Case: 21-1830    Document: 19     Page: 1     Filed: 10/05/2021




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                    WILLIE B. CLAY,
                    Claimant-Appellant

                             v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                        2021-1830
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 20-1311, Chief Judge Margaret C.
 Bartley.
                 ______________________

                 Decided: October 5, 2021
                 ______________________

    WILLIE B. CLAY, Starkville, MS, pro se.

     SONIA W. MURPHY, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., LOREN MISHA
 PREHEIM.
                   ______________________
Case: 21-1830    Document: 19      Page: 2    Filed: 10/05/2021




 2                                        CLAY   v. MCDONOUGH



     Before LOURIE, TARANTO, and CHEN, Circuit Judges.
 PER CURIAM.
     Willie Clay appeals from the decision of the Court of
 Appeals for Veterans Claims (“the Veterans Court”) affirm-
 ing a decision of the Board of Veterans’ Appeals (“the
 Board”) deducting previously paid, non-service connected
 pension benefits received by Clay from subsequently
 awarded, retroactive service-connected disability compen-
 sation for the same time period. See Clay v. McDonough,
 No. 20-1311, 

 (Vet. App. Feb. 26, 2021)
 (“Decision”). Because Clay raises only factual issues over
 which we lack jurisdiction, we dismiss the appeal.
                        BACKGROUND
     Clay served on active duty in the Navy from May 1973
 to January 1975. In a February 1998 rating decision, a De-
 partment of Veterans’ Affairs (“VA”) Regional Office (“RO”)
 granted Clay entitlement to non-service-connected pension
 benefits with an effective date of April 1, 1995. After a se-
 ries of subsequent rating decisions and appeals, Clay was
 ultimately awarded an earlier effective date of Septem-
 ber 12, 1988.
      In June 2018, Clay was granted service connection for
 schizophrenia. The RO assigned a 100% disability rating
 with an effective date of January 22, 1985. Thus, Clay was
 eligible for both pension benefits and compensation bene-
 fits from September 12, 1988, the effective date of the pen-
 sion benefit. Because the 100% compensation benefit was
 higher than the pension benefit, the RO issued a lump-sum
 retroactive payment based on Clay’s service connection for
 schizophrenia, minus the amount of pension benefits that
 Clay had previously received. After deducting amounts for
 the previously paid pension benefits, the VA calculated
 Clay’s retroactive lump-sum payment to be $450,805.77.
 Clay appealed the VA’s decision to withhold the amount of
 the previously paid pension benefits and, in response, the
Case: 21-1830    Document: 19      Page: 3    Filed: 10/05/2021




 CLAY   v. MCDONOUGH                                        3



 RO issued a Statement of the Case concluding that the
 withholding was proper.
     Clay appealed to the Board. The Board concluded that
 the deduction of non-service-connected pension benefits
 was proper because the law prohibits the receipt of concur-
 rent payment of compensation and pension for the same
 period, citing 38 U.S.C. § 5304(a) (2012) and 38 C.F.R.
 § 3.700 (2019). Clay appealed the Board’s decision, and the
 Veterans Court affirmed, holding that the Board’s decision
 accords with governing law and was adequately explained.
 Decision, 

, at *2. To the extent that Clay
 argued that he should receive both benefits based on prin-
 ciples of equity, the court observed that it “lacks jurisdic-
 tion to grant benefits that are not otherwise authorized by
 law.” 

 (citing Burris v. Wilkie, 

, 1357–61
 (Fed. Cir. 2018)).
                         DISCUSSION
     Clay appealed to this court. Our jurisdiction to review
 decisions of the Veterans Court is limited. We may review
 a decision of the Veterans Court with respect to a rule of
 law or interpretation of a statute or regulation relied on by
 the Veterans Court in its decision. 38 U.S.C. § 7292(a).
 However, except with respect to constitutional issues, we
 may not review challenges to factual determinations or
 challenges to the application of a law or regulation to the
 facts of a particular case. Id. § 7292(d)(2).
     On appeal, Clay appears principally to argue that the
 VA should have granted service connection for schizophre-
 nia in 1985 rather in 2018. If it had done so, according to
 Clay, he never would have received non-service-connected
 pension benefits, and therefore the service connection pay-
 ments would not have been reduced by the amount of the
 previously paid pension benefits.
     The government responds that we lack jurisdiction
 over this appeal because Clay challenges only the
Case: 21-1830     Document: 19      Page: 4    Filed: 10/05/2021




 4                                         CLAY   v. MCDONOUGH



 application of law to the facts of this case. Specifically, the
 government argues that the Board correctly applied the
 statute and regulation prohibiting payment of both pension
 and compensation benefits, and the interpretation of those
 provisions is not at issue in this appeal. Even if Clay is
 correct that the VA should have awarded service-connec-
 tion in 1985, the government argues, the decision of the
 Veterans Court should be affirmed because Clay was
 awarded retroactive compensation to that date and there-
 fore is not entitled to any damages.
     We agree with the government that we lack jurisdic-
 tion over this appeal. The relevant statute provides that
 “not more than one award of pension [or] compensation . . .
 shall be made concurrently to any person based on such
 person’s own service . . . .” 38 U.S.C. § 5304(a)(1). The RO
 applied this provision to determine that Clay’s retroactive
 service-connection benefits must be reduced by the amount
 of pension benefits already paid for the same period. The
 Board and the Veterans Court affirmed the RO’s determi-
 nation but did not otherwise interpret or elaborate upon
 the meaning of the statute or its implementing regulation.
 That determination is an application of law to fact that we
 lack jurisdiction to review.
      As for Clay’s argument that the VA should have
 awarded service connection sooner, we agree with the gov-
 ernment that his arguments are foreclosed by precedent.
 “[F]actual findings of when a disability was claimed or ser-
 vice connection established are not subject to our review.”
 Butler v. Shinseki, 

, 926 (Fed. Cir. 2010). And
 to the extent that Clay implies that he is entitled to inter-
 est for the period during which retroactive benefits were
 awarded, “interest cannot be recovered in a suit against the
 Government in the absence of an express waiver of sover-
 eign immunity from an award of interest,” Library of Cong.
 v. Shaw, 

, 311 (1986), and Clay has not iden-
 tified any such waiver.
Case: 21-1830    Document: 19       Page: 5   Filed: 10/05/2021




 CLAY   v. MCDONOUGH                                        5



     Clay also raises a number of other arguments regard-
 ing mistreatment during his service, allegedly lost or mis-
 placed medical records relating to his claims, and problems
 with an attorney who previously represented him before
 the VA. But even liberally construed, these arguments are
 not directed to the narrow issue addressed by the Board
 and the Veterans Court—whether the RO properly de-
 ducted previously-paid pension benefits—and in any event
 relate to factual issues that we lack jurisdiction to review.
                        CONCLUSION
     We have considered Clay’s remaining arguments but
 find them unpersuasive. For the foregoing reasons, we dis-
 miss the appeal for lack of jurisdiction.
                        DISMISSED
                            COSTS
 No costs.