Case: 22-2087 Document: 30 Page: 1 Filed: 02/15/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HARMAN KEYS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-2087
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-6789, Judge Scott Laurer.
______________________
Decided: February 15, 2023
______________________
HARMAN KEYS, Indianola, MS, pro se.
SARAH E. KRAMER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
______________________
Case: 22-2087 Document: 30 Page: 2 Filed: 02/15/2023
2 KEYS v. MCDONOUGH
Before LOURIE, CUNNINGHAM, and STARK, Circuit Judges.
PER CURIAM.
Harman Keys appeals from the decision of the United
States Court of Appeals for Veterans Claims (“the Veterans
Court”) affirming a Board of Veterans’ Appeals (“the
Board”) decision that denied Keys’ “motion for revision” re-
questing assignment of an earlier effective date based on
clear and unmistakable error (“CUE”) in March 13, 1986,
and June 20, 1986 rating decisions. Keys v. McDonough,
No. 20-6789, ECF No. 13-1, J.A. 16–26 (Vet. App. Apr. 25,
2022) (“Decision”). For the reasons detailed below, we dis-
miss Keys’ appeal for lack of jurisdiction.
BACKGROUND
Keys served on active duty from May 1979 to August
1983. In October 1985, Keys filed a claim for disability ben-
efits for a sinus tumor. In March 1986, the regional office
(“RO”) issued a rating decision. In its decision, the RO
noted that Keys had undergone a frontal craniotomy dur-
ing service to remove a frontal sinus tumor (“mucocele”)
that caused headaches and eye bulging (“exophthalmos”).
The RO then granted service connection for status post cra-
niotomy, which involved a frontal excision of right frontal
mucocele that had invaded anterior cranial fossa with burr
holes, and bilateral rhinotomy scars and frontal craniot-
omy scar, both of which were well-healed and nontender.
The RO issued a 10 percent rating effective October 2,
1985.
In June 1986, following additional examination to eval-
uate residuals of the craniotomy, the RO determined that
the sinus growth no longer affected Keys’ sinuses and that
residuals were found to involve facial scars and burr holes
for which the RO awarded a separate rating. Keys did not
appeal either of the rating decisions, which became final.
Fifteen years later, in July 2001, Keys submitted a
1982 medical report and stated that the RO had not
Case: 22-2087 Document: 30 Page: 3 Filed: 02/15/2023
KEYS v. MCDONOUGH 3
considered his complaints of headaches, dizziness, and an
eye condition in adjudicating his claim or considered that
the mucocele affected his brain. In July 2002, the RO is-
sued a decision and found that those conditions had been
addressed in its prior 1986 rating decisions, which were fi-
nal. The RO then accepted Keys’ medical report submis-
sion as a request to reopen his claim and granted service
connection for optic nerve compression with exophthalmos,
rated at 10 percent, effective July 26, 2001. The RO deter-
mined that an earlier effective date was not warranted be-
cause Keys did not request to reopen his claim for that
condition prior to his July 2001 letter. Service connection
was also established for dizziness due to head trauma,
rated at 10 percent, effective July 26, 2001.
In August 2002, Keys filed a notice of disagreement
challenging the effective dates assigned for the awards of
service connection made in the RO’s 2002 rating decision,
but he later withdrew his appeal of those claims. In Sep-
tember 2002, Keys was awarded total disability based on
individual unemployability (“TDIU”) benefits. He did not
appeal that rating decision, and the July 2002 and Septem-
ber 2002 rating decisions became final.
In December 2008, Keys filed a claim seeking earlier
effective dates for his eye disability, headaches, dizziness,
and TDIU. In May 2009, the RO denied the earlier effec-
tive date claims, and Keys subsequently submitted corre-
spondence which the RO construed as a notice of
disagreement. In his notice of disagreement, Keys alleged
CUE, arguing that he reported symptoms of headaches,
dizziness, and white balls in his vision during a 1986 med-
ical examination, yet service connection for those condi-
tions was not granted until 2002. The RO issued a rating
decision in June 2009 that found no CUE in the assignment
of effective dates. The RO continued to deny those claims
in an April 2011 statement of the case. Keys then submit-
ted a brief to the Board in May 2014 and argued that the
1986 examination incorrectly found no neurological
Case: 22-2087 Document: 30 Page: 4 Filed: 02/15/2023
4 KEYS v. MCDONOUGH
abnormalities. He moved for “revision” requesting assign-
ment of an earlier effective date based on CUE in the 1986
rating decisions.
In February 2019, the Board denied Keys’ motion. The
Board rejected Keys’ allegation that the 1986 rating deci-
sions erred in not considering service connection and sepa-
rate compensable ratings for headaches, dizziness, and a
right eye disorder. The Board found that the claimed con-
ditions—including by extension a claim for TDIU bene-
fits—had been implicitly denied in the 1986 rating
decisions, and that those decisions were final.
In April 2019, Keys submitted correspondence con-
strued as a motion for reconsideration of the Board deci-
sion. The Board denied the motion. Keys then appealed to
the Veterans Court, arguing that the 1986 rating decisions
contained CUE. He further argued that his benefits should
have been made retroactive to 1985. The court considered
Keys’ arguments but found that the position he urged de-
viated from the rules of finality and effective dates for the
RO decisions. The court then examined the Board’s CUE
analysis and held that the Board did not abuse its discre-
tion in finding no CUE. The court then affirmed the
Board’s decision. Subsequently, Keys filed a motion for re-
consideration that the court denied.
