Case: 23-2079 Document: 16 Page: 1 Filed: 12/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERTO R. HERRERA, JR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2079
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-2457, Senior Judge Mary J.
Schoelen.
______________________
Decided: December 7, 2023
______________________
ROBERTO R. HERRERA, JR., San Antonio, TX, pro se.
MATNEY ELIZABETH ROLFE, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, BENJAMIN
ISAAC HERSKOVITZ, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
Case: 23-2079 Document: 16 Page: 2 Filed: 12/07/2023
2 HERRERA v. MCDONOUGH
______________________
Before LOURIE, PROST, and REYNA, Circuit Judges.
PER CURIAM.
Roberto Herrera, a veteran, appeals pro se a decision
of the United States Court of Appeals for Veterans Claims.
The Veterans Court affirmed the Board of Veterans’ Ap-
peals’ finding that Mr. Herrera was not entitled to a rating
in excess of ninety percent for bilateral hearing loss or an
effective date earlier than January 9, 2018 for that ninety
percent rating. Because we lack jurisdiction to decide the
issues that Mr. Herrera raises or they are otherwise too
underdeveloped for us to review, we dismiss his appeal.
BACKGROUND
Mr. Herrera served in the United States Marine Corps
from February 1969 to January 1971. Herrera v.
McDonough, No. 22-2457,
2023 WL 1954683, at *1 (Vet.
App. Feb. 13, 2023) (“Decision”). He was first granted a
service connection for bilateral hearing loss in March 2004.
Id.
In January 2018, an audiologist for the United States
Department of Veterans Affairs (“VA”) examined Mr. Her-
rera. Id. at *2. Based on the results of that examination,
the VA increased Mr. Herrera’s disability rating for bilat-
eral hearing loss to ninety percent, effective January 9,
2018. Id. Mr. Herrera timely challenged that decision and,
after the VA again denied his request for an increased rat-
ing and earlier effective date, he appealed to the Board of
Veterans’ Appeals (“Board”). Id.
The Board reached the same conclusion as the VA. Id.
at *2–3. It found that Mr. Herrera had not met the criteria
to support a disability rating of more than ninety percent
bilateral hearing loss. Id. It also found the January 2018
report did not specify when symptoms started, such that it
Case: 23-2079 Document: 16 Page: 3 Filed: 12/07/2023
HERRERA v. MCDONOUGH 3
would be “‘speculative’ to ascertain when the increased dis-
ability began.” Id. at *3.
On appeal, the United States Court of Appeals for Vet-
erans Claims (“Veterans Court”) issued a single-judge
memorandum decision affirming the Board. Id. at *1. Two
months later, the Veterans Court granted Mr. Herrera’s
motion for a panel decision and adopted the single-judge
decision as the decision of the panel. Appx16–17. 1 Mr.
Herrera then filed a motion under Rule 35(c) of the Veter-
ans Court’s Rules of Practice and Procedure (“Veterans
Court Rules”) for Full Court Review, challenging both the
single-judge and panel decisions. See Appx18. The Veter-
ans Court denied his request. Id. This appeal followed.
STANDARD OF REVIEW
Our jurisdiction in cases from the Veterans Court is
limited by statute. Wanless v. Shinseki,
618 F.3d 1333,
1336 (Fed. Cir. 2010). We may “decide all relevant ques-
tions of law, including interpreting constitutional and stat-
utory provisions.”
38 U.S.C. § 7292(d)(1). Absent a
constitutional issue, we “may not review (A) a challenge to
a factual determination, or (B) a challenge to a law or reg-
ulation as applied to the facts of a particular case.”
Id.
§ 7292(d)(2).
DISCUSSION
On appeal, Mr. Herrera appears to raise two overarch-
ing issues, both related to his denied request for review by
the full Veterans Court. First, Mr. Herrera apparently ar-
gues that full court review was required because the single-
judge and panel decisions “overlooked a fact and point of
law prejudicial to the outcome of the appeal.” Informal
1 “Appx” refers to the appendix submitted with the
Response Brief filed by the government on behalf of the VA.
