N OTE : This disposition is nonprecedential. 

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

______________________
ROBERT L. STRICKLAND , JR., Claimant

- Appellant,

v.

ERIC K. SHINSEKI, S ecretary 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

______________________

R OBERT L. S TRICKLAND , J R

. , of Sumter, South Carol ina, pro se.

A LEXANDER V. S VERDLOV , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent

appellee. With him on the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Director, and M ARTIN F. H OCKEY , J R

. , Assistant Director. Of counsel on the brief were M ICHAEL J. T IMINSKI , Deputy Assistant General Counsel

, and J OSHUA P. M AYER , Atto r-STRICKLAND v. SHINSEKI 2

ney, United States Department of Veterans Affairs, of Washington, DC.

______________________

Before N EWMAN , C LEVENGER , and T ARANTO , Circuit Judges.

P ER C URIAM

. In 2011, the Board of Veterans ’ Appeals partly denied and partly dismissed Robert L. Strickland ’s motion a sser t ing that the Board had earlier committed clear and unmistakable error regarding certain of Mr. Strickland’s claims for disability benefits

. The Court of Appeals fo r 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 Vete rans Court, we dismiss Mr. Strickland’s appeal

.

B ACKGROUND Mr. Strickland served on active duty in the United States Air F orce 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 w as connected to his military servi ce

. In November 2000, a Regional Office of t he United States Department of Veterans Affairs (VA) found a service connection for Mr. Strickland’s mild eczema, sinusitis

, allergic rhinitis, a nd mild forefoot difficulties. The Regional Office also found th at his e czema and for efoot difficulties were compensable under the VA’s rating system
, and it classified each condition as 10 percent disabling

. The Regional Office determined, however, thatSTRICKLAND 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, t he Regional Office denied Mr. Strickland ’ s claims of service connection for vision impairment, bila teral hear ing loss, low b ack pain

, and tendonitis. Mr. Strickla nd 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 ( underl ying his sinusitis and rhinitis ) had become more severe since 2000 and that he now required additional medic ation

. In his statement, Mr. Strickland also requested reopening of his claims for bilateral hearing loss, te ndonitis of the ankles

, tendonitis of the legs, and a dental disorder. In January 2003, b ased on this statement and the subsequent VA medical examination , the Regional Office granted Mr. Strickland a 10 percent disability rating for his s inusitis and allergic rhinitis. But t he Regional Office determined that there was no new and material evidence to justify reopen ing his disability compensation claims for bilateral hearing loss, tendonitis of the legs , tendonitis of the ankles, and a dent al cond ition.

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, a fter a n initial hearing a nd remand, the Board issued its decision

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

Strickland’s July 2002 statement , including two VA

m edical examinations, a computed

- tomography ex amin ation, 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 alle rgic rhinitis under 38 C.F

. R. § 4.97

. The Board also found that Mr. Strickland had not identified any new and mat erial 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 dis ability, i.e. , evidence not previously submitted to the VA that “relates to an unestablished fact necessary to su bstantiate the claim.” 38 U.S .C. § 5108; 38 C.F.R. § 3.156.

The Board did , however, grant Mr. Strickland’s r equest to reo pen 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. Stricklan d su ffered 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. Stric kland’s current back condition was related to his back injury during service. T he Board also considered an August 2008 clinical opinion

, which established that Mr. Strickland was treated for a chronic back disorder while

1 T he 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 stat e ments as seeming to raise a claim for VA dental benefits based on in

- service tr eatment of his teeth

, the Board referred that potential claim to the Regional Office.STRICKLAND v. SHINSEKI 5

in s ervice and that the disorder had continued and was still being treated. The Board concluded that the re was sufficient new and material evidence of a lower- back disorder that was related to an in

- ser vice 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, t he 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 unmistak able error ( CUE ). See 38 U.S.C. § 7111(a ); 38 C.F.R. § § 20.1403 (a), (c). On June 29, 2011, the Bo ard partly denied and partly dismissed Mr. Strickland’s CUE challen ges.

