Case: 21-2332 Document: 18 Page: 1 Filed: 05/10/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANCOIS G. DUMAINE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2332
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-3414, Judge Joseph L. Falvey,
Jr.
______________________
Decided: May 10, 2022
______________________
FRANCOIS G. DUMAINE, Venice, FL, pro se.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, MARTIN F.
HOCKEY, JR.
______________________
Case: 21-2332 Document: 18 Page: 2 Filed: 05/10/2022
2 DUMAINE v. MCDONOUGH
Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.
PER CURIAM.
Francois G. Dumaine appeals the decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”) affirming the Board of Veterans’ Appeals’
(“Board”) denial of his request to reopen his disability ben-
efits claim for type 2 diabetes mellitus. See Dumaine v.
McDonough, No. 20-3414,
2021 WL 2669283 (Vet. App.
June 30, 2021). For the reasons below, we dismiss for lack
of jurisdiction.
I
Mr. Dumaine served on active duty from March 1966
to December 1967, and from January to December 1967, he
was stationed at the joint U.S. Army/U.S. Air Force/Royal
Thai Air Force base near Korat, Thailand. Dumaine,
2021
WL 2669283, at *1. In August 1997, Mr. Dumaine was di-
agnosed with type 2 diabetes mellitus.
Id. Approximately
five years later, he filed a disability benefits claim with the
U.S. Department of Veterans Affairs (“VA”) seeking service
connection for his diabetes on the basis that he was exposed
to Agent Orange while stationed in Thailand.
Id. After the
VA regional office (“RO”) denied his claim, Mr. Dumaine
appealed to the Board.
Id. at *1–2. The case went between
the RO and the Board several times over the next decade.
Id. Finally, in September 2013, the Board denied service
connection after finding that Mr. Dumaine was not exposed
to any herbicides during his service. Id. at *2. Because Mr.
Dumaine did not appeal the September 2013 Board deci-
sion, that decision became final. Id.
In October 2016, Mr. Dumaine filed another claim for
disability benefits based on the same theories of Agent Or-
ange exposure that he previously presented. See id.; see
also J.A. 20. The RO construed Mr. Dumaine’s filing as a
request to reopen his original claim and denied that re-
quest after finding Mr. Dumaine had not presented any
Case: 21-2332 Document: 18 Page: 3 Filed: 05/10/2022
DUMAINE v. MCDONOUGH 3
new and material evidence. Dumaine,
2021 WL 2669283,
at *2. Mr. Dumaine appealed to the Board, which likewise
concluded there was no new and material evidence and de-
nied the request to reopen.
Id. Mr. Dumaine then appealed
to the Veterans Court.
Id. Reviewing the Board’s decision
for clear error, the Veterans Court found none and affirmed
the Board’s denial of Mr. Dumaine’s request to reopen.
Id.
at *3–4. Mr. Dumaine now appeals the Veterans Court’s
decision.
II
As set forth in
38 U.S.C. § 7292(d)(2), we have limited
jurisdiction to review decisions of the Veterans Court. Ex-
cept to the extent that an appeal presents a constitutional
issue, we “may not review (A) a challenge to a factual de-
termination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.”
38 U.S.C.
§ 7292(d)(2). We have jurisdiction, however, to “decide all
relevant questions of law.”
Id. § 7292(d)(1). Because we
lack jurisdiction over the only issue presented by Mr. Du-
maine, we accordingly dismiss this appeal.
Mr. Dumaine fails to raise a question of law pertinent
to this appeal. He alleges in his informal brief that the Vet-
erans Court’s decision “involve[d] the validity or interpre-
tation of” two statutes,
38 U.S.C. §§ 7252(a) and 7266(a),
and one Veterans Court case, Frankel v. Derwinski,
1 Vet.
App. 23 (1990), noting without further explanation that
“new and material evidence was submitted.” Appellant’s
Br. at 1. But, contrary to what Mr. Dumaine suggests, the
Veterans Court did not rely on, let alone interpret, the au-
thority he identifies in concluding that there was no clear
error in the Board’s decision. For instance,
38 U.S.C.
§ 7252(a) grants the Veterans Court “exclusive jurisdiction
to review decisions of the Board,” and
38 U.S.C. § 7266(a)
sets the deadline by which a notice of appeal must be filed
at the court. Frankel, in addition to holding that a religious
marriage ceremony is irrelevant to determining eligibility
Case: 21-2332 Document: 18 Page: 4 Filed: 05/10/2022
4 DUMAINE v. MCDONOUGH
for spousal death pension benefits, establishes the proce-
dure by which a single Veterans Court judge would con-
sider and decide cases identified for summary disposition.
1 Vet. App. at 25–26. Here, the Veterans Court cited the
two statutes and Frankel to establish its jurisdiction over
the underlying Board decision and the appropriateness of
single-judge disposition, respectively. Dumaine,
2021 WL
2669283, at *1.
The remainder of Mr. Dumaine’s informal brief con-
sists of factual allegations directed to disputing the VA’s
position that Agent Orange was not used or stored at the
Korat base and to establishing the merits of his claim. Ap-
pellant’s Br. at 2; see also Appellant’s Reply Br. at 1–3. He
requests that we “overturn the VA’s decision in this mat-
ter” and direct the VA to award him a 60% disability rating
retroactive to 1967. Appellant’s Br. at 3. But the merits of
Mr. Dumaine’s claim are not on appeal and, in any event,
we lack jurisdiction over such a challenge. See
38 U.S.C.
§ 7292(d)(2). The same is true with respect to Mr. Du-
maine’s argument that “new and material evidence was
submitted” warranting reopening his claim. Appellant’s
Br. at 1. As we have previously held, this is “an issue that
is ‘either a factual determination [ ] or the application of
law to the facts of a particular case [ ] and is, thus, not
within this court’s appellate jurisdiction.’” Melo v. Wilkie,
742 F. App’x 502, 504 (Fed. Cir. 2018) (quoting Barnett v.
Brown,
83 F.3d 1380, 1383 (Fed. Cir. 1996)); see also
38 U.S.C. § 7292(d)(2).
CONCLUSION
For the foregoing reasons, we dismiss this appeal for
lack of jurisdiction.
DISMISSED
COSTS
No costs.
