Case: 22-1802 Document: 25 Page: 1 Filed: 11/08/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JESSIE I. CAMPBELL,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1802
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-8643, Senior Judge Frank Q.
Nebeker.
______________________
Decided: November 8, 2022
______________________
JESSIE IVORY CAMPBELL, Holly Springs, MS, pro se.
SONIA W. MURPHY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; BRIAN D. GRIFFIN, RICHARD STEPHEN HUBER,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 22-1802 Document: 25 Page: 2 Filed: 11/08/2022
2 CAMPBELL v. MCDONOUGH
______________________
Before NEWMAN, REYNA, and STOLL, Circuit Judges.
PER CURIAM.
Jessie I. Campbell appeals from a judgment of the
United States Court of Appeals for Veterans Claims affirm-
ing the decision of the Board of Veterans’ Appeals. Because
we lack jurisdiction to consider Mr. Campbell’s claims, we
dismiss.
BACKGROUND
Mr. Campbell served honorably in the Army from
July 1970 to April 1972. In 2003, the Department of Vet-
erans Affairs (VA) awarded Mr. Campbell service connec-
tion for bilateral hearing loss and assigned him a 40%
disability rating. Appx. 1 4. In 2008, Mr. Campbell’s disa-
bility rating was increased to 50%. Appx. 4–5. In 2010,
Mr. Campbell submitted a claim for a further increased
disability rating. During the following decade, Mr. Camp-
bell continued to pursue this claim, including undergoing
seven hearing examinations, three of which were adminis-
tered by the VA and four of which were administered pri-
vately. Appx. 5–7.
In September 2020, the Board reviewed the multiple
hearing examinations and found that Mr. Campbell had, at
most, a “[L]evel IX” hearing impairment in the right ear
and a “[L]evel VIII” hearing impairment in the left ear.
Appx. 7. The Board found that these impairments did not
meet the criteria for a disability rating above 50%. Id.
Mr. Campbell appealed to the Court of Appeals for Veter-
ans Claims (Veterans Court), arguing that the Board did
not “provide[] an adequate statement of its reasons or bases
1 Citations to “Appx.” refer to the Appendix attached
to the appellee’s brief.
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CAMPBELL v. MCDONOUGH 3
for its decision because the Board failed to address whether
a new VA examination was warranted.” Id.
The Veterans Court found that the Board adequately
addressed each of the hearing examination reports in the
record and appropriately determined that none of them en-
titled Mr. Campbell to a disability rating higher than 50%.
Appx. 8–9. Although the court found that the Board should
have addressed whether Mr. Campbell was entitled to an-
other hearing examination, the court noted that Mr. Camp-
bell neither alleged in his briefs, nor put forth any new
evidence of, symptoms beyond those indicated in the hear-
ing examination reports of record. Thus, the Veterans
Court determined that Mr. Campbell “failed to meet his
burden of demonstrating prejudicial error,” for example by
showing that a new hearing examination would differ from
the hearing examinations of record and potentially alter
the outcome of the case. Appx. 9. In other words, the Vet-
erans Court determined that although the Board erred in
not addressing whether the VA should have ordered an-
other medical examination, that error was ultimately
harmless. The court therefore affirmed the Board’s deci-
sion.
Mr. Campbell appeals. We have jurisdiction under
38 U.S.C. § 7292.
DISCUSSION
We have limited jurisdiction to review decisions of the
Veterans Court. We may not review factual findings, nor
the application of law to fact. 38 U.S.C. §§ 7292(c), (d)(2);
see also, e.g., Conway v. Principi, 353 F.3d 1369, 1372
(Fed. Cir. 2004). Our review is limited to legal challenges
regarding the “validity of any statute or regulation or any
interpretation thereof, and to interpret constitutional and
statutory provisions, to the extent presented and necessary
to a decision.” § 7292(c).
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4 CAMPBELL v. MCDONOUGH
On appeal, Mr. Campbell again appears to argue that
the Board should have found that he was entitled to a new
hearing examination. See Appellant’s Br. 2–3. In addition,
Mr. Campbell argues: (1) that he is entitled to a higher dis-
ability rating, see id. 2–3; see generally also Reply Br. 1–4 2;
(2) that he has “been discriminated against,” Appellant’s
Br. 2; and (3) that he has been denied due process, Reply
Br. 3. We address each argument in turn.
First, we address Mr. Campbell’s argument that the
Board should have found he was entitled to a new medical
examination. He does not challenge the Veterans Court’s
determination that the Board erred by not addressing this
issue (because he won on this issue); rather, he contests
that the error was harmless. Appx. 7–8. Whether the
Board committed harmless error is a factual determination
over which we lack jurisdiction. Pitts v. Shinseki, 700 F.3d
1279, 1286 (Fed. Cir. 2012) (determining that the argu-
ment that the Veterans Court erred in finding harmless er-
ror by the Board “challenges the [Veterans Court]’s
application of law to fact and therefore falls outside this
court’s jurisdiction”). Accordingly, we dismiss this portion
of Mr. Campbell’s appeal.
