Case: 21-1358 Document: 26 Page: 1 Filed: 10/12/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MIKE R. LEVARIO,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1358
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-9109, Judge Michael P. Allen.
______________________
Decided: October 12, 2021
______________________
MIKE R. LEVARIO, San Antonio, TX, pro se.
VIJAYA SURAMPUDI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, ROBERT EDWARD
KIRSCHMAN, JR.; AMANDA BLACKMON, BRIAN D. GRIFFIN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Case: 21-1358 Document: 26 Page: 2 Filed: 10/12/2021
2 LEVARIO v. MCDONOUGH
Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.
PER CURIAM.
Many years after completing his service in the Marine
Corps, Mike R. Levario sought benefits from the Depart-
ment of Veterans Affairs (VA) for residual effects of a cer-
vical spine surgery conducted at a VA facility, as well as for
a vocal cord condition and a throat condition. The relevant
VA regional office (RO) and then the Board of Veterans’ Ap-
peals denied the requested benefits, both under
38 U.S.C.
§ 1110 (service-connected disability based on wartime ser-
vice) and under
38 U.S.C. § 1151 (compensation for disabil-
ity from VA medical treatment). When Mr. Levario
appealed the Board’s decision to the Court of Appeals for
Veterans Claims (Veterans Court), that court dismissed
the appeal as to Mr. Levario’s § 1110 claims and affirmed
the Board’s denial as to his § 1151 claims. Levario v.
Wilkie, No. 19-9109,
2020 WL 5200655 (Vet. App. Aug. 31,
2020); Supplemental Appendix (SAppx.) 1–9. Mr. Levario
now appeals to us. We must dismiss the appeal, because
we lack jurisdiction to decide the issues he raises.
I
We recite the background facts based on the factual
findings and premises set forth by the Board and the Vet-
erans Court, which (as noted infra) we lack jurisdiction to
question in this case. Mr. Levario served in the Marine
Corps from October 1971 to August 1974, a period of war.
In May 2007, he sought treatment at a VA medical center
for a cervical spine condition and underwent surgery at a
VA facility. In 2011, Mr. Levario filed a claim for disability
benefits, under
38 U.S.C. § 1110, for residuals from his cer-
vical spine surgery, a vocal cord condition, and a throat
condition, which he alleged were service connected.
In June 2013, the relevant RO denied those claims,
stating that there was no evidence that the cervical spine
Case: 21-1358 Document: 26 Page: 3 Filed: 10/12/2021
LEVARIO v. MCDONOUGH 3
surgery, vocal cord condition, and throat condition were
connected to his military service. SAppx. 38–39. Mr. Le-
vario appealed to the Board. In a January 2019 decision,
the Board found that Mr. Levario’s claims were more ap-
propriately characterized as claims for compensation un-
der
38 U.S.C. § 1151, which allows a veteran disabled
because of VA medical treatment to receive compensation
for a qualifying disability in specified circumstances in the
same manner as if the disability were service connected.
SAppx. 34. Accordingly, without reviewing the denial of
the § 1110 claims, the Board remanded to the RO with in-
structions to also “develop and adjudicate” Mr. Levario’s
claims under § 1151. SAppx. 35.
On remand, the RO obtained additional medical rec-
ords and arranged for and received a VA medical opinion
concerning Mr. Levario’s § 1151 claims. In August 2019,
the RO denied Mr. Levario’s claims, finding that the claims
did not meet the requirements for compensation under
§ 1151 and its implementing regulation,
38 C.F.R. § 3.361.
Specifically, the RO found that the throat condition was re-
lated to extrinsic compression of the esophagus, not to the
spine surgery. SAppx. 29. The RO also found that, while
there was evidence of a nerve injury that resulted in a tran-
sient vocal cord condition following surgery, that condition
had resolved, and, more generally, there was no evidence
that it had resulted from carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on the part of VA and no evidence that it was not reasona-
bly foreseeable. SAppx. 28–29. The RO further noted the
absence in this case of any other “residuals of spinal cord
surgery.” SAppx. 28. Mr. Levario appealed the RO’s deci-
sion to the Board, which in December 2019 affirmed both
the August 2019 RO decision concerning the § 1151 claims
and the June 2013 RO decision concerning the § 1110
claims. SAppx. 13–23.
Mr. Levario then appealed the Board’s decision to the
Veterans Court, which issued a single-judge decision on
Case: 21-1358 Document: 26 Page: 4 Filed: 10/12/2021
4 LEVARIO v. MCDONOUGH
August 31, 2020. The court dismissed the appeal concern-
ing the § 1110 claims, finding Mr. Levario’s arguments too
undeveloped to address. Levario,
2020 WL 5200655, at *2.
The court affirmed the Board’s rejection of the § 1151
claims, rejecting Mr. Levario’s arguments that the Board
failed to ensure compliance with its January 2019 remand,
improperly relied on the VA medical opinion, and did not
sufficiently explain its decision. Id. at *2–4. On September
29, 2020, a three-judge panel of the Veterans Court
adopted the one-judge decision as the decision of the Veter-
ans Court. SAppx. 1–2. Mr. Levario timely appealed.
