Case: 22-1183 Document: 33 Page: 1 Filed: 09/07/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLIFFORD M. MOFFETT,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1183
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4438, Senior Judge Robert N.
Davis.
______________________
Decided: September 7, 2022
______________________
J. BRYAN JONES, III, J B Jones III LLC, Lafayette, LA,
for claimant-appellant.
KYLE SHANE BECKRICH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
PREHEIM; CHRISTINA LYNN GREGG, Y. KEN LEE, Office of
Case: 22-1183 Document: 33 Page: 2 Filed: 09/07/2022
2 MOFFETT v. MCDONOUGH
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before PROST, TARANTO, and STOLL, Circuit Judges.
PER CURIAM.
Clifford Moffett appeals from a judgment of the United
States Court of Appeals for Veterans Claims affirming the
decision of the Board of Veterans’ Appeals. For the below
reasons, we affirm-in-part and dismiss-in-part.
BACKGROUND
Mr. Moffett served in the Air Force from March 1959
through June 1960. On April 5, 1960, Mr. Moffett acci-
dentally shot himself in the thigh. J.A. 24. Hospital rec-
ords from that day indicate that Mr. Moffett incurred a
“through and through” gunshot wound with “[n]o apparent
artery, nerve, or bone involvement.” Id. An x-ray report
from the following day states there was “no evidence [of]
fracture or other abnormality of the femur. In one or two
places one can suspect metallic fragments from [the] gun-
shot wound.” J.A. 22.
About three weeks after the incident, Mr. Moffett was
discharged from the hospital. His discharge paperwork
stated that he was “considered unfit” for “long walking,
running, jumping, climbing[,] or driving a vehicle” for a few
weeks—until June 1, 1960, at which time those restrictions
would end. J.A. 23. That day, Mr. Moffett had another
medical examination. The report from this examination
states that he had “[s]cars on [his] thigh due to [a] gunshot
wound,” but confirmed that he was qualified for general
service. J.A. 29. Two weeks later, on June 14, 1960,
Mr. Moffett received an honorable discharge from the Air
Force. J.A. 27.
Shortly after being discharged, Mr. Moffett filed a
claim for service connection for residuals of his gunshot
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MOFFETT v. MCDONOUGH 3
wound. In the subsequent medical examination, the phy-
sician noted “no deformity, no interference with normal
mobility of [the] leg, knee, or ankle, nondisfiguring, with
doubtful interference of sensation in lower leg.” J.A. 25. In
December 1960, the VA Regional Office (RO) granted ser-
vice connection for Mr. Moffett’s claim. J.A. 19. The RO
determined the injury was “moderate” and assigned
Mr. Moffett a 10 percent disability rating. Id. Mr. Moffett
did not appeal that decision, and it became final.
In May 2010, fifty years after the RO’s December 1960
decision, Mr. Moffett sought revision of that decision on the
basis of clear and unmistakable error (CUE). Over the next
few years, Mr. Moffett raised a few different CUE claims
which moved between the RO and the Board. In the case
now on appeal, Mr. Moffett alleged two grounds of
CUE: (1) that his injury should have been considered mod-
erately severe, rather than moderate, because he was “‘de-
clared unfit for duty’ and ‘was medically discharged from
service’” because of the injury; and (2) that his injury
should have been considered severe, rather than moderate,
because “April 1960 x-rays showed the presence of sus-
pected [metallic] fragments.” J.A. 2 (alteration in original)
(quoting J.A. 9).
On April 28, 2020, the Board issued its decision finding
that Mr. Moffett had not demonstrated CUE in the RO’s
decision. Specifically, the Board found that Mr. Moffett
“ha[d] not alleged an error of fact or law in the Decem-
ber 20, 1960, rating decision that compels the conclusion,
to which reasonable minds could not differ, that the results
would have been manifestly different but for the error.”
J.A. 8. The Board explained that Mr. Moffett’s arguments
were “essentially a disagreement as to how the facts were
weighed or evaluated by the adjudicator” and that whether
his “service-connected residuals of a gunshot wound to the
right thigh should have been considered more than moder-
ate in severity is debatable.” J.A. 15.