The denial concerned the Board’s denial of a rating higher than 10 percent for Mr. Strickland’s sinusitis and allergic rhinitis

. T he Board explained that neither th e “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 cond i-STRICKLAND v. SHINSEKI 6

tion— number a nd 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

reg ard 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 o n January 31, 2013. Stric kland , 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 re asoned that the “March 2009 Board decision properly considered the history of the appellant’s sinusitis when it adjudi cated his June 2002 rating in crease 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 e xperienced many years earlier, during his military service. Id. To the extent that Mr. Strickland discussed the severity of his disability during the relevant period (2 002

- 2009) , t he Veterans Court agreed with the Board that his disagre ement was with how the Board weighed the evi dence

. Id. at *3. The Veterans Court also disagreed with Mr. Stric kland’s allegations that one of his VA ear, nose, and throat examinations wa s inadequate because it “was not based on a thorough review of his medical history.

. . . ” Id

. TheSTRICKLAND v. SHINSEKI 7

Veterans Court explained that the Board had properly found the medical examination to have in cluded an ad equate discussion of Mr. Strickland’s medical hist ory , 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 esta blished that the outcome of the March 2009 Board decision would have been manifestly different

. . . .” Id

.
The Veterans Court also affirmed the Board’s dismi ssal without prejudice of Mr. Strickland’s CUE challenge regarding his claims for disability benef its for bilateral hearing loss, tendonitis of the legs , and a dental dis order

. Strickland v. Shinseki , No. 11

- 2680, 2013 WL 388584 , at *4

. The Veter ans Court agreed with the Board that

, despite providing a detailed explanation of why he b elieved he was entitled to disability compensation benefits for these ailments

, Mr. Stri ckland 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 asse rtions with the Board in a man ner 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 no t the subject of the Board ’ s 2011 decision

. Id . at *5

. Mr. Strickland appeals.

D ISCUSSION 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 t o a rule of law or the validity of any const itutional 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 aSTRICKLAND v. SHINSEKI 8

challenge to a law or regulation as applied to the facts of a particular case unless the challenge presents a constit utional issue. Id. § 7292(d)(2).

Some of Mr. Strickland’s arguments relate to issues that were before the Veterans Co urt on appeal

— specifically, the proper rating for Mr. Strickland’s sinus itis 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 Appel lan t at 5

- 6, 12

- 14. For example, Mr. Strickland alleges that a flight surgeon documented more than six

non

- incapacitating episodes of sinus itis/alle r gic rhinitis within one year in 1998 and that this should have been sufficient for the VA to assign him a hig her 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 mai ntains his c halle nge to the adequacy of the medical ev idence

. Id. at 3 -4 , Questions 4 -5

. Mr. Strickland also asks this court to consider “mus c ulo

- skeletal conditions . . . with injury of both feet and ankles” as a result of an injury sustained in 1989 a s well as details of his dental history , evidence which he alleges prove certain disabil ities 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 disabi lity rating for Mr. Strickland’s sinus itis and alle r gic 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 mad e by theSTRICKLAND v. SHINSEKI 9

Board that would have materially affected the outcome of his case. See i d. at 4.

These contentions are outside our jurisdiction. U nder 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 identif y a statute or regulation that the Veterans Court misinterpreted. 2 He does extensively cite to the regulations setting forth the diagn oses 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 st atements of the law more generally, such as the law concerning the adequacy of the Board’s analysis. Rather, he argu es 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 disabil ities . 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. Stric kland argues that “[b]enefit of the doubt consideration was not given as to why my military and veterans’ medical

rec ords 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 unmi stakable error.”).STRICKLAND v. SHINSEKI 10

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 B oard decision (but not the 2011 Board decision )

, or

were not before the Board in 2009

. See Brief for Appe llant 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 (m ultiple fore foot difficulties and shin splints); id. at 9 (hearing loss and tinnitus) ; id. at 10

- 11 (multiple skin disorders). T hese arguments were not before the Veterans Court , however, and were not the subject of its decision on appeal he re

. We therefore do not consider these arguments.

Finally, Mr. Strickland appears to raise s everal new claims, including claims for “adverse reactions to the Gamma Globulin vaccine (Hepatitis

- B Vaccine) ,” “Co mplex Regional Pain Syndrome or Regional Pain Sy ndrome,” probable exposure to depleted uranium while in service, physical dysfunction involving sexual perfo rmance , and moderate post

- traumatic stress disorder. See Brief for Appellant at 2

, 5- 6, 8-9

. Mr. Strickland also asks that this court reopen hi s 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 clai m. Accordingly, we have no jurisdiction over this appeal, which must be dismissed.

No Costs

.
DISMISSED