Filed: Dec. 14, 2020
Latest Update: Dec. 15, 2020
Case: 20-2062 Document: 18 Page: 1 Filed: 12/14/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARY A. PAREDEZ,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-2062
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5401, Judge Amanda L. Mere-
dith.
______________________
Decided: December 14, 2020
______________________
MARY A. PAREDEZ, San Antonio, TX, pro se.
DAVID MICHAEL KERR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.,
LOREN MISHA PREHEIM; MEGHAN ALPHONSO, BRIAN D.
GRIFFIN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
Case: 20-2062 Document: 18 Page: 2 Filed: 12/14/2020
2 PAREDEZ v. WILKIE
______________________
Before PROST, Chief Judge, LOURIE and HUGHES, Circuit
Judges.
PER CURIAM.
This appeal involves a claim for veterans’ benefits. Ap-
pellant Mary A. Paredez appeals the decision of the United
States Court of Appeals for Veterans Claims dismissing in
part and affirming in part her appeal from the Board of
Veterans’ Appeals decision denying (1) entitlement to an
initial disability rating in excess of 40 percent for fibrom-
yalgia on a schedular or an extraschedular basis; (2) a dis-
ability rating in excess of 50 percent for dysthymic disorder
with anxiety; (3) an effective date earlier than Novem-
ber 27, 2015, for the award of entitlement to disability com-
pensation for fibromyalgia; and (4) a total disability rating
based on individual unemployability (TDIU). Paredez v.
Wilkie, No. 19-5401, 2020 WL 3163606 (Vet. App. June 15,
2020) (Memorandum Decision). For the reasons discussed
below, we dismiss-in-part and affirm-in-part.
I
Ms. Paredez served on active duty in the U.S. Army
from December 1982 to December 1990. Immediately fol-
lowing her discharge from military service, Ms. Paredez
filed a claim for disability compensation for fibromyalgia.
A VA regional office (RO) denied disability compensation
for fibromyalgia in July 1991. That decision was not ap-
pealed and became final.
In April 2012, the RO awarded entitlement to disability
compensation for dysthymic disorder with anxiety and as-
signed a 30 percent disability rating effective from April
2011. In June 2016, Ms. Paredez submitted a statement
from her physician which indicated that Ms. Paredez had
to retire from her job in the postal service because of her
fibromyalgia. VA also received records reflecting a denial
Case: 20-2062 Document: 18 Page: 3 Filed: 12/14/2020
PAREDEZ v. WILKIE 3
of her Social Security disability claim based on fibromyal-
gia and other claimed conditions. Memorandum Decision
at *1–2.
The RO issued a rating decision in July 2016 awarding
entitlement to disability compensation for fibromyalgia
with a 40 percent disability rating and increasing the rat-
ing for dysthymic disorder with anxiety from 30 percent to
50 percent, both effective November 2015. Ms. Paredez ap-
pealed, and the RO denied entitlement to a disability rat-
ing in excess of 50 percent for dysthymic disorder with
anxiety, a disability rating in excess of 40 percent for fi-
bromyalgia, an earlier effective date, service connection for
fibromyalgia, and TDIU. Ms. Paredez appealed that deci-
sion to the Board. On July 16, 2019, the Board also denied
those entitlements. The Board also found that Ms. Paredez
had raised an issue of clear and unmistakable error (CUE)
in prior rating decisions and referred the matter to the
agency for a determination. Id. at *2.
Ms. Paredez appealed to the Veterans Court, which af-
firmed the Board’s decision, including the Board’s denial of
a higher rating for fibromyalgia on an extraschedular basis.
The Veterans Court dismissed the portions of
Ms. Paredez’s appeal concerning the Board’s denial of enti-
tlement to an increased disability rating for fibromyalgia
on a schedular basis and the issue of CUE.
Id. at *1.
Ms. Paredez timely appealed to this court.
II
The scope of this court’s jurisdiction to review decisions
by the Veterans Court is narrow. We may review decisions
by the Veterans Court “on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter)” that the Veterans
Court relied on in making its decision. 38 U.S.C. § 7292(a).
But this court lacks jurisdiction to review “a challenge to a
factual determination” or the application of law to fact un-
less the appeal presents a constitutional issue. 38 U.S.C.
Case: 20-2062 Document: 18 Page: 4 Filed: 12/14/2020
4 PAREDEZ v. WILKIE
§ 7292(d)(2); see also Cook v. Principi, 353 F.3d 937, 939
(Fed. Cir. 2003).
A
Ms. Paredez states in her informal opening brief and
reply brief that her appeal challenges the Veterans Court’s
interpretation of a statute, regulation, or constitutional
provision. Appellant’s Br. 2. 1 However, Ms. Paredez does
not identify which rules of law, statutes, regulations, or
constitutional provisions the Veterans Court relied upon.
And the Veterans Court’s decision she appeals from does
not appear to concern the interpretation of any of the same.
Instead, the Veterans Court reviewed the Board’s factual
determinations concerning the proper effective date and
disability ratings, including entitlement to TDIU and ex-
traschedular evaluations, for clear error and applied estab-
lished law to the particular facts of Ms. Paredez’s case.
