Case: 23-1153 Document: 47 Page: 1 Filed: 01/22/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JERRY C. HULSEY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1153
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-1550, Senior Judge William P.
Greene, Jr.
______________________
Decided: January 22, 2024
______________________
JERRY COPELAND HULSEY, I, Talisay City, Cebu, Philip-
pines, pro se.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of
Case: 23-1153 Document: 47 Page: 2 Filed: 01/22/2024
2 HULSEY v. MCDONOUGH
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
PER CURIAM.
Jerry C. Hulsey appeals a decision of the Court of Ap-
peals for Veterans Claims (“Veterans Court”) that affirmed
in part and vacated in part a decision of the Board of Vet-
erans’ Appeals (“Board”). Because we lack jurisdiction, we
dismiss.
BACKGROUND
Mr. Hulsey served on active duty in the U.S. Marine
Corps from April to December 1969. In January 1970, he
sought service connection for chronic bronchitis and for feet
and ankle conditions. In May 1970, the Department of Vet-
erans Affairs (“VA”) regional office (“RO”) awarded him a
30% disability rating for bronchitis, effective December
1969, but denied service connection for his feet and ankle
conditions. S.A. 2. 1 Mr. Hulsey submitted additional evi-
dence in support of both claims. In March 1971, the RO
determined that neither a higher disability rating for
chronic bronchitis nor service connection for feet and ankle
conditions was warranted. Mr. Hulsey did not appeal this
decision. S.A. 2.
In December 1996, Mr. Hulsey sought an increased dis-
ability rating for chronic bronchitis and sought to reopen
his service-connection claim for a foot condition. S.A. 2.
The RO denied those claims in November 1997.
1 “S.A.” refers to the supplemental appendix submit-
ted with the government’s brief.
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HULSEY v. MCDONOUGH 3
In February 1999, Mr. Hulsey submitted a claim for
service connection for several conditions. S.A. 2. In De-
cember 2001, a VA hearing officer denied claims relating to
feet and ankle conditions, reasoning that because
Mr. Hulsey had not appealed the March 1971 denial of his
claim within one year, the May 1970 rating became a final
decision and “new and material evidence had not been sub-
mitted sufficient to reopen his claim.” S.A. 2–3. Regarding
Mr. Hulsey’s bronchitis claim, the hearing officer increased
his disability rating from 30% to 100%, effective December
1996. 2 S.A. 3.
In December 2010, the VA notified Mr. Hulsey that it
was working to address some of his claims related to the
rating decisions of 1970, 1971, and 1997, among other is-
sues. In December 2011, the VA determined there had
been clear and unmistakable error (“CUE”) in the Decem-
ber 2001 hearing officer’s decision that had increased his
disability rating to 100%. S.A. 3. Due to that error, the VA
reduced Mr. Hulsey’s bronchitis disability rating from
100% to 60%. S.A. 3. In addition, the VA granted a total
disability based on individual unemployability (“TDIU”)
rating, effective December 1996. S.A. 3. The VA also
granted service connection on a secondary basis for degen-
erative changes, bilateral ankles, at 10%, effective Febru-
ary 1999. S.A. 3.
Mr. Hulsey appealed the December 2011 decision to the
Board. In February 2016, the Board denied his appeal.
S.A. 135–51. As relevant here, the Board upheld the re-
duction of Mr. Hulsey’s disability rating for bronchitis from
100 to 60% due to CUE in the December 2001 rating deci-
sion. S.A. 141–45. Regarding the service-connected
2 Mr. Hulsey’s effort to seek an earlier effective date
for his bronchitis disability rating was previously before
this court. We dismissed his appeal for lack of jurisdiction.
Hulsey v. McDonald, 625 F. App’x 546 (Fed. Cir. 2015).
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4 HULSEY v. MCDONOUGH
condition of degenerative changes, right and left ankles,
the Board determined that Mr. Hulsey was not entitled to
an effective date earlier than February 1999. S.A. 141. For
his TDIU claim, the Board concluded that Mr. Hulsey did
not meet requirements to establish a TDIU prior to Decem-
ber 1996, because he had worked full time on his father’s
farm and had been on his father’s payroll until 1997. S.A.
146–48. Mr. Hulsey appealed to the Veterans Court.
In September 2021, the Veterans Court affirmed in
part and vacated in part the Board’s decision. S.A. 1–10.
The court affirmed the December 2011 reduction in Mr.
