Case: 19-2009 Document: 37 Page: 1 Filed: 08/03/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DARYL R. BLANTON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2009
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3138, Judge Michael P. Allen.
______________________
Decided: August 3, 2020
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ERIC LAUFGRABEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by ETHAN P. DAVIS, ROBERT EDWARD KIRSCHMAN,
JR., LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, JONATHAN
KRISCH, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
Case: 19-2009 Document: 37 Page: 2 Filed: 08/03/2020
2 BLANTON v. WILKIE
______________________
Before REYNA, SCHALL, and STOLL, Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Daryl R. Blanton appeals the March 14, 2019 decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) in Blanton v. Wilkie, No. 17-3138,
2019
WL 1177988 (Vet. App. Mar. 14, 2019). In that decision,
the Veterans Court affirmed the May 24, 2017 decision of
the Board of Veterans’ Appeals (“Board”) that denied
Mr. Blanton an effective date earlier than April 14, 1998,
for a grant of service connection for a nervous condition.
J.A. 115. The Board did so because it found no clear and
unmistakable error (“CUE”) in the February 6, 1997 rating
decision that denied Mr. Blanton service connection for the
condition.
Id. For the reasons stated below, we affirm.
DISCUSSION
I.
In its decision, the Veterans Court held that Mr. Blan-
ton had failed to demonstrate error in the Board’s finding
that Mr. Blanton had not shown CUE in the 1997 rating
decision under the standard set forth in Russell v. Principi,
3 Vet. App. 310, 313–14 (1992) (en banc). The Veterans
Court recited the standard as follows:
CUE is established when (1) either the correct facts
as they were known at the time were not before the
adjudicator, the adjudicator made an erroneous
factual finding, or the statutory or regulatory pro-
visions extant at the time were incorrectly applied;
(2) the alleged error is “undebatable,” rather than
a mere “disagreement as to how the facts were
weighed or evaluated”; and (3) the error “mani-
festly changed the outcome” of the decision.
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BLANTON v. WILKIE 3
Blanton,
2019 WL 1177988, at *2 (footnote omitted) (quot-
ing
Russell, 3 Vet. App. at 313–14, 319).
II.
On appeal, Mr. Blanton makes two arguments. His
main argument is that “the decision of the Veterans Court
to affirm the Board’s adverse CUE decision is erroneous
because it relied upon a misinterpretation of the plain lan-
guage of the predicate [CUE] statute, 38 U.S.C. § 5109A.”
Appellant’s Br. 4. The basis for this argument is Mr. Blan-
ton’s claim that the CUE standard set forth in Russell no
longer should be followed because it was dicta and lacks
support in the statute.
Id. at 4–5, 7–25.
We need not decide, however, whether Russell’s articu-
lation of the requirements for establishing CUE was dicta.
The reason is that this court has adopted the Russell test
as controlling law. In Cook v. Principi,
318 F.3d 1334, 1345
(Fed. Cir. 2002) (en banc), we stated:
We conclude that decisions of this court and the
Veterans Court concluding that a clear and unmis-
takable error at the [Regional Office (“RO”)] level
must be outcome determinative and must be ap-
parent from the evidence of record at the time of
the original decision are supported by the language
of 38 U.S.C. § 5109A and its legislative history. We
therefore reject Mr. Cook’s request that we over-
turn existing law to that effect.
Id. (footnote omitted); see also Morris v. Shinseki,
678
F.3d 1346, 1351 (Fed. Cir. 2012); Willsey v. Peake,
535
F.3d 1368, 1371 (Fed. Cir. 2008); Natali v. Principi,
375
F.3d 1375, 1382 (Fed. Cir. 2004).
At oral argument, counsel for Mr. Blanton acknowl-
edged that, as a panel, we are bound by the en banc prece-
dent of Cook. Oral Arg. at 10:05–11:09,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=19-
2009.mp3. He also acknowledged that, for that reason, in
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4 BLANTON v. WILKIE
order for Mr. Blanton to succeed in his appeal, the full court
would have to reconsider Cook en banc and overrule it.
Id.
As a panel, we could recommend that course of action. See
Federal Circuit Rule 35(a)(1); Henderson v. Shinseki,
589
F.3d 1201, 1203 (Fed. Cir. 2009), rev’d,
562 U.S. 428 (2011).
We decline to do so, however. In Cook, we expressly stated
that we did not think a change with respect to the require-
ments for establishing CUE was
“warranted.” 318 F.3d at
1344.
III.
Mr. Blanton’s second argument on appeal is that, even
if the Russell test remains controlling law, we still should
reverse the decision of the Veterans Court. In making this
argument, Mr. Blanton states that the Veterans Court “er-
roneously affirmed the Board’s adverse decision based on
its misinterpretation of the specificity required to allege
CUE” as set out in Fugo v. Brown,
6 Vet. App. 40 (1993).
Appellant’s Br. 25. What we understand Mr. Blanton to be
referring to is the Veterans Court’s ruling that it would not
consider a new argument in support of his theory that in
1997 the RO misapplied the presumption of soundness.
The purported new argument was that a laceration on Mr.
Blanton’s arm was an in-service manifestation of a mental
disorder. In rejecting the argument, the court stated, “Ap-
pellant has not shown with the requisite degree of specific-
ity that this argument was asserted before the Board as a
reason that there was CUE in the 1997 RO decision based
on a misapplication of the presumption of soundness.”
2019 WL 1177988, at *3.
Mr. Blanton’s second argument rests on a challenge to
the Veterans Court’s application of the law of issue exhaus-
tion to the facts of his case. It thus amounts to an argu-
ment that is beyond the scope of our jurisdiction. See Scott
v. Wilkie,
920 F.3d 1375, 1377–78 (Fed. Cir. 2019) (reciting
jurisdictional limitations on Federal Circuit review of Vet-
erans Court decisions). We therefore cannot consider it.
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BLANTON v. WILKIE 5
CONCLUSION
For the foregoing reasons, the decision of the Veterans
Court affirming the decision of the Board is affirmed.
AFFIRMED
