NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LOUIS CLAY,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2014-7118

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 13-1678, Judge Robert N. Davis.

______________________ 

Decided: July 13, 2015

______________________ 

LOUIS CLAY, Parchman, MS, pro se.

JOSHUA A. MANDLEBAUM, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent-appellee. Also 

represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN,

JR., MARTIN F. HOCKEY, JR.; Y. KEN LEE, LARA K.

EILHARDT, Office of General Counsel, United States 

Department of Veterans Affairs, Washington, DC.

___________________ 
2 CLAY v. MCDONALD

Before LOURIE, SCHALL, and LINN, Circuit Judges.

PER CURIAM. 

Louis Clay (“Clay”) appeals from the decision of the 

United States Court of Appeals for Veterans Claims (“the 

Veterans Court”) that affirmed the Board of Veterans’ 

Appeals (“the Board”) decision finding no clear and unmistakable error (“CUE”) in two earlier Board decisions 

that denied disability benefits for stomach, back, and neck 

injuries. Clay v. Gibson, No. 13-1678, 2014 WL 2608458

(Vet. App. June 12, 2014) (“Opinion”). For the following 

reasons, we affirm in part and dismiss in part. 

BACKGROUND

Clay served on active duty in the U.S. Air Force from 

January to March 1971. In February 1981, Clay filed a 

claim for service connection for back and neck injuries

and for a stomach condition. The Department of Veterans 

Affairs Regional Office (“RO”) denied service connection 

for those conditions, finding that Clay’s service medical 

records lacked any “complaints, treatment or diagnosis for 

the conditions at issue during service.” Appellee’s Supplemental Appendix (“App.”) 19 (noting “[h]ernia, back, 

neck injury, stomach disorder not shown by the evidence 

of record”). Clay then appealed from that decision to the 

Board. The Board denied Clay’s claim for service connection (“the 1982 decision”), similarly finding no basis in 

Clay’s service medical records. Id. at 20–22. 

In June 1994, Clay sought to reopen his claim for 

service connection for a back injury. Id. at 29. The RO 

denied that request. Clay appealed to the Board, contending that he had “submitted new and material evidence 

which warrants reopening” of the claim. Id. at 24. The 

Board denied the request (“the 1998 decision”), finding 

that (1) the service medical and prior adjudication records 

were before the Board at the time of the 1982 decision and 

were thus “not new,” id. at 30; (2) the 1981 X-ray report
CLAY v. MCDONALD 3

failed to discuss the “etiology of [Clay’s] back disorder, or 

the incurrence or aggravation of this condition during his 

period of service” and was thus “not material,” id. at 31; 

(3) the 1994 opinion of Dr. McArthur was “not material” 

because it was “mere speculation as to the occurrence of 

an incident, . . . which had already been rejected by the 

Board,” id. at 32; (4) the 1995 social security teletype was 

immaterial because it gave “no indication” that Clay 

incurred or aggravated a back disorder during active 

duty, id. at 33; and (5) Clay’s additional statements were

“cumulative of the evidence previously considered,” id. 

In December 2010, Clay asked the Board to revise its 

1982 and 1998 decisions, alleging CUE because the Board 

proceeded without Clay’s service medical records, thereby 

breaching its duty to assist, and failed to address several 

issues. The Board found no CUE, and thus declined to 

revise its earlier decisions (“the 2013 decision”). Notably, 

the Board held that (1) even if the Board proceeded without Clay’s service medical records, which it did not, any 

failure to help obtain those records would not result in

CUE; and (2) the remaining issues presented were immaterial, contradictory, or based on evidence already available to, and dismissed by, the Board. Id. at 7–14. 

Clay appealed to the Veterans Court, and the Veterans Court affirmed the 2013 decision. Opinion at *2. The 

court first held that Clay’s duty-to-assist argument cannot 

form the basis for CUE. Id. at *1. According to the court, 

Clay had to allege some error based on the law and facts 

as they were known at the time of the previous decisions 

to adequately claim CUE. Id. (citing Cook v. Principi, 318 

F.3d 1334 (Fed. Cir. 2002) (en banc)). The court further

held that it lacked jurisdiction to hear Clay’s remaining 

arguments because they were never before the Board. Id.

