Browder v. Wilkie

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOE A. BROWDER, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2017-2626
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4329, Judge Mary J. Schoelen,
Judge Margaret C. Bartley, Senior Judge Kenneth B.
Kramer.
______________________
Decided: May 1, 2018
______________________
JOE A. BROWDER, JR., Louisville, KY, pro se.
ALISON VICKS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., MARTIN F.
HOCKEY, JR.; BRIAN D. GRIFFIN, SAMUEL PEARSON-MOORE,
2 BROWDER v. WILKIE
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before WALLACH, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Appellant Joe A. Browder, Jr., appeals a memoran-
dum decision of the U.S. Court of Appeals for Veterans
Claims (“Veterans Court”) affirming the decision of the
Board of Veterans’ Appeals (“the Board”), which denied
Mr. Browder’s request to reopen a previously-denied claim
for hypertension; entitlement to special monthly compen-
sation; and entitlement to service-connected benefits for
flat feet, psychiatric disorder (other than post-traumatic
stress disorder), insomnia, and headaches. See Browder
v. Shulkin, No. 15-4329, 2017 WL 2569870, at *1, *3–6
(Vet. App. June 14, 2017). Because we lack jurisdiction
over Mr. Browder’s appeal, we dismiss.
JURISDICTION
For appeals from the Veterans Court, we “have exclu-
sive jurisdiction to review and decide any challenge to the
validity of any statute or regulation or any interpretation
thereof . . . , and to interpret constitutional and statutory
provisions.” 38 U.S.C. § 7292(c) (2012); see Goodman v.
Shulkin, 870 F.3d 1383, 1385 (Fed. Cir. 2017). “Except to
the extent that an appeal . . . presents a constitutional
issue,” we “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).
We do not possess jurisdiction over Mr. Browder’s
claims. First, Mr. Browder raises several factual chal-
lenges, which we cannot review. See id. For example, Mr.
Browder argues the Veterans Court erred in affirming the
Board’s decision to “disregard evidence” attached to a
BROWDER v. WILKIE 3
certain regulatory waiver. See Appellant’s Br. 1; see also
38 C.F.R. § 20.1304(c) (2016) (“Any pertinent evidence
submitted by the appellant . . . must be referred to the
agency of original jurisdiction for review, unless this
procedural right is waived by the appellant . . . .” (empha-
sis added)). However, he does not challenge the Veterans
Court’s interpretation that a § 20.1304(c) waiver
“appl[ies] to evidence, not claims,” Browder, 2017 WL
2569870, at *2, and instead attacks the application of the
regulation to his factual circumstance, see Reply Br. 2
(alleging the Veterans Court’s finding on waiver “was
patently false”). “We do not have authority to review” Mr.
Browder’s challenge to “the application of law to particu-
lar facts.” Arnesen v. Principi, 300 F.3d 1353, 1357 (Fed.
Cir. 2002).
Similarly, Mr. Browder argues the Veterans Court
erred in allowing the Department of Veterans Affairs
(“VA”) to request an additional medical examination. See
Appellant’s Br. 2. However, he does not challenge the
validity or interpretation of the relevant statute or regu-
lation. See 38 U.S.C. § 5103A(d)(1) (acknowledging that
the Secretary of the VA may help a claimant by “provid-
ing a medical examination or obtaining a medical opinion
when such an examination or opinion is necessary to
make a decision”); 38 C.F.R. § 3.304(c) (“The development
of evidence in connection with claims for service connec-
tion will be accomplished when deemed necessary . . . .”
(emphasis added)). See generally Appellant’s Br. Instead,
Mr. Browder challenges only the application of that
statute and regulation to the facts here, which we may
not review. See Arnesen, 300 F.3d at 1357.
Mr. Browder also argues that a VA reviewing officer
and a VA medical examiner either “misstated” his diagno-
ses by improperly weighing his medical evidence or by
“failing to account for the etiology and progres-
sion/remission” of his disorders. Appellant’s Br. 2; cf.
Reply Br. 1 (contending “the [Veterans] Court never had
4 BROWDER v. WILKIE
the facts” based on a regional officer’s and the Board’s
“misapplication[] and deliberate misquot[ation] of” the
facts (emphasis added)), 2–3 (stating that “[m]y argu-
ment . . . is that the [Veterans] Court ignored [a certain]
fact,” that the Veterans Court “wrongfully discount[ed]”
other facts, and “[t]he Board failed to properly weigh the
evidence” (emphases added)). These are factual issues
that we “lack jurisdiction to review.” Bastien v. Shinseki,
599 F.3d 1301, 1306 (Fed. Cir. 2010); see id. (“The evalua-
tion and weighing of evidence and the drawing of appro-
priate inferences from it are factual determinations
committed to the discretion of the fact-finder.”); see also
Prinkey v. Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013)
(“[T]he sufficiency of a medical opinion is a matter beyond
our jurisdictional reach[] because the underlying question
is one of fact.”).
Second, Mr. Browder characterizes certain arguments
as raising constitutional issues, without further explana-
tion. See Appellant’s Br. 1 (referencing “Constitutional
rights to due process of law and equal protection under
the laws” in reference to the Veterans Court’s determina-
tion not to grant further review), 2 (mentioning “Due
Process” regarding the Board’s so-called “duty to assist in
ordering [s]upplemental [s]tatement(s) of the [c]ase(s)”).
We conclude these challenges are “constitutional in name
only,” such that Mr. Browder’s “characterization . . . does
not confer upon us jurisdiction that we otherwise lack.”
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). To
the extent that Mr. Browder challenges the constitution-
ality of the Veterans Court’s denial of his request for “full-
court review” and “panel review,” Appellant’s Br. 1, we
have previously held that “[Veterans Court] Rule 35
establishes a procedure for requesting panel and then full
court review of a single judge decision” and “[d]enial of
BROWDER v. WILKIE 5
such requests does not of itself violate due process.”
Arnesen, 300 F.3d at 1360. 1
CONCLUSION
We have considered Mr. Browder’s remaining argu-
ments and find them unpersuasive. Accordingly, Mr.
Browder’s appeal from the U.S. Court of Appeals for
Veterans Claims is
DISMISSED
COSTS
Each party shall bear its own costs.
1 Mr. Browder also argues that the VA “arbitrarily
lower[ed his] disability rating without good cause [or] an
intervening examination.” Appellant’s Br. 1; see Reply
Br. 3 (similar). As the Veterans Court explained, the VA
reduced Mr. Browder’s “disability rating for major depres-
sive disorder with psychosis from 100% to 70% for non-
service-connected pension purposes” but “[t]hat issue was
not before the Board,” such that the Veterans Court “lacks
jurisdiction over it.” Browder, 2017 WL 2569870, at *5.
Mr. Browder does not challenge this finding.