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4 MOFFETT v. MCDONOUGH
Mr. Moffett appealed to the Veterans Court. Before
that court, Mr. Moffett reasserted the same two CUE
grounds that he had presented to the Board—that his in-
jury was more severe than the rating he had been assigned
because he was discharged because of his injury and be-
cause x-rays taken in 1960 showed suspected metallic frag-
ments. But Mr. Moffett also raised a new CUE theory: his
injury was “consistent with a moderately severe disability”
as evidenced by the fact that he spent three weeks in the
hospital recovering from his gunshot wound. J.A. 4 (quo-
tation omitted).
Regarding this new, third CUE theory, the Veterans
Court explained that “[i]f the ‘appellant raises a new theory
of CUE for the first time before the [Veterans] Court, the
[Veterans] Court must dismiss for lack of jurisdiction.’”
J.A. 4–5 (quoting Acciola v. Peake, 22 Vet. App. 320, 325
(2008)). Because Mr. Moffett had not previously raised this
ground for CUE, the Veterans Court dismissed that ground
because it did not have jurisdiction to consider it. J.A. 4–5
(quoting Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir.
2002)).
The Veterans Court then turned to Mr. Moffett’s other
two CUE grounds. The court stated that, “as the Board
found and Mr. Moffett d[id] not challenge[,] the evidence
here is not ‘undisputed.’” J.A. 6. This was enough to pre-
clude a finding of CUE, the court explained, because CUE
requires that “the alleged error must be ‘undebatable,’ not
merely a ‘disagreement as to how the facts were weighed
or evaluated.’” J.A. 6 n.34 (quoting Russell v. Principi,
3 Vet. App. 310, 313–14 (1992)). Because the facts in
Mr. Moffett’s case were disputed, the court held that
Mr. Moffett could not demonstrate CUE. The court thus
affirmed the Board’s decision as to Mr. Moffett’s two CUE
grounds over which the court had jurisdiction. Mr. Moffett
appeals.
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MOFFETT v. MCDONOUGH 5
DISCUSSION
This court’s jurisdiction to review decisions by the Vet-
erans Court is limited. Except for constitutional issues, we
may not review any “challenge to a factual determination”
or any “challenge to a law or regulation as applied to the
facts of a particular case.” 38 U.S.C. § 7292(d)(2). Our re-
view is limited to legal challenges regarding the “validity
of any statute or regulation or any interpretation thereof
. . ., and to interpret constitutional and statutory provi-
sions, to the extent presented and necessary to a decision.”
§ 7292(c). We must affirm a Veterans Court decision un-
less it is “(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in
excess of statutory jurisdiction, authority, or limitations, or
in violation of a statutory right; or (D) without observance
of procedure required by law.” 38 U.S.C. § 7292(d)(1).
On appeal, Mr. Moffett again argues the same three
grounds of CUE he presented to the Veterans Court:
(1) that he was hospitalized for three weeks, indicating “ex-
tensive hospitalization” consistent with a moderately se-
vere disability rating; (2) that he was discharged from
service because of his injury, warranting a moderately se-
vere disability rating; and (3) that records show the pres-
ence of metallic fragments as a result of his injury,
warranting a severe disability rating. Appellant’s Br. 4–5.
In his Statement of the Issues section of his brief, Mr. Mof-
fett frames a single issue, stating that “[t]he issue in this
case is whether the examples” listed in the 1960 version of
the schedule of disability ratings for muscle injuries “are
deemed to be indicative of the degree of disability that
should be assigned for gunshot wounds.” Id. at 1.