Keys then filed the present notice of appeal to this
court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review the validity of a decision
with respect to a rule of law or interpretation of a statute
or regulation that was relied upon by the Veterans Court
in making its decision.
38 U.S.C. § 7292(a). However, ex-
cept with respect to constitutional issues, we may not re-
view challenges to factual determinations or challenges to
Case: 22-2087 Document: 30 Page: 5 Filed: 02/15/2023
KEYS v. MCDONOUGH 5
the application of a law or regulation to the facts of a case.
38 U.S.C. § 7292(d)(2).
In reviewing a Veterans Court decision, we decide “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions,” and set aside any inter-
pretation thereof “other than a determination as to a
factual matter” relied upon by the Veterans Court that we
find to be: “(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in
excess of statutory jurisdiction, authority, limitations, or in
violation of a statutory right; or (D) without observance of
procedure required by law.”
38 U.S.C. § 7292(d). We re-
view questions of statutory and regulatory interpretation
de novo. Mayfield v. Nicholson,
499 F.3d 1317, 1321 (Fed.
Cir. 2007) (citing Prenzler v. Derwinski,
928 F.2d 392, 393
(Fed. Cir. 1991)).
Keys argues that the Board and Veterans Court failed
to properly evaluate his CUE allegations or assess the evi-
dence and, thus, committed legal error. He specifically dis-
putes the Board’s factual findings and its application of law
to the facts of his case. Additionally, Keys appears to assert
that the Board’s failure to grant an earlier effective date
indicates misconduct by the RO and the Board. See, e.g.,
Replacement Appellant Br. at 20 (“The Board in remanding
the June 2009 RO CUE claim to prevent [Keys] the right to
bring [his] December 18, 2008 claim to correct the damages
the RO had done to [him] was a crime.”);
id. at 10–11 (“The
facts in evidence [suggest that] these statements were hid-
den by way of orchestrating unlawful actions to keep these
Case: 22-2087 Document: 30 Page: 6 Filed: 02/15/2023
6 KEYS v. MCDONOUGH
facts hidden from a probable review by the [Veterans
Court].”). 1
The government responds that we lack jurisdiction to
hear this appeal because the Veterans Court did not inter-
pret any statute or regulation but instead applied estab-
lished law to the facts. Regarding Keys’ misconduct
argument, the government argues that Keys’ assertions
are baseless and do not constitute the “well-nigh irrefraga-
ble proof” required to show that government employees
were not acting in good faith. See Sanders v. United States
Postal Serv.,
801 F.2d 1328, 1331 (Fed. Cir. 1986).
We agree with the government. The Veterans Court
did not opine on the meaning of any statute, regulation, or
otherwise make a legal interpretation. It instead applied
established law and reviewed the Board’s findings of fact
for clear error. Keys contends that the Board and the court
failed to properly evaluate his CUE allegations or assess
the evidence and, thus, committed legal error. However,
Keys’ arguments focus on the weight that he believes
should have been accorded to the evidence of record, not to
any interpretation of a statute or its implementing regula-
tions. See, e.g., Replacement Appellant Br. at 2, 5 (alleging
that the Board and the Veterans Court failed to properly
construe Keys’ claim and that only limited review of evi-
dence was ever made, and that relevant evidence was not
reviewed); id. at 11 (“Under the VA rules of [CUE], the ev-
idence that [Keys] submitted to the [RO] . . . should have
been accepted and used as evidence.”).
The conclusions reached by the Veterans Court were
purely factual, requiring an assessment whether the
Board’s conclusions were supportable based on the
1 Because the page numbering in Keys’ replacement
brief is internally inconsistent, we refer to the page num-
bers generated by CM/ECF, our electronic filing system.
Case: 22-2087 Document: 30 Page: 7 Filed: 02/15/2023
KEYS v. MCDONOUGH 7
evidence of record. Thus, those conclusions are outside of
our limited jurisdiction, and we must dismiss this appeal.
See Andino v. Nicholson,
498 F.3d 1370, 1373 (Fed. Cir.
2007) (“In this decision we are not making credibility de-
terminations or weighing evidence—all of which is beyond
our jurisdiction.”); Githens v. Shinseki,
676 F.3d 1368,
1371–72 (Fed. Cir. 2012) (noting that the Veterans Court’s
determination regarding whether something was CUE was
outside the court’s jurisdiction).
Regarding Keys’ putative legal argument that the
Board’s failure to grant an earlier effective date constitutes
misconduct, allegations of bad faith cannot give us jurisdic-
tion to review questions of fact or the application of law to
fact, absent a constitutional issue. Moreover, government
employees are presumed to act in good faith, and we agree
with the government and hold that Keys’ bare assertions
do not constitute the proof required to show that govern-
ment employees were not acting in good faith. See Am-Pro
Protective Agency, Inc. v. United States,
281 F.3d 1234,
1239–40 (Fed. Cir. 2002) (holding that “the clear and con-
vincing standard most closely approximates the language
traditionally used to describe the burden for negating the
good faith presumption”).
CONCLUSION
We have considered Keys’ remaining arguments, but
we find them unpersuasive. For the foregoing reasons, we
dismiss his appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
