NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHNNY R. WILLIAMS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7105
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2421, Judge Alan G. Lance, Sr.
______________________
Decided: December 15, 2015
______________________
JOHNNY R. WILLIAMS, Mansura, LA, pro se.
SOSUN BAE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN, JR., BENJAMIN C.
MIZER; Y. KEN LEE, JONATHAN ELLIOTT TAYLOR, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
2 WILLIAMS v. MCDONALD
Before O’MALLEY, PLAGER, and WALLACH, Circuit
Judges.
PER CURIAM.
Appellant Johnny R. Williams seeks review of the
June 15, 2015 decision of the Court of Appeals for Veter-
ans Claims (“Veterans Court”) affirming the July 10, 2015
decision of the Board of Veterans’ Appeals (“Board”). For
the reasons below, we dismiss Williams’ appeal for lack of
jurisdiction.
BACKGROUND
Williams served on active duty from July 1974 to
March 1976 and from April 1981 to September 1981.
Joint Appendix (“JA”) 55. Williams applied for entitle-
ment to service connection for (1) lung disease, (2) residu-
al disability as a result of stroke, and (3) a brain tumor,
claiming that these diseases resulted from his prior
asbestos exposure while in service. Williams also applied
for entitlement to service connection for depression and
hypertension. JA 7. Williams testified at two hearings,
before the Veterans Administration Regional Office (“RO”)
in March 2004 and before a Veterans Law Judge (“VLJ”)
from the Board in August 2005.
We briefly review the procedural posture of Williams’
present appeal. The Board initially denied Williams’
claims in May 2012, and the Veterans Court affirmed in a
June 2013 decision. JA 56. Subsequently, in August
2013, this Court implemented a remedial plan for the
Department of Veterans Affairs (“VA”). See Nat’l Org. of
Veterans Advocates, Inc. v. Sec’y of Veterans Affairs, 725
F.3d 1312 (Fed. Cir. 2013) (“NOVA”). As set forth in this
remedial plan, the VA agreed to, inter alia, move for
remand of appropriate cases in which an invalidated 2011
WILLIAMS v. MCDONALD 3
VA rule 1 had “eliminated veterans’ procedural due pro-
cess and appellate rights that were previously provid-
ed under 38 C.F.R. § 3.103.” Id. at 1313; see generally 38
C.F.R. § 3.103(a) (“Every claimant has the right to written
notice of the decision made on his or her claim, the right
to a hearing, and the right of representation.”).
Pursuant to the remedial plan, on October 23, 2013,
the VA moved for a voluntary remand of Williams’ case,
which we granted. Williams v. Shinseki, No. 2013-7115,
2014 WL 463017 (Fed. Cir. Oct. 23, 2013); JA 26-30.
Afterwards, on February 6, 2014, the Veterans Court
vacated the Board’s 2012 decision and remanded to the
Board for additional proceedings. JA8.
On remand, the Board sent written notice to Williams
explaining that “the May 31, 2012, Board decision may
have applied an invalidated rule relating to the duties of
the [VLJ] who presided at your Board hearing,” and
notified Williams that he “may choose to have a new
hearing at which [he would] also have the opportunity to
submit additional evidence.” JA 47. In May 2014, Wil-
liams responded, indicating that he did not “want to
appear at a new hearing.” JA 53.
Thereafter, the Board proceeded to adjudicate the
merits of Williams’ claims. Upon reviewing the evidence
and testimony from Williams’ prior hearings, the Board
denied Williams’ claims. JA 74. In its opinion dated July
10, 2014, the Board noted that, during Williams’ prior
hearings, the VLJ and the Decision Review Officer “asked
specific questions . . . directed at identifying the criteria
for service connection,” and “sought to identify any perti-
1 See Rules Governing Hearings Before the Agency
of Original Jurisdiction and the Board of Veterans’ Ap-
peals; Clarification, 76 Fed. Reg. 52,572 (Dep’t of Veter-
ans Affairs Aug. 23, 2011).
4 WILLIAMS v. MCDONALD
nent evidence not currently associated with the claims.”
JA 60. Moreover, the Board found that “the hearings
focused on the elements necessary to substantiate [Wil-
liams’] claims, and [Williams], through his testimony,
demonstrated that he had actual knowledge of the ele-
ments necessary to substantiate his claim.” Id. The
Board therefore concluded that Williams “is not shown to
be prejudiced,” and that “consistent with Bryant [v.
