Case: 22-1752 Document: 38 Page: 1 Filed: 11/03/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEON H. MCCORMICK,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1752
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-3242, Judge William S. Green-
berg.
______________________
Decided: November 3, 2022
______________________
LEON HARDY MCCORMICK, Petersburg, VA, pro se.
JOSHUA A. MANDLEBAUM, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; RICHARD STEPHEN HUBER, Y. KEN LEE, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 22-1752 Document: 38 Page: 2 Filed: 11/03/2022
2 MCCORMICK v. MCDONOUGH
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
PER CURIAM.
Leon H. McCormick, a veteran of the Korean War, was
diagnosed with asbestosis with pulmonary nodules and
sought compensation for his disability from the Depart-
ment of Veterans Affairs. The Board of Veterans’ Appeals
(“Board”) found that Mr. McCormick’s condition, though
service connected, did not entitle him to compensation, and
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirmed. Because Mr. McCormick
raises no colorable constitutional questions on appeal, and
all his other challenges would require us to review factual
determinations, the application of law to facts, or decisions
in other proceedings not properly part of this appeal, we
lack jurisdiction. See 38 U.S.C. § 7292(a), (d)(2). We dis-
miss.
BACKGROUND
Mr. McCormick served in the Air Force between 1952
and 1953 during the Korean War. Mr. McCormick suffers
from asbestosis—a lung disease caused by the inhalation
of asbestos fibers. The VA has determined that his condi-
tion is service connected, but with a 0% disability rating.
Under VA regulations, a veteran with service-con-
nected asbestosis is entitled to a compensable rating when
his or her lung capacity falls below 80 percent of predicted
capacity as measured by forced vital capacity or diffusion
capacity for carbon monoxide. See 38 C.F.R. § 4.97 (2020).
Between 2014 and 2019, Mr. McCormick’s lung capacity
was tested four times. In all but one of those tests, Mr.
McCormick’s lung capacity exceeded the threshold under
which he would be entitled to a compensable rating. In one
of those pulmonary function tests, however, administered
in July 2016, Mr. McCormick showed notably weaker lung
Case: 22-1752 Document: 38 Page: 3 Filed: 11/03/2022
MCCORMICK v. MCDONOUGH 3
capacity, in the compensable range under both relevant
metrics.
In January 2018, the VA denied Mr. McCormick’s re-
quest for compensation for his asbestosis. Mr. McCormick
filed a notice of disagreement with the agency, and ulti-
mately an appeal with the Board. In July 2019, the Board
denied Mr. McCormick’s request for a higher rating. The
Board recognized that Mr. McCormick’s July 2016 test had
shown his lung function to be “significantly worse than
[the] other test findings” reflected, but concluded that, in
light of Mr. McCormick’s “overall medical history,” the re-
sult was “an outlier.” S.A. 34–35.
On appeal at the Veterans Court, the parties jointly
moved to remand the case in light of what they agreed was
an inadequate explanation by the Board for rejecting the
July 2016 test results. The court granted the motion. On
remand, the VA asked a medical examiner if the July 2016
pulmonary tests accurately represented Mr. McCormick’s
asbestosis. The physician, a general practitioner and spe-
cialist in obstetrics and gynecology, concluded that the
2016 results “were spurious” and inconsistent with other
evidence of Mr. McCormick’s medical condition. S.A. 18.
In January 2021, the Board reweighed the evidence
and, relying in part on the medical examiner’s report, again
denied Mr. McCormick’s claim for a higher rating for his
asbestosis.
Mr. McCormick appealed to the Veterans Court. Find-
ing no clear error in the Board’s decision, the court af-
firmed. This appeal followed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. “[A]bsent
a constitutional issue, [we] may not review challenges to
factual determinations or challenges to the application of a
law or regulation to facts.” Cook v. Principi, 353 F.3d 937,
Case: 22-1752 Document: 38 Page: 4 Filed: 11/03/2022
4 MCCORMICK v. MCDONOUGH
939 (Fed. Cir. 2003). Mr. McCormick has not raised an is-
sue over which we have jurisdiction.
Mr. McCormick has not pointed to a statutory or regu-
latory interpretation by the Veterans Court with which he
disagrees. He contends that the Board failed to comply
with the Veterans Court remand, violated its duty to re-
view the entire record, and reached its decision based on
an incomplete Disability Benefits Questionnaire. See Ap-
pellant’s Informal Br. Doc. 2 at 3–4. He also asserts that
the VA appointed an inadequate medical examiner, failed
to assist him properly in pursuing his claim, and ignored
factual findings in his favor. Id. All of those arguments
either address factual determinations or “reduce[] to” chal-
lenges to the “application of the law to facts.” Cook, 353
F.3d at 937.
Mr. McCormick also raises several issues unrelated to
the Veterans Court decision that he has appealed, primar-
ily related to another claim for service-connected disability
and the agency’s appointment of a fiduciary on his behalf.
See Appellant’s Informal Br. Doc. 2 at 3–4. We lack juris-
diction to consider challenges to decisions other than those
rendered by the Veterans Court in this case. See 38 U.S.C.
§ 7292(a).
Finally, Mr. McCormick argues that he was denied due
process under the Fourteenth Amendment, but does not ex-
plain how. See Appellant’s Informal Br. Doc. 2 at 2; Appel-
lant’s Informal Reply Br. 2. Bare invocations of the
Constitution do not suffice to grant us jurisdiction, “and
this is not a case where a constitutional claim is apparent
in the absence of explanation.” Booker v. McDonough, No.
2021-1566, 2021 WL 3871966, at *3 (Fed. Cir. Aug. 31,
2021); see Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir.
1999) (“To the extent that [the veteran] has simply put a
‘due process’ label on his contention that he should have
prevailed on his . . . claim, his claim is constitutional in
name only. . . . [The veteran’s] characterization of [a]
Case: 22-1752 Document: 38 Page: 5 Filed: 11/03/2022
MCCORMICK v. MCDONOUGH 5
question as constitutional in nature does not confer upon
us jurisdiction that we otherwise lack.”).
CONCLUSION
We dismiss Mr. McCormick’s appeal for lack of juris-
diction.
DISMISSED
COSTS
No costs.