Vaughn v. McDonald , 642 F. App'x 1003 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BURDELL VAUGHN,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1064
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2462, Chief Judge Bruce E.
Kasold.
______________________
Decided: March 18, 2016
______________________
BURDELL VAUGHN, Waukegan, IL, pro se.
ZACHARY JOHN SULLIVAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., SCOTT D. AUSTIN; CHRISTINA LYNN
GREGG, BRIAN D. GRIFFIN, Office of General Counsel,
2 VAUGHN v. MCDONALD
United States Department of Veterans Affairs, Washing-
ton, DC.
______________________
Before REYNA, WALLACH, and STOLL, Circuit Judges.
PER CURIAM.
Burdell Vaughn appeals a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”), which affirmed the Board of Veterans’ Appeals
(“Board”) decision finding no clear and unmistakable error
(“CUE”) in the Regional Office’s (“RO”) decision denying
service connection for residuals of a back injury. Vaughn
v. McDonald, No. 14-2462 (Vet. App. Aug. 13, 2015). For
the reasons below, we dismiss for lack of jurisdiction.
BACKGROUND
Mr. Vaughn served on active duty from May to No-
vember 1972. In November 1991, Mr. Vaughn submitted
a claim to the Department of Veterans Affairs (“DVA”)
seeking compensation for a service-connected back injury.
The RO denied his claim in May 1992, determining that
“this condition existed prior to service and was not aggra-
vated during [Mr. Vaughn’s] military service.” Supple-
mental Appendix (“S.A.”) 44. The RO also noted that
Mr. Vaughn had failed to attend scheduled medical exam-
inations. Id. Mr. Vaughn did not appeal the May 1992
decision, and it became final.
Mr. Vaughn later filed CUE claims, alleging that
(1) the May 1992 RO decision incorrectly found that he
suffered a pre-service spine injury that was not aggravat-
ed during service; and that (2) his notice for the scheduled
examination was sent to the wrong address. The RO
rejected Mr. Vaughn’s CUE claims in a September 2010
decision, and the Board affirmed.
On Mr. Vaughn’s first argument, the Board deter-
mined that the RO failed to apply the presumption of
VAUGHN v. MCDONALD 3
soundness under 38 U.S.C. § 1111, which arises where a
condition is not noted at the time of entry into service.
Nevertheless, the Board concluded that “in the May 1992
decision, it is not clear and unmistakable that the out-
come would have been manifestly different if the error
had not been made” because “there was at that time, no
evidence whatsoever of a then-current spine disability as
of May 1992.” S.A. 10. Addressing Mr. Vaughn’s second
argument of an incorrect address, the Board determined
that even if the notice was sent to an incorrect address,
which the record did not support, such error would
amount to a failure to comply with the duty to assist,
which “cannot be the basis for a CUE claim.” S.A. 8
(citing Caffrey v. Brown, 6 Vet. App. 377, 384 (1994)).
Mr. Vaughn appealed to the Veterans Court, which af-
firmed the Board’s decision. Mr. Vaughn now appeals to
this court.
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). Un-
less a constitutional issue is presented, we have no juris-
diction to review questions of fact or the application of a
law or regulation to a particular set of facts. Id.§ 7292(d)(2).
To be eligible for disability compensation, a veteran
must show: “(1) the existence of a present disability;
(2) in-service incurrence or aggravation of a disease or
injury; and (3) a causal relationship between the present
disability and the disease or injury incurred or aggravat-
ed during service.” Shedden v. Principi, 381 F.3d 1163,
1166–67 (Fed. Cir. 2004). As we have explained, “the
presumption of soundness relates to the second element
4 VAUGHN v. MCDONALD
required to establish a right to disability compensation—
the showing of in-service incurrence or aggravation of a
disease or injury.” Holton v. Shinseki, 557 F.3d 1362,
1367 (Fed. Cir. 2009). “The presumption of soundness . . .
does not relieve the veteran of the obligation to show the
presence of a current disability and to demonstrate a
nexus between that disability and the in-service injury or
disease or aggravation thereof.” Id. Here, Mr. Vaughn
challenges the Board’s finding that there was no evidence
of record at the time of the May 1992 decision that he had
a then-current back disability, the first requirement for
service connection. S.A. 10. But as a factual determina-
tion, “we cannot review the VA’s finding that
[Mr. Vaughn] did not prove a compensable present disa-
bility at the time of his . . . claim.” See Conley v. Peake,
543 F.3d 1301, 1305 (Fed. Cir. 2008).
Mr. Vaughn further argues that the Board should
have obtained and considered additional medical records
and that the notices of medical examination were sent to
an incorrect address. He also argues that the VA was
“negligent” in failing to escort him to medical appoint-
ments as a patient in a VA medical facility. These argu-
ments raise issues with the factual application of the duty
to assist, and it is “impossible for a breach of the duty to
assist to form the basis for a CUE claim.” Cook v. Princi-
pi, 318 F.3d 1334, 1346 (Fed. Cir. 2002) (en banc). CUE
must “be outcome determinative and be based on the
record that existed at the time of the original decision.”
Id. (emphasis added). Here, the Veterans Court merely
applied established law in finding no CUE, which “is fact-
based and hence beyond our jurisdiction.” See Yates v.
West, 213 F.3d 1372, 1375 (Fed. Cir. 2000).
Mr. Vaughn’s remaining arguments likewise fall out-
side our limited jurisdiction because he only disputes the
Board’s factual findings or the application of law to fact.
For example, his argument that that Board unreasonably
delayed issuing its decision is a factual dispute that we
VAUGHN v. MCDONALD 5
lack jurisdiction to review. See Spain v. Principi,
5 F. App’x 874, 875 (Fed. Cir. 2001).
CONCLUSION
We have considered Mr. Vaughn’s remaining argu-
ments and determine that they fail to raise any legal
issue within our jurisdiction. For the foregoing reasons,
we dismiss for lack of jurisdiction.
DISMISSED
COSTS
No costs.