Shinseki, 23 Vet. App. 488 (2010),] the VLJ complied with
the duties set forth in 38 C.F.R. § 3.103(c)(2).” JA 60-61.
Williams requested reconsideration of the Board’s de-
cision, explaining that he had erred in deciding not to
request a new hearing, and that he had now changed his
mind and wanted a hearing. JA 77. The Board denied
Williams’ request for reconsideration on September 3,
2014, finding that Williams’ request “does not demon-
strate that the Board decision contains obvious error of
fact or law.” JA 80.
Williams then appealed to the Veterans Court, argu-
ing that the VA failed to satisfy its duty to assist, and
requested a new hearing. JA 8. The Veterans Court
found that, by providing Williams with notice and an
opportunity for a post-NOVA hearing, the Board “sub-
stantially complied with the Court’s remand.” Williams v.
McDonald, No. 14-2421 (Vet. App. June 15, 2015). Noting
that Williams had declined the opportunity for a new
hearing, the Veterans Court held that it had “no basis
upon which to disturb the Board’s decision” and that a
new hearing was not warranted. JA 8-9. Accordingly, the
Veterans Court affirmed the Board’s July 10, 2014 deci-
sion. JA 9. The Veterans Court also noted that it did not
have jurisdiction over the Board’s denial of Williams’
motion for reconsideration, since Williams did not allege
any new evidence or changed circumstances in his motion
for reconsideration. JA 9.
WILLIAMS v. MCDONALD 5
Williams now appeals the judgment of the Veterans
Court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We have 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.” Wanless v.
Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010) (citing 38
U.S.C. § 7292(c)). “Absent a constitutional issue, howev-
er, we lack the jurisdiction to ‘review (A) a challenge to a
factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.’”
Id. (quoting 38 U.S.C. § 7292(d)(2)).
Here, Williams asks us to “[p]lease review [38 C.F.R.
§] 3.103 . . . in my claim.” Appellant Br. at 1. The VA
responds that we lack jurisdiction over Williams’ claim
and that, even if we had jurisdiction, the VA fulfilled its
duties under the NOVA remedial plan and decisions.
Respondent Br. at 14 (citing Smith v. McDonald, 789 F.3d
1331, 1335 (Fed. Cir. 2015) (holding that the VA had
satisfied its duties under the NOVA remedial plan by
filing a joint motion for the Veterans Court to remand the
veteran’s case to the board, even though the Veterans
Court had denied the motion)).
We agree with the VA that we lack jurisdiction over
Williams’ appeal. Though Williams asks us to review
§ 3.103, we note that the Veterans Court did not interpret
that regulation in adjudicating Williams’ appeal. Wil-
liams’ dispute over the correctness of the Veterans Court’s
judgment therefore does not raise a challenge regarding
“the validity of any statute or regulation or any interpre-
tation thereof,” nor does Williams contest the interpreta-
tion of any constitutional or statutory provision. See 38
U.S.C. § 7292(c). He merely disagrees with the Veterans
6 WILLIAMS v. MCDONALD
Court’s refusal to accede to Williams’ belated request for a
new hearing. That judgment does not concern any issue
over which we have jurisdiction. See Githens v. Shinseki,
676 F.3d 1368, 1372 (Fed. Cir. 2012) (“We have no juris-
diction over an issue of interpretation that does not
exist.”).
The Veterans Court’s decision on appeal was limited
to a determination of whether the Board had “substantial-
ly complied” with the Veterans Court’s February 2014
remand order, in view of the fact that Williams declined
the opportunity for a hearing in the first instance. JA 9.
Though Williams does not specify his grounds for appeal,
he appears to argue that the Veterans Court should have
found that the Board, in declining to provide Williams a
hearing once he changed his mind with respect to his
desire for one, failed to comply with its obligations under
§ 3.103. This issue, however, is directed to the application
of law to the facts of a particular case, and is thus outside
the scope of our review. See 38 U.S.C. § 7292(d)(2).
Accordingly, we lack jurisdiction over Williams’ appeal.
CONCLUSION
Williams’ appeal arises from a judgment in which the
Veterans Court merely applied the law “to the facts of a
particular case,” which is a matter over which we lack
jurisdiction. See Wanless, 618 F.3d at 1336. We therefore
must dismiss Williams’ appeal.
DISMISSED