Case: 19-2380 Document: 39 Page: 1 Filed: 11/10/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EARNEST ELLIOTT, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2380
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3676, Senior Judge Robert N.
Davis.
______________________
Decided: November 10, 2020
______________________
HAROLD HAMILTON HOFFMAN, III, Veterans Legal Ad-
vocacy Group, Arlington, VA, for claimant-appellant. Also
represented by EVAN TYLER SNIPES.
ERIC JOHN SINGLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.; BRIAN D. GRIFFIN, ANDREW J. STEINBERG,
Case: 19-2380 Document: 39 Page: 2 Filed: 11/10/2020
2 ELLIOTT v. WILKIE
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before LOURIE, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
Earnest Elliott, Jr. appeals from the judgment of the
United States Court of Appeals for Veterans Claims (the
“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (the “Board”) denying Elliott’s claim of
clear and unmistakable error in a 1999 Department of Vet-
erans Affairs regional office (“RO”) claim decision. See El-
liott v. Wilkie, No. 17-3676,
2019 WL 3403587 (Vet. App.
July 29, 2019). Because Elliott only challenges the Veter-
ans Court’s factual determinations and application of law
to the facts, this appeal falls outside our jurisdiction. We
therefore dismiss Elliott’s appeal.
BACKGROUND
Elliott served in the military from February 1990 to
April 1998. Doctors diagnosed him with a grade III left
acromioclavicular (“AC”) joint separation after a January
1997 car accident. In February 1997, a medical examiner
found Elliott fit for duty, noting that the left AC joint was
non-tender and the injury asymptomatic. A medical record
from October 1997 indicates that Elliott reported no shoul-
der pain and had no residual defects. A January 1998 med-
ical record notes Elliott’s report of shoulder pain after
sports activity. A doctor prescribed limited duty, noting
abduction strength loss.
Elliott was discharged in April 1998. In May 1998, El-
liott filed a claim for service-connected disability compen-
sation. A June 1998 medical record notes normal range of
left shoulder motion as well as Elliott’s complaints of
numbness and tingling in his left arm, cold weather stiff-
ness, collarbone pain, and pain on palpitation of the
Case: 19-2380 Document: 39 Page: 3 Filed: 11/10/2020
ELLIOTT v. WILKIE 3
collarbone. In February 1999, the RO awarded service con-
nection for residuals of the left shoulder condition but as-
signed a noncompensable rating under diagnostic code
5203.
In November 2010, Elliott filed a claim of clear and un-
mistakable error in the RO’s 1999 decision regarding the
noncompensable rating. The RO denied Elliott’s claim. El-
liott then appealed to the Board, and the Board affirmed
on September 19, 2017. Elliott appealed the Board’s 2017
decision and the Veterans Court affirmed, finding no clear
and unmistakable error in the RO’s 1999 decision as to the
noncompensable disability rating for the left shoulder con-
dition. Elliott timely appealed to this court.
DISCUSSION
Our jurisdiction to review a judgment of the Court of
Appeals for Veterans Claims, as set forth in
38 U.S.C.
§ 7292, is limited. Wanless v. Shinseki,
618 F.3d 1333,
1336 (Fed. Cir. 2010). We have jurisdiction to 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 [Veterans] Court in making the
decision.”
38 U.S.C. § 7292(a). Unless a constitutional is-
sue is presented, however, this court may not review “a
challenge to a factual determination, or . . . a challenge to
a law or regulation as applied to the facts of a particular
case.”
38 U.S.C. § 7292(d)(2); see Wanless,
618 F.3d at
1336.
Elliott asserts that this court has jurisdiction to hear
this appeal under
38 U.S.C. § 7292(a) based on several al-
leged questions of law. Elliott first argues that the Veter-
ans Court exceeded its harmless error review scope
authority under
38 U.S.C. § 7261(b)(2) by making medical
determinations, creating a presumption of healing, and
finding extra-record facts. Elliott next alleges that the Vet-
erans Court violated 38 U.S.C. § 5109A and 38 C.F.R.
Case: 19-2380 Document: 39 Page: 4 Filed: 11/10/2020
4 ELLIOTT v. WILKIE
§ 3.105 by misinterpreting what constitutes a “current dis-
ability” under
38 U.S.C. § 1110 when the Veterans Court
considered medical exams predating the disability rating
period. Elliott further argues that the Veterans Court al-
lowed misapplication of pain regulations in 1999 and there-
fore also in this case, citing
38 C.F.R. § 4.71a and
38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.56, and 4.59. The government re-
sponds that the issues raised on appeal are not within the
jurisdiction of this court but instead concern a factual dis-
pute: disagreement with how the RO weighed the evidence.
We agree with the government that we lack jurisdic-
tion to hear Elliott’s appeal. The Veterans Court did not
interpret
38 U.S.C. § 7261(b)(2), 38 U.S.C. § 5109A, or
38
C.F.R. § 3.105 in its decision. Rather, it merely applied the
law to the facts of the case. While Elliott believes that he
submitted sufficient evidence to establish clear and unmis-
takable error, the RO, Board, and Veterans Court did not.
This amounts to a dispute over how the evidence was
weighed. Elliott’s argument thus does not present an issue
on appeal over which we may exercise jurisdiction. See
38
U.S.C. § 7292(d)(2).
Similarly, we find unpersuasive Elliott’s argument re-
garding misapplication of
38 C.F.R. § 4.71a and
38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.56, and 4.59. Elliott challenges the
regulations as applied to the facts of his case. This argu-
ment for jurisdiction of this court also fails. See
38 U.S.C.
§ 7292(d)(2).
CONCLUSION
We have considered Elliott’s remaining arguments but
find them unpersuasive. For the reasons stated above, we
dismiss Elliott’s appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
