NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT L. FEDERICO,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-2564
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-0507, Judge Coral Wong
Pietsch, Judge William S. Greenberg, Senior Judge
Kenneth B. Kramer.
______________________
Decided: December 28, 2018
______________________
NATHAN S. MAMMEN, Kirkland & Ellis LLP,
Washington, DC, argued for claimant-appellant. Also
represented by HANNAH LAUREN BEDARD; JUDY JOANNE
DONEGAN, The Veterans Consortium Pro Bono Program,
Washington, DC; EDWARD MICHAEL FARMER, The Law
Offices of Edward M. Farmer, Aurora, IL; RICHARD
VALENTINE SPATARO, National Veterans Legal Services
Program, Washington, DC.
2 FEDERICO v. WILKIE
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by CLAUDIA BURKE, ROBERT EDWARD
KIRSCHMAN, JR., JOSEPH H. HUNT; MARTIE ADELMAN,
AMANDA BLACKMON, BRIAN D. GRIFFIN, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
Before NEWMAN, PLAGER, and MOORE, Circuit Judges.
PER CURIAM.
This is a veterans case. Robert L. Federico (Federico)
appeals the decision by the Court of Appeals for Veterans
Claims (Veterans Court), which affirmed the decision by
the Board of Veterans Appeals (Board). The decision
denies entitlement to service connection for ischemic
heart disease. Because we lack jurisdiction, we dismiss.
BACKGROUND
Federico served on active duty in the United States
Air Force from September 1967 to September 1971. He
was stationed at the Nakhon Phanom Royal Thai Air
Force Base (RTAFB) from July 1969 to August 1970. His
military occupational specialty was munitions specialist,
and he was assigned to the 456th Munitions Maintenance
Squadron.
In December 2011, Federico filed a claim with the
Department of Veterans Affairs (VA) for benefits for
ischemic heart disease based on herbicide exposure. In
August 2012, the VA denied Federico’s claim because it
could not verify herbicide exposure. Federico appealed to
the Board. The VA continued its denial in a May 2013
statement of the case and in an August 2015
supplemental statement of the case. In November 2015,
FEDERICO v. WILKIE 3
the Board held a hearing. In January 2016, the Board
affirmed. Federico appealed to the Veterans Court. In
May 2017, the Veterans Court affirmed. In July 2017, the
Veterans Court granted Federico’s motion for panel
decision and ordered that the May 2017 decision remain
the decision of the court. Federico now appeals to this
court.
DISCUSSION
Our jurisdiction to review Veterans Court decisions is
limited by statute. We may review “the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the Court in making the decision.” 38
U.S.C. § 7292(a). However, unless the appeal presents a
constitutional issue, we “may not review (A) a challenge to
a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.”
Id.
§ 7292(d)(2).
Regarding our jurisdiction, Federico contends that we
have jurisdiction for several reasons. We address each in
turn. First, Federico contends that the Veterans Court
disregarded 38 U.S.C. § 1154 and 38 C.F.R. § 3.303(a).
The statute and regulation each require that a
determination of service connection be made on the basis
of the veteran’s service as shown by the relevant evidence.
Federico contends that the Veterans Court violated the
statute and regulation because the court compared
Federico’s service to the service of other veterans in
determining that Federico’s travel on the perimeter road
of the Nakhon Phanom RTAFB was insufficient to
establish herbicide exposure.
While it is true that the Veterans Court considered
the possible service of other veterans, the court only did so
when considering Federico’s actual service—as was
required—to find that Federico was not exposed to
4 FEDERICO v. WILKIE
herbicides and therefore lacked entitlement to service
connection. The decision of whether Federico was entitled
to service connection was based on the facts at issue and
the application of law and regulation to those specific
facts. We lack jurisdiction to review such challenges. See
id.
Second, citing other Board decisions, Federico argues
that the Board typically concedes herbicide exposure in
similar circumstances. Federico contends that the
Veterans Court acted contrary to law by not finding the
Board’s decision to be arbitrary and capricious in light of
the Board’s typical practice. Federico’s argument is based
on Board decisions concerning different veterans and
different facts. In each case, as is the case here, the
decision of whether the veteran was entitled to service
connection was based on the facts at issue and the
application of law and regulation to those specific facts.
We lack jurisdiction to review such challenges. See
id.
Third, while we may review constitutional claims, we
lack jurisdiction over claims that are constitutional in
name only. See Helfer v. West,
174 F.3d 1332, 1335 (Fed.
Cir. 1999). Federico styles his appeal as raising a
constitutional issue. Again citing other Board decisions,
Federico contends that other veterans were granted
service connection in similar circumstances. He argues
that the Veterans Court’s denial of service connection
constitutes an equal protection violation because he was
treated differently.
However, Federico’s argument is based on different
factual scenarios. As previously discussed, the particular
factual findings and applications of law and regulation to
fact involved in those other cases were dispositive. The
same is true here. Federico is actually challenging the
Veterans Court’s particular factual findings and
applications of law and regulation to fact that were
FEDERICO v. WILKIE 5
unfavorable to him. We cannot review such matters. See
38 U.S.C. § 7292(d)(2).
We have considered the remaining arguments raised
on appeal and find them unpersuasive. Because we lack
jurisdiction, we must dismiss.
CONCLUSION
For the foregoing reasons, we dismiss the appeal.
DISMISSED
COSTS
No costs.
