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`NOTE: This disposition is nonprecedential.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.
`
`

`

`Case: 22-1802 Document: 25 Page: 3 Filed: 11/08/2022
`
`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).
`
`

`

`Case: 22-1802 Document: 25 Page: 4 Filed: 11/08/2022
`
`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. 1–42;
`(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
`
`“Reply Br. __” refers to pages in Mr. Campbell’s in-
`2
`formal reply brief as numbered by operation of an elec-
`tronic file viewing system.
`
`

`

`Case: 22-1802 Document: 25 Page: 5 Filed: 11/08/2022
`
`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.
`
`

`

`Case: 22-1802 Document: 25 Page: 6 Filed: 11/08/2022
`
`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
`
`

`

`Case: 22-1802 Document: 25 Page: 7 Filed: 11/08/2022
`
`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.
`
`