NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

             DARREN L. DEFLANDERS,
                Claimant-Appellant,

                           v.

                 SLOAN D. GIBSON,
        Acting Secretary of Veterans Affairs,
                 Respondent-Appellee.
                ______________________

                      2014-7037
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1182, Judge Mary J. Schoelen.
                ______________________

                 Decided: June 9, 2014
                ______________________

    DARREN L. DEFLANDERS, of Pascagoula, Mississippi,
pro se.

    JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, KIRK T. MANHARDT, Assistant Director. Of
counsel on the brief were Y. KEN LEE, Deputy Assistant
2                                     DEFLANDERS   v. GIBSON



General Counsel, and LARA K. EILHARDT, Attorney, Unit-
ed States Department of Veterans Affairs, of Washington,
DC.
                ______________________

PER CURIAM.
      Darren L. DeFlanders (“DeFlanders”) appeals from
the decisions of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) affirming the deci-
sions of the Board of Veterans’ Appeals (“the Board”):
(i) finding that DeFlanders had not submitted new and
material evidence sufficient to reopen claims for service-
connected disability compensation for a left knee disabil-
ity and spots on the lungs; (ii) denying compensation for
spots on the brain; and (iii) denying a disability rating in
excess of 10% for non-cardiac chest pain. See DeFlanders
v. Shinseki, No. 12-1182, 

(Vet. App.
Oct. 15, 2013), reconsideration denied, 

(Vet. App. Nov. 22, 2013). Because DeFlanders’s argu-
ments challenge only factual findings and an application
of law to fact, we dismiss for lack of jurisdiction.
                       BACKGROUND
    DeFlanders served on active duty in the U.S. Army
from 1989 to 1996. Following his separation from service,
DeFlanders sought disability compensation for at least 28
conditions, including a bilateral knee disability, lung
spots, post-traumatic stress disorder (“PTSD”), and sub-
stance abuse. Resp’t’s App. 83–85. In 2006, following
various challenges to the Board resulting in numerous
remands to the Department of Veterans Affairs (“VA”)
Regional Office (“RO”) and subsequent determinations,
the Board denied service-connected disability compensa-
tion for most of those claims, including the claims for a
knee disability, lung spots, PTSD, and substance abuse.
DeFlanders, 

, at *1. DeFlanders did not
appeal the Board’s 2006 decision and it became final. 

GIBSON                                   3



    DeFlanders then sought to reopen his claims for the
knee disability, lung spots, and PTSD, and raised new
claims requesting compensation for, inter alia, spots on
the brain, bipolar disorder, an evaluation in excess of 10%
disability rating for non-cardiac chest pain, and alcohol
dependence and cannabis and cocaine abuse, the latter
claimed together as substance abuse or “drug addiction.”

notified DeFlanders that his old claims could
not be reopened without new and material evidence and
advised him regarding the information that would be
required to substantiate his new claims. See Resp’t’s App.
28–29. DeFlanders submitted medical records document-
ing treatment for his knees and for a lung condition, in
addition to personal testimony. See 

The RO
subsequently determined that DeFlanders had failed to
submit new and material evidence sufficient to warrant
reopening his claims relating to the knee disability and
lung spots and also denied his claims relating to brain
spots, substance abuse or drug addiction, PTSD, bipolar
disorder, and the higher rating for non-cardiac chest pain.
DeFlanders, 

, at *1–2.
    DeFlanders again appealed to the Board. In 2011, the
Board characterized his claims for PTSD and bipolar
disorder as a single claim for an acquired psychiatric
disability and remanded that claim and several others for
further examination. Resp’t’s App. 24–25, 41–50. The
Board denied DeFlanders’s other claims, including service
connection for brain spots, the request to reopen his
claims for lung spots and knee disability, and the request
to increase his rating for non-cardiac chest pain above
10%. 

DeFlanders, 

, at *2.
The Board explained that DeFlanders’s proffered evidence
was not material because it did not provide a link to his
military service and was redundant and cumulative of
evidence already of record. Resp’t’s App. 32–33. The
Board’s decision did not address the claim for substance
abuse or drug addiction because DeFlanders did not
4                                      DEFLANDERS   v. GIBSON



specifically mention that claim on his appeal form, which
indicated that it had been withdrawn. Resp’t’s App. 21–
22, 51–53, 56; DeFlanders, 

, at *2.
     DeFlanders then appealed to the Veterans Court, spe-
cifically identifying only four issues for the court’s review:
brain spots, lung spots, knee disability, and substance
abuse or drug addiction. DeFlanders, 

,
at *2. First, the Veterans Court held that DeFlanders
had abandoned his claim for an increased disability rating
for non-cardiac chest pain because it was not identified in
his informal brief as an issue for appeal and he did not
make any specific argument challenging the Board’s
determination in that regard. 

Secondly, the
court vacated what it characterized as the Board’s “im-
plicit finding” that DeFlanders had not filed a substantive
appeal on his claim for substance abuse or drug addiction,
concluding that it was unable to review the Board’s rea-
soning for that decision, and remanded that matter for
readjudication consistent with VA regulations. 

