Case: 20-1536 Document: 29 Page: 1 Filed: 09/03/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERWOOD BROWN,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1536
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-2926, Judge Joseph L. Falvey,
Jr.
______________________
Decided: September 3, 2020
______________________
SHERWOOD BROWN, Oklahoma City, OK, pro se.
ASHLEY AKERS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
ETHAN P. DAVIS, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Case: 20-1536 Document: 29 Page: 2 Filed: 09/03/2020
2 BROWN v. WILKIE
Before DYK, SCHALL, and REYNA, Circuit Judges.
PER CURIAM.
Sherwood Brown appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”), finding that Mr. Brown had disclaimed any chal-
lenge to the Board of Veterans’ Appeals (“Board”) decision
from which he had appealed. We dismiss the appeal for
lack of jurisdiction.
BACKGROUND
Mr. Brown served in the Navy from August 1960 to
February 1961. Mr. Brown was awarded benefits for ser-
vice-connected bilateral osteochondritis of the knees effec-
tive September 1, 1994, service-connected degenerative
joint disease of the lumbar spine effective November 8,
2000, and a total disability rating based on individual un-
employability as a result of service-connected disabilities
(TDIU) effective September 1, 1994. Mr. Brown has not
been awarded benefits based on a finding of a service-con-
nected condition for his feet.
In July 2014, a Veterans Affairs regional office (“RO”)
issued a rating decision that addressed Mr. Brown’s knees,
back, and feet. The July 2014 rating decision did not assign
a new effective date for Mr. Brown’s service connection for
his knees or back and did not award Mr. Brown service con-
nection for his feet. In a letter dated July 25, 2014, the RO
notified Mr. Brown of the rating decision and advised him
that in order to seek review from the Board, any Notice of
Disagreement (“NOD”) would have to be postmarked
within one year of the decision, here no later than July 25,
2015. Mr. Brown did not file a notice of appeal within the
one-year period.
Case: 20-1536 Document: 29 Page: 3 Filed: 09/03/2020
BROWN v. WILKIE 3
On December 28, 2015, well after the one-year period,
Mr. Brown submitted a NOD to the Board, seeking a com-
bined rating of 50 percent for disabilities of the knees, back,
and feet, for the period from April 1961 to September 1994.
On October 17, 2017, the Board found that the December
28, 2015, NOD “did not address any issue on which
[Mr. Brown] received notice of a decision one year prior to”
the date of submission and instead appeared to address is-
sues in the July 2014 rating decision. App’x 5. 1 The Board
therefore dismissed Mr. Brown’s NOD as untimely under
38 U.S.C. § 7105.
Mr. Brown appealed the October 17, 2017, Board deci-
sion to the Veterans Court. The Veterans Court twice or-
dered Mr. Brown to submit a brief “telling the Court what
he believe[d] [was] wrong with the October 17, 2017[,]
Board decision.” App’x 10–11. In response to the second
request, Mr. Brown replied with a note written on a copy of
the Veterans Court’s second order that read, “Nothing, Not
being appealed by veteran.” App’x 11 (emphasis omitted).
The Veterans Court dismissed the appeal for lack of ju-
risdiction, finding that “Mr. Brown ha[d] plainly indicated
that he [did] not wish to appeal the decision from which he
originally filed a[] [Notice of Appeal (“NOA”)].” Id.
Mr. Brown appeals.
DISCUSSION
We have limited jurisdiction to review decisions by the
Veterans Court. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We have exclusive jurisdiction to review
and decide any challenge to the validity of any statute or
1 “App’x” refers to the appendix attached to the gov-
ernment’s response brief.
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4 BROWN v. WILKIE
regulation or any interpretation thereof and to interpret
constitutional and statutory provisions, to the extent pre-
sented and necessary to a decision. 38 U.S.C. § 7292(c).
Except to the extent that an appeal presents a constitu-
tional issue, we may not review a challenge to a factual de-
termination, or a challenge to a law or regulation as
applied to the facts of a particular case. Id. § 7292(d). “If
an appeal to this court from the Court of Veterans Appeals
does not raise a constitutional question, a question as to
the interpretation of a constitutional or statutory provi-
sion, or the interpretation or validity of a regulation relied
upon by the Court of Veterans Appeals, section 7292(d) re-
quires this court to dismiss the appeal for lack of jurisdic-
tion.” Albun v. Brown, 9 F.3d 1528, 1530 (Fed. Cir. 1993).
The Veterans Court’s dismissal rested on its finding of
fact that “Mr. Brown ha[d] plainly indicated that he [did]
not wish to appeal the decision from which he originally
filed an NOA.” App’x 11. The Veterans Court thus deter-
mined that, “[b]ased on Mr. Brown's clarification” to the
Veterans Court, Mr. Brown was “not appealing anything in
the October 17, 2017, Board decision from which he filed
his NOA,” and the Veterans Court therefore had no juris-
diction over Mr. Brown’s appeal. Id. In this court,
Mr. Brown appears to be challenging the Veterans Court’s
factual determination that Mr. Brown was not appealing
the October 17, 2017, Board decision. See Informal Op. Br.
1. Mr. Brown argues that the Veterans Court’s determina-
tion was incorrect. Id.
Mr. Brown does not dispute the interpretation or valid-
ity of any statute or regulation, nor does this appeal raise
a constitutional question. Id.; see also Appellant Mem. In
Lieu of Oral Arg. 1–3. Although Mr. Brown may contest
the Veterans Court’s findings, we do not have jurisdiction
to review the Veterans Court’s factual determinations. 38
U.S.C. § 7292(d). We therefore dismiss this appeal for lack
of jurisdiction.
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BROWN v. WILKIE 5
DISMISSED
COSTS
No costs.