Case: 22-1183 Document: 33 Page: 1 Filed: 09/07/2022
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
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`CLIFFORD M. MOFFETT,
`Claimant-Appellant
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`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2022-1183
`______________________
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`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 20-4438, Senior Judge Robert N.
`Davis.
`
`______________________
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`Decided: September 7, 2022
`______________________
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`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
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`Case: 22-1183 Document: 33 Page: 2 Filed: 09/07/2022
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`MOFFETT v. MCDONOUGH
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`General Counsel, United States Department of Veterans
`Affairs, Washington, DC.
`______________________
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`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
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`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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`MOFFETT v. MCDONOUGH
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`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
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`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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`MOFFETT v. MCDONOUGH
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`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
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`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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`MOFFETT v. MCDONOUGH
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`CONCLUSION
`Accordingly, we affirm-in-part and dismiss-in-part the
`judgment of the Veterans Court.
`AFFIRMED-IN-PART AND DISMISSED-IN-PART
`COSTS
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`No costs.
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