Case: 22-1417 Document: 20 Page: 1 Filed: 08/03/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY T. RANDOLPH,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1417
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-2876, Judge Grant Jaquith.
______________________
Decided: August 3, 2022
______________________
TIMOTHY RANDOLPH, Murfreesboro, TN, pro se.
JANA MOSES, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, BRIAN D. GRIFFIN, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 22-1417 Document: 20 Page: 2 Filed: 08/03/2022
2 RANDOLPH v. MCDONOUGH
Before LOURIE, REYNA, and STOLL, Circuit Judges.
PER CURIAM.
Timothy T. Randolph appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) affirming the decision of the Board of Vet-
erans’ Appeals (“the Board”) denying compensation under
38 U.S.C. § 1151 for a disability resulting from an August
2000 eye surgery. See Randolph v. McDonough, No. 20-
2876, 2021 WL 4472545 (Vet. App. Sept. 30, 2021) (“Veter-
ans Court Decision”). Because we lack jurisdiction over the
appeal, we dismiss.
BACKGROUND
Randolph served in the United States Army from Octo-
ber 1983 to October 1991. Veterans Court Decision, 2021
WL 4472545, at *1. Randolph underwent left eye surgery
at a Department of Veterans Affairs (“VA”) medical center
on August 10, 2000. Id. In September 2000, Randolph re-
ported left eye pain, and a November 2000 VA medical
exam revealed a small left eye with an irregular pupil that
did not react to light. Id. at *2.
In January 2007, Randolph filed a claim for entitle-
ment to compensation under 38 U.S.C. § 1151 for left eye
blindness, which the VA denied in May 2007. Id.; see also
SAppx. 71. 1 Randolph appealed in January 2008, and in
June 2009, the Board denied compensation, focusing on the
VA’s standard of care and the foreseeability of the injury.
Veterans Court Decision, 2021 WL 4472545, at *2. Ran-
dolph filed a motion for reconsideration in July 2009, which
was denied in January 2010. Id. In April 2012, Randolph
filed a request to reopen his claim based on new and
1 SAppx refers to the Supplemental Appendix filed
with the government’s brief.
Case: 22-1417 Document: 20 Page: 3 Filed: 08/03/2022
RANDOLPH v. MCDONOUGH 3
material evidence, contending that pertinent medical rec-
ords had not been considered and that consent to the Au-
gust 2000 eye surgery had been improperly obtained. Id.
The VA denied the request, and Randolph submitted a No-
tice of Disagreement. Id.
In an August 2015 decision, the Board found that Ran-
dolph had submitted new and material evidence. Id. The
Board reopened Randolph’s claim and remanded for addi-
tional development. Id. In November 2015, Randolph un-
derwent examination by a VA optometrist who found that
the medication administered to Randolph would not have
impacted his ability to provide informed consent to the Au-
gust 2000 procedure. Id. The same examiner reiterated in
March 2016 that the evidence failed to show that Ran-
dolph’s blindness was caused by VA carelessness or negli-
gence, that what occurred was foreseeable, and that the
standard of care was appropriate. Id.
In May 2018, a VA ophthalmologist wrote a medical
opinion for the Board, determining that Randolph was not
on any medication prior to the August 2000 surgery that
would have affected his vision or his ability to consent to
the surgery’s risks, and that the care Randolph received
was appropriate. Id. at *2–3.
In February 2019, the Board found that Randolph was
not entitled to compensation under § 1151 for his left eye
blindness. Id. at *3. The Veterans Court affirmed the
Board’s decision in September 2021. Randolph filed a mo-
tion for reconsideration in October 2021, which was denied
in December 2021. Randolph appealed to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We may review a decision of the Veterans
Court with respect to a rule of law or interpretation of a
statute or regulation relied on by the Veterans Court in its
Case: 22-1417 Document: 20 Page: 4 Filed: 08/03/2022
4 RANDOLPH v. MCDONOUGH
decision. 38 U.S.C. § 7292(a). However, except with re-
spect to constitutional issues, we may not review chal-
lenges to factual determinations or challenges to the
application of a law or regulation to the facts of a case.
§ 7292(d)(2).
On appeal, Randolph argues that the Board erred in
interpreting 38 U.S.C. § 1151 and 38 C.F.R. § 3.361(d)(1)(i)
as defining or establishing the relevant “standard of care.”
Randolph also alleges that the VA erroneously deprived
him of benefits that constitute a Fifth Amendment due pro-
cess violation.
The government responds that we lack jurisdiction to
grant the relief that Randolph seeks because he challenges
the factual merits of entitlement to compensation and the
application of legal standards to particular facts of his case.
With respect to Randolph’s alleged Fifth Amendment due
process violation, the government responds that Randolph
raises the issue for the first time on appeal. The govern-
ment further argues that Randolph does not explain how
the failure to apply a proper standard of care amounts to a
constitutional violation.
We agree with the government that we lack jurisdic-
tion to grant the relief that Randolph seeks. Randolph does
not point to any disagreement with the Veterans Court’s
statement of the law regarding conditions required to sat-
isfy § 1151 and 38 C.F.R. § 3.361(d)(1)(i). Instead, Ran-
dolph appears simply to disagree with the factual
determinations set forth in the Board’s February 2019 de-
cision denying compensation and the Veterans Court’s af-
firmance of that decision.
Further, Randolph does not explain how the alleged
standard-of-care failure constitutes a constitutional viola-
tion. Our court has stated that “appellant’s ‘characteriza-
tion of [a] question as constitutional in nature does not
confer upon us jurisdiction that we otherwise lack.’” Flores
v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007) (quoting
Case: 22-1417 Document: 20 Page: 5 Filed: 08/03/2022
RANDOLPH v. MCDONOUGH 5
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)). Ran-
dolph’s bare assertion of a due process violation is insuffi-
cient to transform his appeal into a constitutional issue
over which we have jurisdiction.
Randolph’s appeal therefore presents only arguments
challenging factual determinations and the application of
law to fact and does not challenge a statute, regulation, or
constitutional issue. Accordingly, Randolph’s appeal does
not present any challenge over which we have jurisdiction.
CONCLUSION
We have considered Randolph’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
dismiss his appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.