Filed: Oct. 07, 2021
Latest Update: Oct. 07, 2021
Case: 21-2022 Document: 22 Page: 1 Filed: 10/07/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRISTOPHER A. VACA,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2022
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-8745, Judge Joseph L. Toth.
______________________
Decided: October 7, 2021
______________________
CHRISTOPHER A. VACA, San Antonio, TX, pro se.
RAFIQUE OMAR ANDERSON, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
TARA K. HOGAN.
______________________
Before PROST, REYNA, and STOLL, Circuit Judges.
Case: 21-2022 Document: 22 Page: 2 Filed: 10/07/2021
2 VACA v. MCDONOUGH
PER CURIAM.
Christopher Vaca, a United States Army veteran, ap-
peals the decision of the United States Court of Appeals for
Veterans Claims in Vaca v. Tran, No. 19-8745, 2021 WL
422506 (Vet. App. Feb. 8, 2021). Mr. Vaca raises a number
of arguments asserting that his disability ratings decisions
should be corrected because they contain clear and unmis-
takable error (CUE). Because Mr. Vaca’s challenges on ap-
peal involve the application of law to fact, we dismiss for
lack of jurisdiction.
BACKGROUND
Mr. Vaca served in the United States Army from No-
vember 1992 to November 1996. Shortly thereafter,
Mr. Vaca sought benefits for certain service-related disa-
bilities—retropatellar pain syndrome of both knees, tinea
pedis for his left foot, and low back pain. On May 14, 1997,
the Veterans Affairs Regional Office (1) granted service
connection for retropatellar pain syndrome for both knees
and assigned a single, combined 10 percent rating;
(2) granted service connection for tinea pedis for Mr. Vaca’s
left foot, but assigned a noncompensable rating under the
applicable rating criteria at the time; and (3) denied service
connection for low back pain because Mr. Vaca had not sub-
mitted evidence of a “permanent residual or chronic disa-
bility” (i.e., there was no evidence of a current back
disability). SAppx. 87–89. 1 No notice of disagreement was
filed, and therefore these determinations became final.
In 2004, Mr. Vaca sought service connection for tinea
pedis of his right foot. SAppx. 76. The Regional Office de-
nied service connection because the evidence did not show
a chronic disability. Id.
1 “SAppx.” refers to the supplemental appendix filed
by the Government.
Case: 21-2022 Document: 22 Page: 3 Filed: 10/07/2021
VACA v. MCDONOUGH 3
In 2009, Mr. Vaca sought increased benefits for his
knee and foot conditions, which were granted by the Re-
gional Office. SAppx. 75–80. Regarding Mr. Vaca’s knee
disability, the Regional Office found an increased disability
based on a 2009 examination and thus granted individual
10 percent ratings for each knee (rather than the single 10
percent rating for both knees together). SAppx. 75, 77. For
Mr. Vaca’s foot condition, the Regional Office reopened
Mr. Vaca’s claim for service connection for his right foot (in
addition to his left) based on the new 2009 examination,
granted service connection for the right foot, and assigned
a 10 percent rating for his bilateral condition.
SAppx. 76–77.
In 2012, the Regional Office made a decision to recoup
an overpayment of benefits to Mr. Vaca in 2009 by reducing
his disability compensation. SAppx. 9. This was because
Mr. Vaca had received active service pay for five days in
2009, and thus was not entitled to disability compensation
at the same time. Id.; Appellant’s Br. 13. 2
In 2014, Mr. Vaca filed a motion to revise, on the basis
of clear and unmistakable error (CUE), the 1997 and 2009
ratings determinations as well as the 2012 decision to re-
duce compensation to offset an overpayment by the agency.
SAppx. 66–67; see SAppx. 2. The Regional Office denied
CUE. SAppx. 66–74. The Board affirmed. SAppx. 12–28.
The CAVC affirmed. SAppx. 1–10; Vaca, 2021 WL 422506,
at *7.
Mr. Vaca now appeals to this court.
2 “Appellant’s Br. __” refers to pages in Mr. Vaca’s
informal brief as numbered by operation of the Court’s elec-
tronic filing system.
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4 VACA v. MCDONOUGH
DISCUSSION
Our jurisdiction over appeals from the Veterans Court
is limited. We are permitted to “decide all relevant ques-
tions of law, including interpreting constitutional and stat-
utory provisions.” 38 U.S.C. § 7292(d)(1). But we cannot
review a challenge to a factual finding 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).
On appeal, Mr. Vaca makes a number of arguments
challenging the Veterans Court’s decision, but they all in-
volve challenges to the application of the law to the facts in
Mr. Vaca’s case—questions that we may not review.
