Case: 20-2170 Document: 39 Page: 1 Filed: 07/23/2021
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LARRY B. WINDHAM,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2020-2170
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 19-1216, Judge Michael P. Allen.
`______________________
`
`Decided: July 23, 2021
`______________________
`
`ETHAN MARON, Lieberman & Mark, LLP, Washington,
`DC, argued for claimant-appellant. Also represented by
`JEANY MARK.
`
` IN KYU CHO, Civil Division, Commercial Litigation
`Branch, United States Department of Justice, Washington,
`DC, argued for respondent-appellee. Also represented by
`BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ROBERT
`EDWARD KIRSCHMAN, JR.; MEGHAN ALPHONSO, Y. KEN LEE,
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LARRY B. WINDHAM,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2020-2170
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 19-1216, Judge Michael P. Allen.
`______________________
`
`Decided: July 23, 2021
`______________________
`
`ETHAN MARON, Lieberman & Mark, LLP, Washington,
`DC, argued for claimant-appellant. Also represented by
`JEANY MARK.
`
` IN KYU CHO, Civil Division, Commercial Litigation
`Branch, United States Department of Justice, Washington,
`DC, argued for respondent-appellee. Also represented by
`BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ROBERT
`EDWARD KIRSCHMAN, JR.; MEGHAN ALPHONSO, Y. KEN LEE,
`
`
`
`Case: 20-2170 Document: 39 Page: 2 Filed: 07/23/2021
`
`2
`
`WINDHAM v. MCDONOUGH
`
`Office of General Counsel, United States Department of
`Veterans Affairs, Washington, DC.
` ______________________
`
`Before CHEN, CLEVENGER, and HUGHES, Circuit Judges.
`HUGHES, Circuit Judge.
`Larry Windham appeals the decision of the United
`States Court of Veterans Claims that affirmed the decision
`of the Board of Veterans’ Appeals denying service connec-
`tion for chronic fatigue. For the reasons below, we dismiss
`Mr. Windham’s appeal for lack of jurisdiction.
`I
`Mr. Windham served honorably in the United States
`Air Force from August 1980 through September 1992.
`Windham v. Wilkie, No. 19-1216, 2020 WL 1238326, at *1
`(Vet. App. Mar. 16, 2020). In October 2009, Mr. Windham
`filed a claim for service connection for multiple disabilities,
`including a sleep and fatigue disorder. He had a medical
`exam in May 2010, amended in June 2010, which noted
`that Mr. Windham “ha[d] noted some fatigue for the past
`3–4 years but . . . not on a daily basis.” J.A. 36–37. It also
`reported that he worked as a charter bus driver, frequently
`driving through the night, and that his sleep schedule was
`therefore inconsistent. Id. The medical report opined that
`his fatigue and sleep disturbances were likely caused by his
`inconsistent sleeping schedule, and “less likely as not
`caused by or a result of a specific exposure event experi-
`enced . . . during service in Southwest Asia.” Id. In an Au-
`gust 2010 rating decision, the VA regional office denied Mr.
`Windham’s claim.
`Mr. Windham appealed to the Board in February 2012,
`and the Board denied entitlement to service connection for
`fatigue in December 2016. Mr. Windham then sought re-
`view in the Veterans Court. He argued that the Board did
`not provide an adequate statement of reasons or bases for
`
`
`
`Case: 20-2170 Document: 39 Page: 3 Filed: 07/23/2021
`
`WINDHAM v. MCDONOUGH
`
`3
`
`denying service connection for fatigue because it did not
`consider certain VA treatment records noting low energy
`and insomnia or certain lay statements made by Mr. Wind-
`ham. Windham, 2020 WL 1238326, at *1. In a March 2020
`memorandum decision, a single judge of the Veterans
`Court agreed with Mr. Windham that the Board did not
`address certain VA treatment records or his lay state-
`ments. But the single judge also found that the Board pro-
`vided an adequate bases for its decision to deny service
`connection, because “the Board found no evidence of record
`that a nexus exists between any present disability and ser-
`vice warranting service connection for fatigue.” Id. at *2.
`Thus, the Veterans Court found that there was no prejudi-
`cial error in the Board’s decision to deny service connection
`for fatigue. In May 2020, the Veterans Court granted Mr.
`Windham’s motion for panel review, and a majority of the
`panel adopted the single-judge decision as the decision of
`the court. J.A. 2–4.
`
`II
`We have limited jurisdiction to review decisions by the
`Veterans Court. We decide “all relevant questions of law,
`including interpreting constitutional and statutory provi-
`sions.” 38 U.S.C. § 7292(d)(1). But we lack jurisdiction to
`review factual issues and the application of law to fact, un-
`less a constitutional question is presented. See Cook v.
`Principi, 353 F.3d 937, 939 (Fed. Cir. 2003); see also 38
`U.S.C. § 7292(d)(2).
`Mr. Windham argues that the Veterans Court erred in
`finding no prejudicial error, but this is an issue of applica-
`tion of law to fact that we lack jurisdiction to review. See,
`e.g., Pitts v. Shinseki, 700 F.3d 1279, 1286–87 (Fed. Cir.
`2012). Mr. Windham also argues that this case involves the
`VA’s obligation under 38 U.S.C. § 5103A(d)(2) to assist
`claimants through the provision of an adequate medical ex-
`amination or opinion. However, because Mr. Windham
`makes this argument for the first time on appeal and did
`
`
`
`Case: 20-2170 Document: 39 Page: 4 Filed: 07/23/2021
`
`4
`
`WINDHAM v. MCDONOUGH
`
`not raise it before the Board or the Veterans Court, we de-
`cline to consider it.1
`
`III
`Because we lack jurisdiction to review the Veterans
`Court’s finding of no prejudicial error by the Board, we dis-
`miss.
`
`DISMISSED
`
`No costs.
`
`
`1 As the Secretary noted in his brief, Mr. Windham
`is able to obtain a new medical opinion and advance a new
`claim based on new and material evidence, as appropriate.
`See 38 C.F.R. § 3.156 (for legacy claims); 38 C.F.R. § 3.2501
`(for supplemental claims based on new and relevant evi-
`dence under the modernized review system).
`
`
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