Hulsey’s disability rating, reasoning that although he had
argued that 38 C.F.R. § 3.951(b) required reversal of the
reduction in rating, that regulation was inapplicable to the
facts of his case. S.A. 8. The court vacated and remanded
to the Board regarding the bilateral ankle condition, con-
cluding that “the Board provided an inadequate statement
of reasons or bases for its determination that February 10,
1999, was the appropriate effective date for the grant of
service connection.” S.A. 5. The court also found a remand
warranted relative to TDIU “for the Board to readjudicate
Mr. Hulsey’s entitlement to extraschedular TDIU, prior to
December 1996,” finding that the Board’s “statement of
reasons or bases is insufficient for judicial review.” S.A. 7.
The court noted that although Mr. Hulsey had been em-
ployed on his father’s farm, the Board had not considered
whether his employment was substantially gainful or more
than marginal. S.A. 7.
Mr. Hulsey filed a motion for reconsideration or, in the
alternative, a panel decision. S.A. 78–99. The court denied
his motion for reconsideration and adopted the single-judge
order as the decision of the court, additionally denying full-
court review. S.A. 100–101, 123. Mr. Hulsey appeals.
DISCUSSION
This court has limited jurisdiction to review Veterans
Court decisions. We have “jurisdiction to review and decide
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HULSEY v. MCDONOUGH 5
any challenge to the validity of any statute or regulation or
any interpretation thereof . . . , and to interpret constitu-
tional and statutory provisions, to the extent presented and
necessary to a decision.” 38 U.S.C. § 7292(c). We lack ju-
risdiction to review “a challenge to a factual determina-
tion,” or “a challenge to a law or regulation as applied to
the facts of a particular case,” unless presented with a con-
stitutional issue. Id. § 7292(d)(2).
Although he makes several arguments, Mr. Hulsey
presents two main issues on appeal. We lack jurisdiction
over each issue.
First, Mr. Hulsey disputes the finality of the 1970 and
1971 rating decisions and the medical evidence on which
the VA relied. For example, he raises issues with the ade-
quacy of a January 1971 medical examination report, Ap-
pellant’s Br. 31–37, and disputes whether he presented
new and material evidence about his conditions to the VA
within one year of the 1970 rating decision, id. at 37–49.
Because these are factual contentions, we are unable to
consider these arguments. 3 38 U.S.C. § 7292(d)(2).
In support of this argument, Mr. Hulsey asserts 38
C.F.R. § 3.951(b). The Veterans Court determined, how-
ever, that Mr. Hulsey’s bronchitis “has not been continu-
ously rated at 100% for 20 or more years,” so “the potential
applicability of § 3.951(b) was not reasonably raised by the
record.” S.A. 8. For that reason, the Veterans Court held
that “the Board did not err by not addressing [§ 3.951(b)].”
S.A. 8. Because the Veterans Court did not interpret that
regulation in its decision and at most applied the
3 Notably, the Veterans Court previously considered
and rejected these arguments. See Hulsey v. Shinseki, No.
11-642, 2013 WL 5422976, at *3–5 (Vet. App. Sept. 30,
2013) (as amended).
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6 HULSEY v. MCDONOUGH
regulation to the facts of Mr. Hulsey’s case, we lack juris-
diction over this issue. 38 U.S.C. § 7292(d)(2).
Second, Mr. Hulsey makes a constitutional due process
argument. Appellant’s Br. 53–68. Mr. Hulsey asserts, as
he did before the Veterans Court, that the VA unlawfully
withheld or unreasonably delayed issuing statements of
the case in response to several of his notices of disagree-
ment, resulting in due process violations. Id. at 53–68; see
S.A. 40–41 (first citing Cushman v. Shinseki, 576 F.3d
1290, 1300 (Fed. Cir. 2009); and then citing 38 C.F.R.
§ 20.1000). Mr. Hulsey also argues the Veterans Court
erred by failing to address his due process arguments. The
Veterans Court recognized Mr. Hulsey’s due process argu-
ments, S.A. 4, and addressed them by holding that they
were “either undeveloped or insufficient to demonstrate
prejudicial error in the decision on appeal,” S.A. 9. Regard-
ing Mr. Hulsey’s argument that the Veterans Court erred
in finding no prejudicial error in the Board’s decision, we
lack jurisdiction to review such a factual finding. Conway
v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004) (explain-
ing that the effect of the rule of prejudicial error for a given
case is beyond our jurisdiction).
CONCLUSION
We have considered Mr. Hulsey’s remaining argu-
ments and find them unpersuasive. Because his appeal
does not raise issues within this court’s limited jurisdiction,
we dismiss.
DISMISSED
COSTS
No costs.