretation of examination reports, and the impact of two possible ratings for the same disability

. Review of his allegations, however, reveals that Math is is in fact cha llenging the manner in which the Board or the Veterans Court applied those regulations to the facts of his case. Livingston v. Derwinski , 959 F.2d 224, 225 (Fed. Cir. 1992) (“[T]he mere recitation of a basis for jurisdiction by party or a court[ ] is not controlling; we must look to the true nature of the action.”). Accordingly, those issues are also outside of our jurisdiction. See 38 U.S.C. § 7292(d)(2).
Mathis also appears to be frustrated with the Vete rans Court’s decision to remand his headache and malfe asance claims to the Board for further proceedings, and asks us to instead reverse the Board so that his case does not undergo further proceedings on remand

. Appellant’sMATHIS V

. MCDONALD 6

Br. 7 –8. Mathis’s frustration is understandable, as his cla ims have been remanded to the Board several times before , only to be inadequately addressed. H is malfe asance allegation, for example, is being remanded to the Board for the third time. Nevertheless, t his court only reviews remand orders where (1) there i s a clear and final decision on a legal issue that (a) is separate f rom the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues adversely affect s the party seeking r eview; and (3) there is a substantial risk that a remand would moot the issue. Williams v. Principi , 275 F.3d 1361, 1364 (Fed. Cir. 2002). Mathis has not made the required showing, and so we can not distur b the remand order.
Mathis also raises numerous other arguments neither presented to nor decided by the Veterans Court. For example, Mathis argues that there was CUE in a 1979 rating decision and that other previous PTSD claims are unadjudicated; he als o asks us to order the Secretary to adjudicate a total disability individual unemployability claim. Some or all of these arguments involve claims not presented to the Board in the matters before the Veterans Court, and hence outside that court’s jurisdict ion. See Ledford v. West , 136 F.3d 776, 779 (Fed. Cir. 1998). In any event, we generally do not consider issues neither presented to nor decided by the Veterans Court, Forshey v. Principi , 284 F.3d 1335, 1355

– 58 (Fed. Cir. 2002) (en banc), superseded on other grounds by statute , Veterans Benefits Act of 2002, Pub. L. No. 107

- 330, § 402, 116 Stat. 2820, 2832 , and we see no reason to depart from that practice here.
Finally, Mathis also alleges that his constitutional rights were violated by inadequate med ical exams and by his PTSD claims not being adequately addressed. The Veterans Court found that most of Mathis’s constitutionalMATHIS V

. MCDONALD 7

allegations were “mere assertions of constitutional im pr opriety without legal support.” R.A. 21. The Veterans Court only addr essed Mathis’s argument that his due process rights were violated by the failure to adjudicate the 1983 and 1985 PTSD claims, finding that there was no violation because the claims were addressed in the 1987 decision

. We agree that there was no due proces s violation as to the 1983 and 1985 PTSD claims because they were subsumed in and therefore adjudicated by the Board ’s 1987 decision. Moreover, Mathis’s attempts to characterize his arguments “as constitutional in nature does not confer upon us jurisdicti on that we otherwise lack.” Helfer v. West , 174 F.3d 1332, 1335 (Fed. Cir. 1999).

C ONCLUSION

We have considered Mathis ’s remaining arguments, but find them unpersuasive. For the foregoing reasons, this appeal is affirmed in part and dismissed in part

. AFFIRMED IN PART, DISMISSED IN PART