We start with Mr. Moffett’s argument that because he
was hospitalized for three weeks following his injury, the
VA should have assigned a moderately severe disability
rating for his injury. For the Veterans Court to have
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6 MOFFETT v. MCDONOUGH
jurisdiction over a CUE claim, the veteran must present
that claim to the RO, appeal an adverse RO decision to the
Board, and appeal an adverse Board decision to the Veter-
ans Court. Andre, 301 F.3d at 1361 (“[E]ach ‘specific’ as-
sertion of CUE constitutes a claim that must be the subject
of a decision by the [Board] before the Veterans Court can
exercise jurisdiction over it.”). In this case, as the Veterans
Court explained, “the Board did not adjudicate this CUE
theory, and the record does not reflect that Mr. Moffett
raised th[is] theory to the Board.” J.A. 5. We have deemed
determinations about the scope of the CUE claim presented
to be factual ones outside our jurisdiction. See Garcia v.
Wilkie, 908 F.3d 728, 737 (Fed. Cir. 2018); Kernea v.
Shinseki, 724 F.3d 1374, 1382 (Fed. Cir. 2013); Comer v.
Peake, 552 F.3d 1362, 1372 (Fed. Cir. 2009). To the extent
that Mr. Moffett is asserting that there is a legal error in
the Veterans Court’s determination that the hospitaliza-
tion theory was a new, separate CUE claim that therefore
had to be dismissed, he has supplied no argument showing
a legal error, and we do not discern one. See Acciola, 22
Vet. App. at 325; Andre, 301 F.3d at 1363. We therefore
affirm the Veterans Court’s dismissal of this CUE claim.
We turn next to Mr. Moffett’s remaining assertions of
CUE. For his second CUE claim, Mr. Moffett argues he
was discharged from service because of his injury, which he
argues shows it was undebatable that his injury was more
than his assigned rating of moderate. Appellant’s Br. 7.
For his third CUE claim, Mr. Moffett argues that x-rays
showed the presence of metallic fragments from his injury,
which he similarly argues shows that his injury was more
than moderate. Id. at 8.
We lack appellate jurisdiction to consider these two
CUE claims. The Board and the Veterans Court thor-
oughly considered both of these claims and found that
Mr. Moffett had not shown an undebatable error—a re-
quirement for him to demonstrate CUE. See Russell, 3 Vet.
App. at 313–14 (to successfully demonstrate CUE, the
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MOFFETT v. MCDONOUGH 7
alleged error must be “undebatable,” not merely “a disa-
greement as to how the facts were weighed or evaluated”).
The Veterans Court’s conclusion is based on an application
of the law regarding CUE to the facts of Mr. Moffett’s case.
As such, it is beyond our jurisdiction. § 7292(d)(2) (we can-
not review “a challenge to a law or regulation as applied to
the facts of a particular case”); see also Conway v. Principi,
353 F.3d 1369, 1372–73 (Fed. Cir. 2004). We therefore dis-
miss Mr. Moffett’s appeal regarding his second and third
CUE claims.
Finally, we address Mr. Moffett’s “Statement of the Is-
sue[]” as whether the examples listed in the applicable dis-
ability rating schedule “are deemed to be indicative of the
degree of disability that should be assigned for gunshot
wounds.” Appellant’s Br. 1. Mr. Moffett’s brief in this
court and in the Veterans Court, and the Veterans Court’s
decision, make clear that Mr. Moffett is not challenging the
applicable rating schedule, but invoking it. And his “issue”
simply presents the contention that a higher rating was le-
gally required under that schedule given the facts he al-
leges are indisputable—regarding the basis for discharge
from the service, the presence of metallic fragments, and
the length of hospitalization. But the Veterans Court did
not address, or need to address, that contention, because it
rejected all three of the asserted premises of the contention
in the present CUE adjudication—a rejection that we leave
undisturbed. In these circumstances, Mr. Moffett does not
and cannot explain how adoption of his legal contention
would alter the Veterans Court’s decision in his case. The
Veterans Court’s decision does not rest on either an express
or implicit rejection of the legal contention Mr. Moffett ad-
vances, and so the contention is outside our jurisdiction.
See Forshey v. Principi, 284 F.3d 1335, 1351 (Fed. Cir.
2002).
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8 MOFFETT v. MCDONOUGH
CONCLUSION
Accordingly, we affirm-in-part and dismiss-in-part the
judgment of the Veterans Court.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.