Clay then appealed to this court seeking to invoke our 

jurisdiction under 38 U.S.C. § 7292. 
4 CLAY v. MCDONALD

DISCUSSION

Our review of Veterans Court decisions is limited. We 

have jurisdiction to review a Veterans Court decision “on 

a rule of law or of any statute or regulation . . . or any 

interpretation thereof.” 38 U.S.C. § 7292(a). However, 

absent a constitutional issue, we lack jurisdiction to 

review factual findings or the application of law or regulation to the facts of a case. Id. § 7292(d)(2). To the extent 

we have jurisdiction, we set aside a Veterans Court decision only when it is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” Id.

§ 7292(d)(1)(A). 

Whether the Veterans Court applied the correct legal 

standard falls within this court’s limited jurisdiction over 

veterans’ appeals. Lamour v. Peake, 544 F.3d 1317, 1321 

(Fed. Cir. 2008) (“Even where factual disputes may remain, we have authority to decide whether the Veterans 

Court applied the correct legal standard.”). Here, Clay 

argues that the Veterans Court did not apply the statutes 

and regulations “extant at the time.” Appellant’s Informal Br. 1. Clay seems to suggest that 38 C.F.R. § 3.303(a) 

(1964) required the Board to develop the record before 

rendering a decision. We disagree. 

The express language of 38 C.F.R. § 3.303(a) recites: 

“Determinations as to service connection will be based on 

review of the entire evidence of record.” There is no 

requirement, implicit or otherwise, for the Board to develop the record before rendering a decision; it simply mandates full consideration of the evidence presented. That is 

the standard the Veterans Court applied here, and we do 

not find it in error. 

The Veterans Court similarly applied the correct legal 

standard for adjudicating a CUE claim. As recited in 

Cook, “in order to constitute CUE, the alleged error must 

have been outcome determinative, . . . and [it] must have 

been based upon the evidence of record at the time of the 
CLAY v. MCDONALD 5

original decision.” 318 F.3d at 1344. Moreover, a breach 

of the duty to assist cannot form the basis for a CUE 

claim. Id. Just because Clay disagrees with the law as it 

currently stands does not mean that the Veterans Court 

applied the wrong standard. 

The remainder of Clay’s arguments fall outside of our 

limited jurisdiction. Clay argues that the Board failed to 

consider record evidence. Yet the Board made an express 

factual finding to the contrary. App. at 13 (“Even if the 

Board were compelled to reach the merits of these general 

allegations, it notes that the Veteran’s complete service 

treatment records were available and considered by the 

Board in connection with both decisions.”). That finding 

is outside of our jurisdiction. 38 U.S.C. § 7292(d)(2). Clay 

further argues that the Board breached its duty to assist, 

and therefore its 1982 and 1998 decisions contain CUE. 

That argument has been repeatedly rejected by the Board 

and Veterans Court after invoking Cook, and the application of that standard to the facts of Clay’s case is a matter 

that likewise falls outside of our jurisdiction. Id.; Conway 

v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004) (“[W]hile 

we can review questions of law, we cannot review applications of law to fact.”). 

Clay additionally argues that “[b]y the Court applying 

new law to the instant case, and not applying the law 

extant at the time, [the Court] violated Clay’s due process 

and equal protection rights.” Appellant’s Informal Br. 1. 

Without a legitimate explanation providing an adequate 

basis for that claim, it is constitutional in name only and 

thus outside of our jurisdiction. Helfer v. West, 174 F.3d 

1332, 1335 (Fed. Cir. 1999) (Characterizing an appeal as 

“constitutional in nature does not confer upon us jurisdiction that we otherwise lack.”). 

We have considered the remaining arguments presented in Clay’s informal appeal brief, but we do not find 
6 CLAY v. MCDONALD

them persuasive. For the foregoing reasons, the appeal is 

affirmed in part and dismissed in part. 

AFFIRMED IN PART AND DISMISSED IN PART

COSTS

No costs.