Case: 20-2289 Document: 16 Page: 1 Filed: 01/06/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER VARGAS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-2289
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5091, Chief Judge Margaret C.
Bartley.
______________________
Decided: January 6, 2021
______________________
PETER VARGAS, San Antonio, TX, pro se.
KYLE SHANE BECKRICH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.,
LOREN MISHA PREHEIM; CHRISTINA LYNN GREGG, BRIAN D.
GRIFFIN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
Case: 20-2289 Document: 16 Page: 2 Filed: 01/06/2021
2 VARGAS v. WILKIE
______________________
Before O’MALLEY, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Peter Vargas, a veteran, filed a motion with a regional
office of the Department of Veterans Affairs (VA) seeking
to set aside, based on clear and unmistakable error, certain
earlier adverse VA decisions on his claims for disability
benefits relating to lower-back problems and asthma. The
regional office and then the Board of Veterans’ Appeals
found no clear and unmistakable error calling for revision
of the VA decisions, and the United States Court of Appeals
for Veterans Claims (Veterans Court) affirmed. Vargas v.
Wilkie, No. 19-5091, 2020 WL 2754902 (Vet. App. May 28,
2020). Mr. Vargas appeals. Because we lack jurisdiction
to decide the issues that Mr. Vargas raises, we must dis-
miss his appeal.
I
Peter Vargas served in the United States Air Force
from August 1971 to October 1983. Almost immediately
after leaving the service, he filed a claim for disability ben-
efits relating to several conditions, including lower-back
pain and asthma, and the relevant VA regional office, in
November 1983, awarded benefits based on a finding of ser-
vice-connected asthma and lumbar spine spondylosis (an
arthritic condition of the lumbar spine), assigning a 10%
rating effective October 25, 1983. Mr. Vargas filed several
claims following the November 1983 decision, arguing in
part for a higher rating for his lumbar spine spondylosis
disability, which was worsening over time, and he obtained
a rating of 20% effective November 1, 1988, and of 40% ef-
fective March 6, 1990. Mr. Vargas also obtained higher
ratings for his asthma-based disability, ultimately receiv-
ing a rating of 30% effective June 13, 2005.
Case: 20-2289 Document: 16 Page: 3 Filed: 01/06/2021
VARGAS v. WILKIE 3
On September 24, 2010, Mr. Vargas submitted, as rel-
evant here, a claim for benefits for bilateral lower-extrem-
ity sciatica, which he alleged was secondary to his
previously recognized lower-back disabilities, as well as
claims for a higher rating for his asthma-based disability.
On June 22, 2011, the regional office issued a rating deci-
sion that assigned Mr. Vargas a 10% rating, effective the
date of his September 24, 2010 claim, for a disability based
on “intervertebral disc syndrome with degenerative arthri-
tis changes” involving neurological abnormalities of his
lower-right extremity and that continued his rating of 30%
for his asthma-based disability. S.A. 17. The regional of-
fice denied Mr. Vargas’s claim for sciatica of the lower-left
extremity.
On May 3, 2013, Mr. Vargas submitted to VA an alle-
gation of clear and unmistakable error (CUE) as a basis for
revising the regional office’s June 2011 evaluation of a
number of his disability claims, and the Veterans Court
construed the filing as also alleging CUE in the November
1983 decision. On June 5, 2014, the regional office rejected
Mr. Vargas’s arguments, continuing the ratings previously
assigned.
On June 30, 2014, Mr. Vargas filed a Notice of Disa-
greement with the regional office regarding his CUE claims
for spondylosis and “secondary neurological abnormalities”
related to that condition, as well as his asthma claims. The
regional office issued a statement of the case on January
22, 2016, again rejecting Mr. Vargas’s arguments. Mr. Var-
gas then appealed the regional office’s CUE decisions to the
Board on February 8, 2016. S.A. 3.
On June 26, 2019, the Board entered its final determi-
nation as to what it determined to be five distinct chal-
lenges that Mr. Vargas raised. S.A. 14. First, the Board
concluded that the June 2011 decision did not contain CUE
in denying Mr. Vargas’s claim for a higher rating regarding
his lower-back disabilities. S.A. 14. The Board explained
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4 VARGAS v. WILKIE
that “there is no indication that [Mr. Vargas] sought an in-
creased rating for the back disability” in his September 24,
2010 filing, even if the sciatica could be deemed “secondary
to his service-connected back disability.” S.A. 18. The
Board also noted that Mr. Vargas “failed to cite any specific
error” in his claim of CUE, characterizing his claim as
“broad-brush allegations” that did not adequately identify
the specific nature of the alleged error and rejected Mr.
