Case: 20-1459 Document: 31 Page: 1 Filed: 08/20/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FREDERICK PAYNE,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1459
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3439, Chief Judge Margaret C.
Bartley, Judge Amanda L. Meredith, Senior Judge Robert
N. Davis.
______________________
Decided: August 20, 2020
______________________
FREDERICK PAYNE, Bellevue, NE, pro se.
RAFIQUE OMAR ANDERSON, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by ETHAN P. DAVIS, ALLISON KIDD-MILLER, ROBERT
EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, ANDREW J.
Case: 20-1459 Document: 31 Page: 2 Filed: 08/20/2020
2 PAYNE v. WILKIE
STEINBERG, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Before PROST, Chief Judge, REYNA and TARANTO, Circuit
Judges.
PER CURIAM.
Pro se Appellant Frederick Payne, a United States Air
Force veteran, appeals the decision of the United States
Court of Appeals for Veterans Claims that affirmed a de-
termination by the Board of Veterans’ Appeals denying an
increase in his disability rating for his service-connected
disabilities. Mr. Payne also raises new issues on appeal.
The resolution of the issues raised by Mr. Payne would re-
quire this court to reweigh the factual findings of the
Board, to engage in new factual findings, and review the
application of law to facts. While this court has jurisdiction
to review certain constitutional and legal issues, we are
statutorily prohibited from reviewing factual determina-
tions and the application of law to facts. 38 U.S.C.
§ 7292(d)(2). Therefore, we lack jurisdiction over Mr.
Payne’s challenges and dismiss this appeal.
BACKGROUND
A. Disability Compensation Claims
Mr. Payne served on active duty in the U.S. Air Force
from February 1980 to July 1992 as a communications sys-
tems maintenance technician. J.A. 204. On July 13, 1992,
he was honorably discharged for “permanent disability re-
tirement.” Id. In April 1993, a VA Regional Office (“RO”)
granted Mr. Payne’s claim for service-connected carpal
tunnel syndrome (“CTS”) of each hand. J.A. 24–32. Over
the years, Mr. Payne filed several claims and appeals, ulti-
mately leading to an increase of the initial disability rat-
ings for Mr. Payne’s right and left CTS to 50% and 40%,
respectively, both effective July 14, 1992, and a service-
Case: 20-1459 Document: 31 Page: 3 Filed: 08/20/2020
PAYNE v. WILKIE 3
connection award for hand-arm vibration syndrome
(“HAVS”). J.A. 90–99, 100–08. The procedural history of
Mr. Payne’s appeals spans over 27 years. We review only
the procedural history most relevant to this appeal.
B. Board Decision and Veterans Court Decision
On September 26, 2017, the Board of Veterans’ Appeals
(“Board”) denied a higher rating for Mr. Payne’s right and
left hand HAVS and CTS on both schedular and extra-
schedular bases. J.A. 165–203. Mr. Payne’s disabilities
were rated as a unit under diagnostic code 8515, based on
the Board’s factual finding that the symptoms of the two
conditions overlapped. The Board determined it lacked ju-
risdiction over the remaining issues in the case. Mr. Payne
appealed the Board decision to the U.S. Court of Appeals
for Veterans Claims (“Veterans Court”).
The Veterans Court affirmed in part, reversed in part,
and dismissed in part the Board’s decision. Important to
this appeal, the Veterans Court affirmed the Board’s deter-
mination that Mr. Payne was not entitled to an increase of
his disability rating for HAVS and CTS. In addition, the
Veterans Court reversed and remanded the Board’s deter-
mination that it lacked jurisdiction over the issues of enti-
tlement to special monthly compensation and a total
disability rating based on individual unemployability
(“TDIU”) prior to March 4, 2005. The Veterans Court dis-
missed, as abandoned, Mr. Payne’s appeal as to his entitle-
ment to TDIU after August 31, 2011 and to disability
compensation for a secondary condition of his service-con-
nected disabilities. Mr. Payne now appeals to this court.
ANALYSIS
Our jurisdiction to review decisions by the Veterans
Court is limited. See Wanless v. Shinseki, 618 F.3d 1333,
1336 (Fed. Cir. 2010). We have exclusive jurisdiction to re-
view and decide challenges to the validity of any statute or
regulation, or to any interpretation of statutory,
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4 PAYNE v. WILKIE
regulatory, or constitutional provisions to the extent such
provisions are presented and necessary to a decision. 38
U.S.C. § 7292(c). We lack jurisdiction to review challenges
to factual determinations, or challenges to the application
of law or regulation to the facts of a particular case, except
to the extent that an appeal from a Veterans Court decision
presents a constitutional issue. Id.; § 7292(d)(2). And
while we liberally construe pro se pleadings, like those
here, in favor of a pro se veteran, the veteran is still re-
quired to establish jurisdiction. See Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
In addition, the issue on appeal must have been finally
decided by the Veterans Court. See Arnesen v. Principi,
300 F.3d 1353, 1357 (Fed. Cir. 2002). Remand decisions by
the Veterans Court are not final for review purposes absent
three circumstances: “(1) there must have been a clear and
final decision of a legal issue that (a) is separate from the
remand proceedings, (b) will directly govern the remand
proceedings or, (c) if reversed by this court, would render
the remand proceedings unnecessary; (2) the resolution of
the legal issues must adversely affect the party seeking re-
view; and (3) there must be a substantial risk that the de-
cision would not survive a remand, i.e., that the remand
proceeding may moot the issue.” Id. (quoting Williams v.
Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002)).
A. Challenges to the Veterans Court’s Decision
First, Mr. Payne challenges the Board’s determination
that Mr. Payne was not entitled to a higher initial disabil-
ity rating. The Veterans Court correctly characterized Mr.
Payne’s challenge as going to the sufficiency of a medical
opinion, which is a finding of fact, over which we lack juris-
diction to review. J.A. 17. See 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.”).
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PAYNE v. WILKIE 5
Similarly, Mr. Payne argues that the Veterans Court
erred when it determined that Mr. Payne failed to demon-
strate that errors by the Board were prejudicial. Determi-
nation of prejudice constitutes case-specific applications of
judgment, based on the examination of the record. See
Shinseki v. Sanders, 556 U.S. 396, 407–10 (2009). Because
this determination involves the application of law to fact,
we lack jurisdiction to review these conclusions.
Mr. Payne also challenges the Veterans Court’s rever-
sal and remand of portions of the Board’s decision on
grounds that those matters are still pending before the
Board. This court has held that its jurisdiction generally
does not extend to determinations that are still pending be-
fore the Veterans Court or the Board because they lack fi-
nality. See Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir.
2006) (citing Williams, 275 F.3d at 1363 (Fed. Cir. 2002)).
While this court in Williams set out a narrow exception to
that rule, as set forth above, we do not find that such an
exception applies here. See Williams, 275 F.3d at 1364.
Because we find no reason to depart from the rule of final-
ity in this case, we dismiss Mr. Payne’s challenge to issues
that remain pending before the Board. See id. at 1363.
Finally, we also lack jurisdiction to review the Veter-
ans Court’s ruling that Mr. Payne abandoned the remain-
ing issues for failure to raise them in his opening brief. See
Andre v. Principi, 301 F.3d 1354, 1362–64 (Fed. Cir. 2002)
(holding that the Federal Circuit lacks jurisdiction over the
Veterans Court’s ruling that an issue is abandoned).
B. New Issues Raised on Appeal
As we understand his informal brief, Mr. Payne raises
several arguments that were not before the Veterans
Court. For example, Mr. Payne argues that the United
States Department of Veterans Affairs’ (“VA”) regulatory
prohibition on pyramiding, or evaluating the same disabil-
ity under various diagnosis, is either unlawful or was inap-
propriately applied to his case to deny separate ratings for
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6 PAYNE v. WILKIE
HAVS and CTS. App. Inf. Br. at 5–6, 10–12. He also ar-
gues that his constitutional due process rights were vio-
lated because his service medical records were excluded
from consideration by the VA in rating his hand and arm
condition, id. at 3, 16–25, and that the administrative rec-
ord is “missing key medical evidence.” Id. at 8–9.
In general, arguments not raised to the Veterans Court
are waived. See Forshey v. Principi, 284 F.3d 1335, 1355
(Fed. Cir. 2002) (en banc), superseded on other grounds by
statute, Veterans Benefits Act of 2002, Pub. L. No. 107-330,
§ 402(a), 116 Stat. 2820, 2832). Even if these arguments
were not waived, they either are plainly meritless or chal-
lenge determinations that we lack jurisdiction to review.
With respect to Mr. Payne’s argument that pyramiding
is unlawful, this court addressed the question in Amber-
man v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). The court
concluded that 38 C.F.R. § 4.14 intends that veterans are
compensated for functional loss but that separate diagno-
ses constitute the same disability if they have overlapping
symptomatology. Id. at 1380–81. To the extent Mr. Payne
argues that the statute was applied improperly to the facts
of his case, or that the Board erred in finding that his symp-
toms overlapped, this court does not have jurisdiction to
review this issue. See 38 U.S.C. § 7292(d)(2).
Next, Mr. Payne raises a “constitutional due process”
challenge alleging that the Board “excluded” his service
medical records from consideration or that the Board is
missing “key” evidence. App. Inf. Br. at 8–9, 18. However,
while Mr. Payne frames his argument as a constitutional
challenge, he is in fact challenging the Board’s weighing of
evidence in the record. The completeness of the record pre-
sents a question of fact outside of this court’s jurisdiction.
See Jones v. Wilkie, 918 F.3d 922, 927 (Fed. Cir. 2019); see
also Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
2007) (“There is a presumption that VA considered all of
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PAYNE v. WILKIE 7
the evidence of record.”). Accordingly, this court has no ju-
risdiction to reweigh the evidence before the Board.
Mr. Payne’s remaining new arguments involve factual
findings or application of law to facts. For reasons outlined
above, we dismiss those arguments as outside our jurisdic-
tion.
CONCLUSION
Each of Mr. Payne’s arguments on appeal are either
waived or directed to factual determinations or applica-
tions of law to fact that this court lack jurisdiction to re-
view. Pursuant to 38 U.S.C. § 7292(d)(2), we may not
consider these challenges. Accordingly, we dismiss the ap-
peal.
DISMISSED
COSTS
No costs.