Third, the court held that the Board’s denials of DeFlan-
ders’ requests to reopen his claims for a knee disability
and lung spots were not clearly erroneous and were
supported by adequate reasons and bases. 

Finally, the court affirmed the Board’s denial of service-
connected disability compensation for brain spots, con-
cluding that the Board had considered the relevant evi-
dence and had adequately explained its determination.

     In a subsequent order, the Veterans Court denied
DeFlanders’s motion for reconsideration on the bases that
the court’s initial decision (i) did not overlook or misun-
derstand a fact or point of law prejudicial to the outcome,
(ii) did not conflict with a precedential decision of the
court, and (iii) did not raise an issue warranting a prece-
dential decision. DeFlanders, 

, at *1.
The Veterans Court thus ordered that its initial decision
would remain the decision of the court. 

GIBSON                                     5



   DeFlanders then appealed to this court seeking to in-
voke our jurisdiction under 38 U.S.C. § 7292.
                         DISCUSSION
    The scope of our review in an appeal from a Veterans
Court decision is limited. 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 stat-
ute or regulation that was relied upon by the Veterans
Court in making the decision. 38 U.S.C. § 7292(a). Ex-
cept with respect to constitutional issues, we “may not
review (A) a challenge to a factual determination, or (B) a
challenge to a law or regulation as applied to the facts of a
particular case.” 

7292(d)(2).
    DeFlanders argues here that the Veterans Court did
not correctly consider new evidence of knee surgery and
an error relating to that evidence. Appellant’s Br. 1. He
also asserts that he did not abandon his claim for a higher
rating for non-cardiac chest pain, that the court’s decision
to remand the substance abuse or drug addiction claim
was “not fairly done,” and that the RO and the Board did
not provide him with adequate assistance. 

    However, DeFlanders’s arguments challenge only the
Veterans Court’s application of law to the facts of his case,
which are matters outside of our jurisdiction. See Bastien
v. Shinseki, 

, 1306 (Fed. Cir. 2010) (“The
evaluation and weighing of evidence . . . are factual de-
terminations committed to the discretion of the fact-
finder. We lack jurisdiction to review those determina-
tions.”). The Veterans Court decision did not involve any
questions regarding the validity or interpretation of a
statute or regulation, nor did the court decide a constitu-
tional issue. Rather, the Veterans Court merely applied
the governing law to the facts of DeFlanders’s case. The
court applied established law to the facts to determine
that the Board’s decision that DeFlanders had not pre-
sented new and material evidence to warrant reopening of
6                                    DEFLANDERS   v. GIBSON



his claims for a knee disability and lung spots was not
clearly erroneous. DeFlanders, 

, at *6–9
(citing 38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R.
§ 3.156(a); United States vs. U.S. Gypsum Co., 

, 395 (1948); Jandreau v. Nicholson, 

,
1377 (Fed. Cir. 2007)). Likewise, the court applied estab-
lished law to the facts in affirming the Board’s denial of
service-connection for brain spots. 

(citing Da-
vidson v. Shinseki, 

, 1316 (Fed. Cir. 2009)).
    The court applied its own procedural rules to conclude
that DeFlanders had abandoned the issue of non-cardiac
chest pain. 

But because the Veterans Court did
not interpret a statute or regulation in the application of
its procedural rules, we also cannot review that decision.
See 38 U.S.C. § 7292(a), (d)(2); Newhouse v. Nicholson,

, 1302 (Fed. Cir. 2007); Ferguson v. Principi,

, 1074–75 (Fed. Cir. 2001). We also general-
ly do not review the Veterans Court’s remand orders
because they are not final decisions and the court here did
not make any legal decisions regarding DeFlanders’
substance abuse or drug addiction claim other than to
remand it. See Ebel v. Shinseki, 

, 1340
(Fed. Cir. 2012); Williams v. Principi, 

, 1364
(Fed. Cir. 2002).
     We likewise do not possess jurisdiction to entertain
arguments that the VA did not fulfill its duty to assist
under the Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000) (“VCAA”). Although
DeFlanders does not explain what either the RO or the
Board failed to do in assisting him, whether the VA has
fulfilled its duty to assist under the VCAA is typically a
question of fact. See Garrison v. Nicholson, 

, 1370 (Fed. Cir. 2007) (regarding notice require-
ments under 38 U.S.C. § 5103(a)); DeLaRosa v. Peake, 

, 1322 (Fed. Cir. 2008) (regarding duty to assist
under 38 U.S.C. § 5103A).
DEFLANDERS   v. GIBSON                                   7



    We have considered the additional arguments pre-
sented in DeFlanders’ informal appeal brief but do not
find them persuasive. For the foregoing reasons, the
appeal is dismissed for lack of jurisdiction over the argu-
ments raised by DeFlanders.
                         DISMISSED
                           COSTS
   No costs.
                               FOR THE COURT


                                /s/ Daniel E. O’Toole
                               Daniel E. O’Toole
                               Clerk of Court