Vargas’s argument for a higher rating. S.A. 19. The Board
explained that Diagnostic Code 5239, which provided the
basis for the asserted higher rating, required evidence of
“unfavorable ankylosis,” a condition in which the spine is
fixed in flexion or extension that produces one or more as-
sociated complications, such as restricted breathing, dia-
phragmatic respiration, or neurologic symptoms due to
nerve-root stretching. 38 C.F.R. § 4.71a, Note (5). That
evidence, the Board found, was not part of the record at the
time of the June 2011 rating decision. S.A. 19.
Second, the Board rejected Mr. Vargas’s argument that
the June 2011 rating decision contained CUE insofar as it
failed to apply separate ratings for the neurological abnor-
malities, such as sciatica, in his lower extremities that Mr.
Vargas claimed were associated with his lower-back disa-
bilities. S.A. 20–21. For this issue, as for the CUE allega-
tion regarding a higher rating for his lower-back
disabilities, the Board explained that Mr. Vargas’s “broad-
brush allegations cannot serve as a basis for CUE.” S.A.
20.
Third, the Board rejected Mr. Vargas’s argument that
the June 2011 rating decision’s effective date should have
been earlier than September 24, 2011—the date he filed
the claim—because Mr. Vargas “provide[d] no indication as
to why an earlier effective date is warranted.” S.A. 21.
Fourth, the Board rejected Mr. Vargas’s argument that
he was entitled to an effective date before October 25, 1983,
for his asthma, explaining that the presently granted
Case: 20-2289 Document: 16 Page: 5 Filed: 01/06/2021
VARGAS v. WILKIE 5
effective date was the earliest possible effective date be-
cause that was the date that he ended his military service.
S.A. 22.
Fifth, the Board rejected Mr. Vargas’s argument that
the November 1983 and June 2011 rating decisions should
have assigned a 100% rating for his asthma. The Board
noted that “the lay and medical evidence of record at the
time of [both rating decisions] makes no mention” of Mr.
Vargas’s medications, which he argued supported a higher
rating under Diagnostic Code 6602 (as it existed respec-
tively in November 1983 and June 2011). S.A. 24. In ad-
dition, the Board explained that despite Mr. Vargas’s
argument, VA’s failure to obtain a medical opinion related
to the condition “cannot constitute CUE” for breaching the
duty to assist. S.A. 25 (citing Cook v. Principi, 318 F.3d
1334, 1345–47 (Fed. Cir. 2002)).
Mr. Vargas appealed the Board’s decision, which the
Veterans Court affirmed. The Veterans Court first ad-
dressed the claims related to the lumbar spine disability
and associated neurological abnormalities. Regarding Mr.
Vargas’s claims for his lumbar spine disability, the Veter-
ans Court ruled that the regional office correctly deter-
mined that Mr. Vargas “did not express an intent to seek a
higher evaluation for spondylosis” in his September [24,]
2010 claim. S.A. 6. Similarly, the Veterans Court found
no error in the Board’s determination that the June 2011
decision contained “no indication of unfavorable ankylosis.”
S.A. 6. And the court found that Mr. Vargas failed to show
“how the [regional office] erred in its June 2011 decision to
award a 10% evaluation for right lower extremity radicu-
lopathy with an effective date of September 24, 2010, or to
deny service connection for left lower extremity radiculopa-
thy.” S.A. 7.
The Veterans Court then addressed the claims of CUE
regarding Mr. Vargas’s asthma disability. The Veterans
Court reiterated that Mr. Vargas received “the earliest
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6 VARGAS v. WILKIE
possible effective date for that disability.” S.A. 9. Simi-
larly, the court affirmed the Board’s determination that
Mr. Vargas “fail[ed] to show how the [regional office’s] as-
signment of a 10% evaluation in November 1983” or “an
evaluation in excess of 30% in June 2011 constituted CUE,”
considering “contemporaneous medical records” supported
those determinations. S.A. 11. Therefore, the Veterans
Court affirmed the Board’s determination. S.A. 12.
The Veterans Court’s decision became final on August
10, 2020. Mr. Vargas timely appealed.
II
Our jurisdiction in cases from the Veterans Court is
limited. Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed.
Cir. 2010). In a case like this, not involving a constitutional
issue, we “may not review (A) a challenge to a factual de-
termination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2). This court does, however, have jurisdiction to
“decide all relevant questions of law, including interpreting
constitutional and statutory provisions.” Id. § 7292(d)(1).