Case: 23-2079 Document: 16 Page: 4 Filed: 12/07/2023
4 HERRERA v. MCDONOUGH
Opening Br. 1. Second, Mr. Herrera includes language in
the caption of his informal reply brief stating, “RICO Con-
spiracy based on Official Misconduct & allege accomplice &
co-conspirators.” Informal Reply Br. 1. Mr. Herrera ap-
pears to contend that the judges of the Veterans Court have
a “pattern [and] practice” of denying Rule 35(c) motions for
full Veterans Court review, amounting to “errant judge ju-
dicial misbehavior” that should be “subject to RICO re-
view.” Id. at 7–8.
All of Mr. Herrera’s arguments appear to be based on
the application of Veterans Court Rule 35. That rule per-
mits litigants to file Motions for Full Court Review of a sin-
gle-judge or panel decision. Vet. App. R. 35(c). But motions
for full court review are “not favored” and “will not be
granted unless such action is necessary to secure or main-
tain uniformity of the Court’s decisions or to resolve a ques-
tion of exceptional importance.” Id. A party wishing to file
a Veterans Court Rule 35 motion must include a support-
ing argument that states the “points of law or fact that the
party believes the Court has overlooked or misunderstood.”
Id. at Rule 35(e)(1).
We lack jurisdiction to consider Mr. Herrera’s argu-
ments regarding the Veterans Court’s application of its
Rule 35 in his case. Absent a constitutional issue, we may
not review a challenge to the Veterans Court’s application
of a law or regulation to the facts of a particular case.
38
U.S.C. § 7292(d)(2). And we have previously concluded
that denial of such requests does not violate due process.
Arnesen v. Principi,
300 F.3d 1353, 1360–61 (Fed. Cir.
2002).
Mr. Herrera asserts there were “overlooked facts” and
proceeds to quote from various sources. We are unable to
discern from his informal briefs what points of law or fact
he believes were overlooked or misunderstood by the Vet-
erans Court and find this argument must fail. See, e.g.,
Informal Br. 2. Moreover, even if we were able to discern
Case: 23-2079 Document: 16 Page: 5 Filed: 12/07/2023
HERRERA v. MCDONOUGH 5
what facts were overlooked, review of them would also in-
volve application of law to fact that we may not do.
38
U.S.C. § 7292(d)(1)
Mr. Herrera’s judicial misconduct challenge also fails.
The crux of Mr. Herrera’s argument appears to be that the
Veterans Court has conspired to deny full court review of a
collection of cases, including his, filed pro se by a group of
Texas veterans. Informal Reply Br. 7. But merely stating
disagreement with a lower court’s decisions, with no sup-
porting evidence, does not amount to a developed argument
to support a claim. Monsanto Co. v. Scruggs,
459 F.3d
1328, 1341 (Fed. Cir. 2006); see also Gelb v. Dept. of Veter-
ans Affs., No. 2023-1157,
2023 WL 3493702, at *7 n.6 (Fed.
Cir. May 17, 2023) (nonprecedential). Even if we liberally
construe Mr. Herrera’s claim as one that the Veterans
Court is misinterpreting Veterans Court Rule 35(c) in
these cases, Mr. Herrera provides inadequate basis to sup-
port such a serious charge. Again, Veterans Court
Rule 35(c) presents a high bar before the Veterans Court
will agree that a “not favored” motion for full court review
must be granted. Mr. Herrera fails to allege any facts that
would reasonably support a claim of judicial misconduct in
the Veterans Court’s determinations that this high bar was
not met in his referenced cases.
To the extent Mr. Herrera has characterized any argu-
ments as constitutional, this does not cure the jurisdic-
tional deficiency of his appeal. Mr. Herrera’s informal
brief, for example, checks the box stating that the Veterans
Court decided a constitutional issue and asserts that an
unspecified party or parties has “prevent[ed] WestLaw
publication” of complaints against federal judges. Informal
Opening Br. 2. But simply labeling contentions as consti-
tutional “does not confer upon us jurisdiction that we oth-
erwise lack.” Helfer v. West,
174 F.3d 1332, 1335 (Fed. Cir.
1999). We discern no constitutional issue that would be
appropriate for resolution in Mr. Herrera’s appeal.
Case: 23-2079 Document: 16 Page: 6 Filed: 12/07/2023
6 HERRERA v. MCDONOUGH
CONCLUSION
We have considered Mr. Herrera’s remaining argu-
ments and find them unpersuasive. For the reasons stated,
the appeal is dismissed, including for lack of jurisdiction.
DISMISSED
COSTS
No costs.