II
This court’s jurisdiction to review decisions of the Vet-
erans Court, defined by
38 U.S.C. § 7292, is limited. We
have jurisdiction to decide an appeal insofar as it presents
a challenge to a Veterans Court’s decision regarding a rule
of law, including a decision about the interpretation or va-
lidity of any statute or regulation.
Id. § 7292(a), (d)(1). We
do not have jurisdiction to review a challenge to a factual
determination or a challenge to the application of a law or
regulation to the facts of a particular case, except to the
extent that an appeal presents a constitutional issue. Id.
§ 7292(d)(2). Under those standards, Mr. Levario has not
presented an issue that is within our jurisdiction.
Mr. Levario has not shown that the Veterans Court ex-
pressly or implicitly interpreted or ruled on the validity or
interpretation of a statute or regulation or other rule of
law. He questions many aspects of the Veterans Court’s
decision. App. Inf. Br. at 4–7 (questioning the Veteran
Court’s dismissal of the § 1110 claims); 1 id. at 1–2, 9–10
1 It is unclear whether Mr. Levario contends that the
Veterans Court was incorrect to conclude that he had not
adequately presented arguments concerning the Board’s
adjudication of his § 1110 claims or, instead, was incorrect
Case: 21-1358 Document: 26 Page: 5 Filed: 10/12/2021
LEVARIO v. MCDONOUGH 5
(questioning the determination that the Board complied
with the 2019 remand order, sufficiently explained its rea-
soning, and permissibly relied on an adequate medical
opinion); see also App. Inf. Reply Br. at 1–3 (elaborating on
compliance with remand arguments); id. at 3–5 (question-
ing the Veteran Court’s understanding of § 1151 and of
38
C.F.R. § 3.102). Although he asserts that Veterans Court’s
conclusions were “based on an incorrect understanding of
the governing law,” App. Inf. Br. at 6, we see nothing be-
yond challenges to the Veterans Court’s application of gov-
erning legal standards to the facts of this case (or
challenges to Board findings of fact)—challenges that are
outside our jurisdiction where no constitutional issue is
meaningfully presented.
The Veterans Court applied the proper legal standard
concerning the threshold for sufficiently developed argu-
ments and determined that any appeal concerning § 1110
claims for benefits for service-connected disabilities—to
the extent Mr. Levario even raised such arguments—
should be dismissed. Levario,
2020 WL 5200655, at *2.
The Veterans Court also applied proper legal standards in
affirming the Board’s § 1151 decision—concerning review
of Board determinations of the adequacy of medical opin-
ions, the right to compliance with a remand order, and the
requirement that the Board provide adequate reasoning.
Id. at *2–4. These types of determinations are either a “fac-
tual determination” under § 7292(d)(2)(A) or the applica-
tion of law to “the facts of a particular case” under
§ 7292(d)(2)(B) and thus not within this court’s appellate
jurisdiction in the absence of a constitutional challenge.
See, e.g., Dyment v. Principi,
287 F.3d 1377, 1381 (Fed. Cir.
to address the § 1110 claims at all (since he had not in-
cluded such claims in his notice of appeal to the Veterans
Court). This distinction does not affect our determination
that we lack jurisdiction.
Case: 21-1358 Document: 26 Page: 6 Filed: 10/12/2021
6 LEVARIO v. MCDONOUGH
2002); Rascoe v. Wilkie, 842 F. App’x 568, 570–71 (Fed. Cir.
2021); Smith v. McDonough, 856 F. App’x 297, 298–99 (Fed
Cir. 2021); Sharkozy v. Shinseki, 524 F. App’x 694, 697
(Fed. Cir. 2013).
Mr. Levario has not stated a constitutional challenge.
Citing Conroy v. Aniskoff,
507 U.S. 511, 514 (1993), Mr. Le-
vario argues that the Veterans Court “[failed] to provide an
accurate and complete written definition of 38 USC section
1151 pursuant to . . . 38 CFR section 3.361.” App. Inf. Br.
at 2, 8–9; see also App. Inf. Reply Br. at 3. He also repeats
his arguments concerning alleged non-compliance with the
Board’s 2019 remand order, App. Inf. Br. at 9; App. Inf.
Suppl. Br. at 4–6; contends that the Board failed to con-
sider all theories of entitlement, App. Inf. Br. at 9, 11; and
argues that the Veterans Court intentionally ignored rele-
vant questions of law, improperly relied on his lack of legal
knowledge, and disregarded his constitutional and statu-
tory rights to “fair and equal due process,” id. at 2, 11. But
these bare invocations of constitutional labels do not give
rise to a recognizable constitutional violation, and this is
not a case where a constitutional claim is apparent in the
absence of explanation. See Helfer v. West,
174 F.3d 1332,
1335 (Fed. Cir. 1999) (holding there is no § 7292 jurisdic-
tion based on bare invocation of constitutional label). Ac-
cordingly, we must dismiss for lack of jurisdiction.
III
For the foregoing reasons, Mr. Levario’s appeal is dis-
missed.
The parties shall bear their own costs.
DISMISSED