“Although the veterans benefits adjudication system is
nonadversarial and paternalistic, . . . the ultimate burden
of showing jurisdiction rests with the veteran.” Butler v.
Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001).
The majority of Mr. Vargas’s arguments focus on the
merits of his claims and ask that we reverse the Veterans
Court’s affirmance of the Board’s decisions. But Mr. Var-
gas has not identified a legal error in the Veterans Court’s
decision. His arguments ask that we re-weigh the facts of
his claims to decide if the Veterans Court failed to correctly
evaluate the Board’s CUE rulings or that we question the
Veterans Court’s record-specific interpretations of some-
times-opaque filings to determine what specific contentions
were presented to, and ruled on by, the regional office at
various times. See Lang v. Wilkie, 971 F.3d 1348, 1352
(Fed. Cir. 2020) (“[E]ach allegation of CUE must be made,
Case: 20-2289 Document: 16 Page: 7 Filed: 01/06/2021
VARGAS v. WILKIE 7
with specificity, to the Board for the Veterans Court to ex-
ercise jurisdiction over it.”). These challenges are either to
factual determinations or to applications of legal standards
to specific facts, but such challenges are outside our juris-
diction.
For example, Mr. Vargas appears to argue that the
Board did not properly consider “VA X-ray reports [that]
noted secondary moderate rhinorrehea, moderate pharyn-
gitis, enlarged tonsils,” and other symptoms. Vargas Inf.
Opening Br. at 4; see also id. at 6 (same). This contention
focuses on fact findings and applications of law to fact at
the Board level, not on legal interpretations at the Veter-
ans Court level. Similarly, Mr. Vargas appears to argue
that the regional office misapplied the presumption of
soundness, Vargas Inf. Opening Br. at 5, an argument that
focuses on VA and not the Veterans Court, and that also
amounts to a challenge to an “application of the law to
facts” that is beyond our jurisdiction. Cook v. Principi, 353
F.3d 937, 937 (Fed. Cir. 2003) (“Although Mr. Cook pre-
sents his argument as a legal premise couched in terms of
statutory interpretation, the review Mr. Cook requests ul-
timately reduces to an application of the law to facts.”); see
also Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
2007) (“Our jurisdictional statute precludes appellate re-
view of factual matters and the application of law to
facts.”); 38 U.S.C. § 7292(d)(2).
Mr. Vargas also suggests that one or more of the re-
gional office’s claim determinations that were reviewed for
CUE lacked finality, in the sense that there was no state-
ment of the case that is a precondition for finality, at least
not one addressing the issue subjected to CUE review—in
which case, he argues, CUE review (which presupposes fi-
nality) was improper. See Lang, 971 F.3d at 1352 (“[O]nly
final decisions are subject to CUE. If there is no final deci-
sion, there can be no CUE; and the Board would have been
required to dismiss the CUE motion in its entirety.” (inter-
nal quotation marks omitted)). But Mr. Vargas has not
Case: 20-2289 Document: 16 Page: 8 Filed: 01/06/2021
8 VARGAS v. WILKIE
established the several premises of this apparent argu-
ment in comprehensible fashion. Most particularly, he has
identified no legal error in the Veterans Court’s opinion re-
lating to any such non-finality contention. And the govern-
ment recognizes that the decision in this case does not
prevent Mr. Vargas from raising before VA a non-finality
contention not rejected here. See Appellee Br. at 11 (“De-
cisions in this appeal do not prevent him from raising his
nonfinality theory before VA,” at least as to some of his
claims.).
Mr. Vargas further indicates in his informal brief that
he is challenging a constitutional decision by the Veterans
Court, but we struggle to find, without any further expla-
nation, the basis of this argument. Although we read pro
se filings liberally, Harris v. Shinseki, 704 F.3d 946, 948
(Fed. Cir. 2013), Mr. Vargas’s argument appears to recite
similar arguments regarding the merits of his claims that
are merely labeled constitutional, therefore precluding our
review. See Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed.
Cir. 2007) (“[T]he appellant’s ‘characterization of [the]
question as constitutional in nature does not confer upon
us jurisdiction that we otherwise lack.’” (quoting Helfer v.
West, 174 F.3d 1332, 1335 (Fed. Cir. 1999))).
We have reviewed Mr. Vargas’s remaining arguments
and find them not to raise an issue within our jurisdiction.
III
We dismiss the appeal for lack of jurisdiction.
The parties shall bear their own costs.
DISMISSED