Memorandum Decision at *4–7. In so doing, the Veterans
Court did not elaborate on the meaning of any rule of law,
statute, or regulation. We cannot exercise jurisdiction
without such an issue of legal interpretation to review.
Githens v. Shinseki, 676 F.3d 1368, 1372 (Fed. Cir. 2012).
Because Ms. Paredez’s appeal raises only factual issues as
to the Veterans Court’s affirmance of the Board’s denial of
entitlement to a higher rating for fibromyalgia on an ex-
traschedular basis, a higher rating for dysthymic disorder,
an earlier effective date, and TDIU, we dismiss that portion
of her appeal for lack of jurisdiction.
B
Additionally, we liberally construe Ms. Paredez’s infor-
mal briefs to challenge the Veterans Court’s dismissal of
1 Citations to Ms. Paredez’s informal brief and reply
brief (and the pages and documents included therein) re-
flect the pagination applied by this court’s electronic case
files system, Docket Nos. 3 and 10, respectively.
Case: 20-2062 Document: 18 Page: 5 Filed: 12/14/2020
PAREDEZ v. WILKIE 5
the portion of her appeal concerning the Board’s denial of
entitlement to an initial disability rating in excess of
40 percent on a schedular basis. Appellant’s Br. 2–3. In
dismissing that part of her appeal, the Veterans Court did
not cite to or elaborate on the meaning of any legal provi-
sion, but simply applied the well-established jurispruden-
tial rule that issues not raised by an appellant are
considered abandoned. Memorandum Decision at *1.
Ms. Paredez asserts that she could not have abandoned
her appeal of the Board’s denial of entitlement to a higher
rating for fibromyalgia on a schedular basis because the
Veterans Court recited that claim in its summary of the
Board decision being appealed from. Appellant’s Br. 2–3;
Memorandum Decision at *1. However, merely appealing
from a decision does not raise every issue in that decision
on appeal. In order to adequately raise an argument, an
appellant must develop the argument before the Veterans
Court. We have repeatedly affirmed the Veterans Court’s
application of this maxim in dismissing veterans’ appeals
where, as here, even after liberally interpreting an appel-
lant’s informal brief, the Veterans Court can discern no ar-
gument regarding an issue. See e.g., Gaines v. McDonald,
589 Fed. Appx. 993, 995 (Fed. Cir. 2015); Andre v. Prin-
cipi,
301 F.3d 1354, 1362–63 (Fed. Cir. 2002).
Liberally construed, Ms. Paredez’s informal briefs chal-
lenge only the Veterans Court’s application of that princi-
ple to the facts of her case. However, we lack jurisdiction
to review the application of law to facts. 38 U.S.C.
§ 7292(d)(2). We therefore lack jurisdiction to review the
Veterans Court’s determination that Ms. Paredez had
abandoned the issue of entitlement to an increased disabil-
ity rating for fibromyalgia on a schedular basis and we dis-
miss that portion of her appeal.
C
Finally, Ms. Paredez argues that the Veterans Court
erred by concluding it lacked jurisdiction to review her
Case: 20-2062 Document: 18 Page: 6 Filed: 12/14/2020
6 PAREDEZ v. WILKIE
claim of CUE. Appellant’s Br. 3. We have jurisdiction to
review the Veterans Court’s determination that it lacked
jurisdiction over Ms. Paredez’s CUE claim because that
challenge concerns the Veterans Court’s interpretation of
its jurisdictional statute, 38 U.S.C. § 7252(a). Andre,
301 F.3d at 1358.
We find that the Veterans Court properly determined
that it lacked jurisdiction over Ms. Paredez’s CUE claim
because the Board referred that claim to the agency and
the Veterans Court has jurisdiction to “review referred
matters only to the extent that the appellant argues that
remand, rather than referral, was appropriate.” Memoran-
dum Decision at *1. The Board has not yet decided
Ms. Paredez’s CUE claim—instead, that claim has been re-
ferred to the agency for further development. The Veterans
Court’s jurisdiction is limited to reviewing final decisions
of the Board. Howard v. Gober, 220 F.3d 1341, 1344
(Fed. Cir. 2000). If VA ultimately concludes that CUE does
not exist as to the relevant prior rating decisions,
Ms. Paredez may appeal that determination to the Board
at that time. We therefore affirm the Veterans Court’s dis-
missal of Ms. Paredez’s CUE claim for lack of jurisdiction.
III
Because we lack jurisdiction to review the issues raised
by Ms. Paredez in her appeal, we dismiss as to: 1) the Vet-
erans Court’s affirmance of the Board’s denial of entitle-
ment to a higher initial disability rating for fibromyalgia
on an extraschedular basis, a higher disability rating for
dysthymic disorder with anxiety, an earlier effective date
for the award of entitlement to disability compensation for
fibromyalgia, and TDIU; and 2) the Veterans Court’s dis-
missal of her appeal as to the Board’s denial of entitlement
to a higher disability rating for fibromyalgia on a schedular
basis. We affirm the Veterans Court’s dismissal of
Ms. Paredez’s appeal concerning the issue of CUE.
AFFIRMED IN PART, DISMISSED IN PART
Case: 20-2062 Document: 18 Page: 7 Filed: 12/14/2020
PAREDEZ v. WILKIE 7
COSTS
No costs.
