NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-7046
CLIFFORD E. WADDELL,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: October 25, 2006
___________________________
Before BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.
PER CURIAM.
Appellant Clifford E. Waddell, a veteran, appeals from a decision of the Court of
Appeals for Veterans Claims (“the Veterans Court”). We dismiss the appeal for lack of
jurisdiction.
Mr. Waddell was assigned a disability rating of 10% for residual injury to his right
knee arising from an in-service accident. He appealed from the disability rating, and the
Board of Veterans’ Appeals ruled that a rating in excess of 10% was not warranted. In
the course of its opinion, the Board noted that the Veterans Claims Assistance Act
(“VCAA”) requires the Department of Veterans Affairs (“DVA”) to notify a claimant such
as Mr. Waddell of various details, including the evidence necessary to substantiate the
claim and which part of the evidence the VA will attempt to obtain on behalf of the
claimant. The Board concluded that Mr. Waddell had received the required notice in
various forms, including in a June 2001 letter that “provided detailed information
regarding the requirements of the VCAA.” In light of the information provided, the Board
concluded that Mr. Waddell “has received the notice and assistance contemplated by
law, and adjudication of the claim at this juncture poses no risk of prejudice” to him.
Mr. Waddell appealed to the Veterans Court, which affirmed the Board’s decision
in a one-judge memorandum decision. Most of the court’s opinion was directed to Mr.
Waddell’s claim that the Board erred in holding that he was not entitled to more than a
10% disability rating for his right-knee injury. In the course of its opinion, the court
noted that Mr. Waddell’s counsel had not asserted “with any degree of specificity, how
the [VCAA] notice was defective and how the lack of that notice affected the essential
fairness of the adjudication of his claim” (citing Mayfield v. Nicholson, 19 Vet. App. 103,
121 (2005)).
In his brief to this court, Mr. Waddell focuses mainly on the test adopted by the
Veterans Court for determining whether a failure to satisfy the VCAA’s notification
requirements constitutes prejudicial error. The Veterans Court, however, did not hold
that there was error in the VCAA notification given to Mr. Waddell. In fact, it pointed out
that Mr. Waddell had not even asserted with any specificity that his VCAA notice was
defective. Because Mr. Waddell’s argument as to the prejudicial-error issue does not
point to any aspect of the Veterans Court’s decision that is alleged to be based on a
misinterpretation of a law or regulation, or on an erroneous rule of law, Mr. Waddell’s
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arguments regarding harmless error in the context of the VCAA’s notification
requirements are not within this court’s appellate jurisdiction. See 38 U.S.C. § 7292(a).
Mr. Waddell also challenges the action of a DVA physician who requested
clarification of a medical opinion by another physician while the case was under review
before the agency. The Veterans Court held that there was nothing improper in the first
physician’s requesting and obtaining a clarification of the conclusions reached by the
second physician, who had examined Mr. Waddell. Because the court viewed the first
physician’s actions as being consistent with the pertinent DVA regulations, the court
concluded that they “did not violate Mr. Waddell’s rights under the VCAA and do not
invoke any requirement for an additional medical examination.” Mr. Waddell asserts
that the action “was prejudicial to the Claimant Appellant as a matter of law.”1
Mr. Waddell’s argument on this point does not include a challenge to the validity
or interpretation of any statute or regulation, nor does he challenge the Veterans Court’s
decision on a rule of law. Instead, his argument is simply that it was improper for the
agency physician to seek clarification of the examining physician’s opinion, at least in
the manner in which that was done in this case. That argument, however, calls for this
court to make factual determinations or to apply law to the particular facts of this case,
neither of which is within this court’s jurisdiction on appeal from decisions of the
1
In his reply brief, Mr. Waddell makes new arguments under SEC v. Chenery
Corp., 318 U.S. 80 (1943), regarding the request for clarification, but arguments made
for the first time in a reply brief are not properly before the court, and we therefore do
not address them. See Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir.
2002). And we find in the reply brief no persuasive arguments based on our opinion in
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), which we granted Mr. Waddell
permission to address in that brief.
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Veterans Court. See 38 U.S.C. § 7292(a), (d)(2). Mr. Waddell’s characterization of his
argument as claiming prejudice “as a matter of law” does not avoid this limitation on our
jurisdiction; it merely constitutes a claim that under the facts of this case, an adjudicator
should find that he was prejudiced. Because we lack jurisdiction to decide that issue,
we dismiss that portion of his appeal as well.
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