For instance, construing Mr. Vaca’s brief liberally, we
understand Mr. Vaca to argue that the Veterans Court’s
decision is in conflict with Veterans Court cases in which
the court remanded due to inadequate VA medical exami-
nation. Appellant’s Br. 5 (first citing Reonal v. Brown,
5 Vet. App. 458, 461 (1993); then citing Stegall v. West,
11 Vet. App. 268 (1998); and then citing Barr v. Nicholson,
21 Vet. App. 303, 311 (2007)). None of those cases involved
claims of CUE. Here, the Veterans Court simply applied
the established law to the facts of Mr. Vaca’s case in reject-
ing his argument of CUE based on inadequate examina-
tion. SAppx. 4–5 (citing George v. Wilkie,
32 Vet. App. 318,
327 (2020) (“[A] duty-to-assist error is not sufficient to con-
stitute CUE.”)); Vaca,
2021 WL 422506, at *3.
As to Mr. Vaca’s argument that the Veterans Court de-
cided constitutional issues, we understand Mr. Vaca to
first argue that the Board failed to reference certain medi-
cal evidence. Appellant’s Br. 6–7. This, however, is not a
constitutional issue but instead is a challenge to the appli-
cation of the law to the facts of Mr. Vaca’s case, as it chal-
lenges whether the Board gave adequate reasons for its
decision. Buchert v. Shinseki, 423 F. App’x 988, 990
Case: 21-2022 Document: 22 Page: 5 Filed: 10/07/2021
VACA v. MCDONOUGH 5
(Fed. Cir. 2011) (“[D]etermining whether the Board pro-
vided a sufficient statement of the reasons for its decision
involves the application of law to facts.”). We therefore do
not have jurisdiction to consider this question. The second
issue we understand Mr. Vaca to raise in this section is
that the VA failed in its duty to assist by “explain[ing] fully
the issues and suggest[ing] the submission of evidence.”
Appellant’s Br. 6–7 (quoting 38 C.F.R. § 3.103(d)(2)). But
as stated above, this is an application of law to fact, not a
constitutional issue, and we therefore do not have jurisdic-
tion to consider this question. Mr. Vaca’s characterization
of these arguments as constitutional does not give this
court jurisdiction over those questions. Helfer v. West,
174 F.3d 1332, 1335 (Fed. Cir. 1999).
Mr. Vaca also appears to challenge the Board’s deter-
mination that the 2009 Regional Office decisions became
final because he did not submit a notice of disagreement.
Appellant’s Br. 8. Mr. Vaca contends that “[w]hether a
[n]otice of [d]isagreement [Appeal] is adequate is an ap-
pealable issue.” Id. (fourth alteration in original). It is un-
clear how this would affect Mr. Vaca’s case, where he does
not assert that he ever filed a notice of disagreement
(timely or not, adequate in substance or not). Thus,
whether or not the adequacy of a notice of disagreement is
an appealable issue, it does not apply to Mr. Vaca’s appeal.
Mr. Vaca also argues that the RO committed CUE by
failing to notify him of the statutory or regulatory basis of
his benefits reduction due to the overpayment when he was
simultaneously receiving active duty pay. Appellant’s
Br. 13–14. The Board and the Veterans Court rejected this
contention, both pointing to 38 U.S.C. § 5304(c), which for-
bids “compensation . . . for any period for which such per-
son receives active service pay.” Both the Board and the
Veterans Court noted that Mr. Vaca failed to provide any
legal authority that would support his claim that the Re-
gional Office was required to notify him of the basis of the
reduction and that its failure to do so was therefore CUE.
Case: 21-2022 Document: 22 Page: 6 Filed: 10/07/2021
6 VACA v. MCDONOUGH
SAppx. 9, 24–25; Vaca, 2021 WL 422506, at *6. The
Board’s and the Veterans Court’s decisions were merely ap-
plications of the law regarding CUE and 38 U.S.C.
§ 5304(c) to the facts of Mr. Vaca’s case. Such decisions are
not within our jurisdiction to review.
The remainder of Mr. Vaca’s challenges are, likewise,
directed to issues regarding the application of law to fact.
See, e.g., Appellant’s Br. 9 (arguing the Regional Office “in-
correctly applied statutory and regulatory provisions”),
10–11 (same), 14 (“error in its application of 38 CFR sec-
tion 3.156”). For instance, several of Mr. Vaca’s arguments
simply argue that the Regional Office erred in denying a
higher rating or denying an earlier effective date. See, e.g.,
id. at 11–13. In other words, Mr. Vaca is arguing not that
the Regional Office wrongly interpreted a statute or regu-
lation but that its application of the statute or regulation
to Mr. Vaca’s facts was erroneous. We are unable to decide
the merits of these arguments as they are outside our ju-
risdiction.
We have considered Mr. Vaca’s remaining arguments
on appeal and we conclude that none are within our juris-
diction.
CONCLUSION
Because we lack jurisdiction to consider the arguments
raised on appeal, we dismiss.
DISMISSED
COSTS
No costs.
