Case: 20-1968 Document: 16 Page: 1 Filed: 12/08/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANIEL C. VALENZUELA,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1968
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-3966, Judge Joseph L. Falvey,
Jr.
______________________
Decided: December 8, 2020
______________________
DANIEL C. VALENZUELA, Bulverde, TX, pro se.
SEAN LYNDEN KING, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, ERIC P. BRUSKIN, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Case: 20-1968 Document: 16 Page: 2 Filed: 12/08/2020
2 VALENZUELA v. WILKIE
Before DYK, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Daniel C. Valenzuela appeals a decision of the United
States Court of Appeals for Veteran Claims (“Veterans
Court”). The Veterans Court affirmed a decision of the
Board of Veterans’ Appeals (“Board”), denying him entitle-
ment to service connection for carpal tunnel syndrome of
the right wrist and finding no clear and unmistakable error
in a 2005 Department of Veterans Affairs (VA) regional of-
fice (RO) decision that denied him entitlement to service
connection for carpal tunnel syndrome of the left wrist, tin-
nitus, and a cervical spine condition. Because we lack ju-
risdiction to review the issues Mr. Valenzuela raises in this
appeal, we dismiss.
BACKGROUND
Mr. Valenzuela served on active duty in the Marine
Corps from May 1976 to May 1980. In 2005, Mr. Valen-
zuela filed a claim for service connection for tinnitus, left
carpal tunnel syndrome, and a cervical spine condition. In
June 2005, the RO denied these claims. RO concluded that
there was (1) no evidence of an event, injury, or symptoms
during service; (2) a normal separation examination; and
(3) no medical complaint for many years after his service.
The RO noted that Mr. Valenzuela was diagnosed with
“spondylosis, osteophytes, and disc protrusion of the cervi-
cal spine” in March 2005, but found no evidence connecting
this condition to his service. Mr. Valenzuela did not appeal
the 2005 RO decision, and it became final.
In May 2015, Mr. Valenzuela filed a motion for revision
of the 2005 RO decision based on clear and unmistakable
error (“CUE”). He argued that VA had failed to provide
adequate medical examinations, to obtain service records
to verify chemicals used during his period of service, and to
properly consider purported evidence of a spine injury in
service. Mr. Valenzuela also filed a new claim for right
Case: 20-1968 Document: 16 Page: 3 Filed: 12/08/2020
VALENZUELA v. WILKIE 3
carpal tunnel syndrome. In 2016, the RO denied both Mr.
Valenzuela’s motion to revise the 2005 RO decision on
grounds of CUE and his new claim for service connection
for right carpal tunnel syndrome.
Mr. Valenzuela appealed to the Board, which in May
2019 issued a decision finding no CUE in the 2005 RO de-
cision and denying service connection for right carpal tun-
nel syndrome. 1 The Board concluded that Mr. Valenzuela’s
arguments were insufficient to support a finding of CUE.
The Board wrote that “the failure of VA to fulfill the duty
to assist, including obtaining a VA examination or opinion
is not CUE,” and that “weighing the lack of evidence of cer-
vical spine, [carpal tunnel syndrome], and tinnitus disabil-
ities in service treatment records more heavily than other
evidence, including the medical notes of a lumbar spine dis-
order, is also not CUE.” The Board also affirmed the denial
of service connection for right carpal tunnel syndrome be-
cause there was no evidence of a diagnosis of right carpal
tunnel syndrome.
Mr. Valenzuela appealed to the Veterans Court, which
affirmed the Board in March 2020. The Veterans Court
found no error in the Board’s CUE determination and held
that there was “no evidence in the 2005 record that would
show a nexus between the claimed disability and service.”
The Veterans Court also affirmed the denial of Mr. Valen-
zuela’s new claim for right carpal tunnel syndrome, finding
1 Before the Board, in addition to his CUE claims,
Mr. Valenzuela “also raise[d] new claims for service con-
nection for a cervical spine disorder, tinnitus, and left [car-
pal tunnel syndrome].” The Board referred these new
claims to the RO for consideration. The decision of the Vet-
erans Court did not discuss these new claims or their refer-
ral to the RO, and they are not properly before this court
on appeal.
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4 VALENZUELA v. WILKIE
no error in the Board’s conclusion that Mr. Valenzuela did
not have a current diagnosis for right carpal tunnel syn-
drome. Mr. Valenzuela appealed to this court.
DISCUSSION
We have limited jurisdiction to review decisions by the
Veterans Court. Wanless v. Shinseki,
618 F.3d 1333, 1336
(Fed. Cir. 2010). We “have exclusive jurisdiction to review
and decide any challenge to the validity of any statute or
regulation or any interpretation thereof . . . and to inter-
pret constitutional and statutory provisions, to the extent
presented and necessary to a decision.”
38 U.S.C.
§ 7292(c). We cannot, however, review “a challenge to a
factual determination” or “a challenge to a law or regula-
tion as applied to the facts of a particular case” absent a
constitutional issue.
Id. § 7292(d)(2); Saunders v. Wilkie,
886 F.3d 1356, 1360 (Fed. Cir. 2018) (“Absent a constitu-
tional issue . . . we lack jurisdiction to review factual deter-
minations or the application of law to the particular facts
of an appeal from the Veterans Court.”).
In his informal brief, Mr. Valenzuela challenges the de-
termination that the 2005 RO decision did not contain
CUE. As we have explained:
In order to revise a final VA decision on account of
CUE, the following must be demonstrated:
1) Either the correct facts, as they were known at
the time, were not before the adjudicator or the
statutory or regulatory provisions extant at the
time were incorrectly applied,
2) The error must be “undebatable” and the sort
“which, had it not been made, would have mani-
festly changed the outcome at the time it was
made,” and
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VALENZUELA v. WILKIE 5
3) A determination that there was CUE must be
based on the record and the law that existed at the
time of the prior adjudication in question.
Morris v. Shinseki,
678 F.3d 1346, 1351 (Fed. Cir. 2012)
(citing Willsey v. Peake,
535 F.3d 1368, 1371 (Fed. Cir.
2008)). Mr. Valenzuela appears to argue that the 2005 RO
decision involved a violation of the duty to assist, but this
argument is unavailing, as “a breach of the duty to assist
cannot constitute CUE.” Cook v. Principi,
318 F.3d 1334,
1346 (Fed. Cir. 2002); see also Robinson v. Shinseki,
557
F.3d 1355, 1360 (Fed. Cir. 2009).
Mr. Valenzuela asserts that the Veterans Court’s deci-
sion in other respects involved the validity or interpreta-
tion of a statute or regulation and that the Veterans Court
decided constitutional questions. The substance of his ar-
gument, however, appears to dispute only the factual de-
terminations in the 2005 RO decision, without actually
raising a statutory or constitutional issue. Similarly, Mr.
Valenzuela asserts no legal issue concerning the rejection
of his 2015 claim for right carpal tunnel syndrome. We
therefore lack jurisdiction over this appeal. See
38 U.S.C.
§ 7292(d)(2).
DISMISSED
COSTS
No costs.
