Filed: Sep. 23, 2021
Latest Update: Sep. 23, 2021
Case: 21-1869 Document: 25 Page: 1 Filed: 09/23/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FREDERICK C. FERMIN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1869
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-6360, Judge Coral Wong Pi-
etsch.
______________________
Decided: September 23, 2021
______________________
FREDERICK C. FERMIN, San Antonio, TX, pro se.
MARGARET J. JANTZEN, 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., TARA K.
HOGAN; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 21-1869 Document: 25 Page: 2 Filed: 09/23/2021
2 FERMIN v. MCDONOUGH
______________________
Before TARANTO, HUGHES, and STOLL, Circuit Judges.
PER CURIAM.
Frederick Fermin, a veteran of the U.S. Army, appeals
the decision of the United States Court of Appeals for Vet-
erans Claims in Fermin v. McDonough, No. 20-6360, 2021
WL 969211 (Vet. App. Mar. 16, 2021). Mr. Fermin primar-
ily argues that the Veterans Court erred by permitting the
Secretary to file an untimely brief and that the 1949 deci-
sion reducing Mr. Fermin’s disability rating from 100% to
70% contains clear and unmistakable error (CUE). We lack
jurisdiction to consider these arguments because they in-
volve factual determinations or application of law to fact.
I
Mr. Fermin served in the Army from March 1941 to
September 1945 and from May 1946 to February 1947. In
February 1947, Mr. Fermin was medically discharged from
the Army for schizophrenia for which he received a 100%
disability rating. Following a medical examination that in-
dicated his condition had improved, that disability rating
was reduced to 70% in March 1949.
Mr. Fermin was subsequently awarded a 100% disabil-
ity rating, effective January 1981, for two new diagnoses,
Post Traumatic Stress Disorder and bipolar disorder, that
had previously been diagnosed as schizophrenia. In Sep-
tember 2004, the regional office denied Mr. Fermin an ear-
lier effective date for these new diagnoses, and that
decision became final when Mr. Fermin did not appeal.
Then in April 2018, Mr. Fermin filed a claim asserting
CUE in the 1949 and 2004 RO decisions. The CUE claims
were denied by the RO and the Board. On appeal, the Vet-
erans Court held that several of Mr. Fermin’s CUE allega-
tions were raised for the first time and, therefore, the court
lacked jurisdiction to consider them, while noting that
Case: 21-1869 Document: 25 Page: 3 Filed: 09/23/2021
FERMIN v. MCDONOUGH 3
Mr. Fermin was not barred from properly raising them to
the RO. The Veterans Court affirmed the Board’s decision
as to the CUE allegations that were properly raised. And it
denied Mr. Fermin’s request to reject the Secretary’s brief
as untimely filed.
II
We have limited jurisdiction over appeals from the Vet-
erans Court. We “decide all relevant questions of law, in-
cluding interpreting constitutional and statutory
provisions.” 38 U.S.C. § 7292(d)(1). But we cannot review a
challenge to a factual determination or a challenge to a law
or regulation as applied to the facts of a case, except to the
extent that an appeal presents a constitutional issue. Id.
§ 7292(d)(2); Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010).
III
To the extent that Mr. Fermin disputes the Veterans
Court’s determination that it lacked jurisdiction to hear
Mr. Fermin’s new CUE arguments (i.e., the 1949 RO rating
sheet’s listing of “dementia praecox” rather than schizo-
phrenia and the misdiagnosis of PTSD with bipolar disor-
der as schizophrenia), Appellant’s Br. 4, he does not
contend that the Veterans Court articulated an incorrect
legal standard, nor could he because the Veterans Court
properly cited the governing standard. See Fermin, 2021
WL 969211, at *4–5 (citing Jarrell v. Nicholson,
20 Vet.
App. 326, 333 (2006) and Andre v. Principi,
301 F.3d 1354,
1361 (Fed. Cir. 2002)). Rather, his arguments go to the Vet-
erans Court’s application of that standard, a question we
lack jurisdiction to consider.
Likewise, Mr. Fermin’s argument that the Secretary
filed an untimely brief is also an application of law to fact
that we cannot consider. And to the extent he attempts to
reframe this issue (or other asserted regulatory or statu-
tory violations) as a constitutional challenge, we have
Case: 21-1869 Document: 25 Page: 4 Filed: 09/23/2021
4 FERMIN v. MCDONOUGH
repeatedly noted that an appellant cannot so evade our ju-
risdictional limitations. See Helfer v. West, 174 F.3d 1332,
1335 (Fed. Cir. 1999) (“[An appellant’s] characterization of
[a] question as constitutional in nature does not confer
upon us jurisdiction that we otherwise lack.”).
Finally, Mr. Fermin argues that the RO improperly re-
duced his 100% disability rating to 70% in its 1949 decision
and improperly denied an earlier effective date in its 2004
decision. Appellant’s Br. 4–5, 9. Specifically, Mr. Fermin
asserts that the 1949 RO rating sheet is CUE because it
incorrectly characterized Mr. Fermin’s service as “no com-
bat” and that the RO committed CUE in 2004 by failing to
inform him of the effective date. Id. The Veterans Court
affirmed the Board’s decision on these CUE claims, stating
that Mr. Fermin made no argument to the Veterans Court
that the Board erred as to those claims. Fermin,
2021 WL
969211, at *4–5. Mr. Fermin has identified no legal error
in that affirmance, and we accordingly dismiss.
IV
Because we lack jurisdiction to consider the arguments
raised on appeal, we dismiss.
DISMISSED
No costs.