Related to this argument, Mr. Campbell also alleges
that the “Court of Appeal was given false information.” Ap-
pellant’s Br. 1. He does not elaborate on this statement;
for example, Mr. Campbell does not identify any allegedly
false information provided to the Veterans Court, nor does
he explain how such information could have impacted that
court’s decision in his case. In his reply brief, however,
Mr. Campbell appears to argue that the VA has misrepre-
sented the results of his medical examinations to the Vet-
erans Court. See Reply Br. 3–4. Giving Mr. Campbell
2 “Reply Br. __” refers to pages in Mr. Campbell’s in-
formal reply brief as numbered by operation of an elec-
tronic file viewing system.
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CAMPBELL v. MCDONOUGH 5
“leniency with respect to mere formalities” in view of his
pro se status, Kelley v. Sec’y, U.S. Dep’t of Lab., 812 F.2d
1378, 1380 (Fed. Cir. 1987), we assume that these details
are an elaboration of his “false information” argument.
Even so, the credibility and “weighing of . . . evidence is not
within our appellate jurisdiction.” Maxson v. Gober,
230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Gardin
v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (noting
that the Board’s “credibility determination is a question of
fact beyond this court’s jurisdiction”). And the question to
which the allegedly “false information” is relevant—
whether Mr. Campbell was entitled to a new medical ex-
amination—is a question of fact beyond our jurisdiction.
Prinkey v. Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013).
We thus also dismiss this portion of the appeal.
Next, we address Mr. Campbell’s argument that he is
entitled to a higher disability rating, an argument we sim-
ilarly do not have jurisdiction to consider. In his briefing,
Mr. Campbell appears to argue that because his hearing
examinations resulted in a hearing discrimination score of
over 70%, he should have been given an over 70% disability
rating. See, e.g., Reply Br. 4 (“I am asking this court to ac-
cept my 73% rating.”). As an initial matter, we note that
the hearing discrimination score assigned to a veteran by
a physician is not equivalent to the corresponding disabil-
ity ratings for bilateral hearing loss. For example, the dis-
ability rating guidelines provide that a veteran with a
“Level VII” hearing impairment in both ears (a level which
corresponds, depending on other factors, with anywhere
from a 44 to 74 percent hearing discrimination score) would
be entitled to a 40 percent disability rating. See 38 C.F.R.
§ 4.85, Tables VI and VII. In this case, as the Veterans
Court explained, the Board applied the disability rating
guidelines and determined that Mr. Campbell’s hearing
impairment “does not meet the criteria for a rating in ex-
cess of 50%.” Appx. 7.
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6 CAMPBELL v. MCDONOUGH
In any event, determining whether Mr. Campbell’s dis-
ability entitles him to a higher rating “requires an applica-
tion of law to fact that is beyond our jurisdiction.”
Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013)
(citing 38 U.S.C. § 7292(d)(2) and Jackson v. Shinseki,
587 F.3d 1106, 1109 (Fed. Cir. 2009)). In other words,
Mr. Campbell does not ask us to review the “validity of any
statute or regulation or any interpretation thereof,” nor “to
interpret constitutional and statutory provisions,”
§ 7292(c), and thus we do not have jurisdiction to consider
this argument. We therefore dismiss this portion of
Mr. Campbell’s appeal.
We turn next to Mr. Campbell’s discrimination argu-
ment. Mr. Campbell states, in full, “I feel that I have been
discriminated against. I don’t think this is a normal case.”
Appellant’s Br. 2. Mr. Campbell does not elaborate nor
provide evidence of discrimination. We have explained
that “[a]n issue that is merely alluded to and not developed
as an argument in a party’s brief is deemed waived.” Ro-
driguez v. Dep’t of Veterans Affs., 8 F.4th 1290, 1305
(Fed. Cir. 2021) (citing cases); see also, e.g., Monsanto Co.
v. Scruggs, 459 F.3d 1328, 1341 (Fed. Cir. 2006) (“In order
for this court to reach the merits of an issue on appeal, it
must be adequately developed.”). In this case, Mr. Camp-
bell’s undeveloped discrimination argument, “unsupported
by [] citation to any authority,” Rodriguez, 8 F.4th at 1305,
is therefore waived. Even if the argument were not waived,
Mr. Campbell’s brief argument on this issue has not raised
any constitutional issue nor any issue concerning the va-
lidity or interpretation of any statute, regulation, or rule of
law that could provide a basis for our jurisdiction. See
§ 7292(c). We thus dismiss this portion of the appeal.
Finally, in his reply brief, Mr. Campbell raises an issue
for the first time: that he has been denied due process be-
cause the VA “closed [his] claim without any notice given.”
See Reply Br. 3. Although Mr. Campbell alleges a consti-
tutional violation, he provides no further detail or support
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CAMPBELL v. MCDONOUGH 7
for his claim other than an unsupported statement that he
did not receive notice. Our court lacks jurisdiction over as-
sertions that are “constitutional in name” only. Helfer
v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). In other
words, nothing in Mr. Campbell’s briefs presents a true
constitutional question or any other issue that gives this
court jurisdiction. We therefore must also dismiss this por-
tion of Mr. Campbell’s appeal.
CONCLUSION
For the foregoing reasons, we conclude that Mr. Camp-
bell has failed to raise any issue that could provide a basis
for our jurisdiction. We therefore dismiss this appeal.
DISMISSED
COSTS
No costs.
Campbell v. McDonough
Combined Opinion