Case: 23-1386 Document: 39 Page: 1 Filed: 04/18/2024
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ROBERT E. RANDOLPH,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2023-1386
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 20-5809, Judge Coral Wong Pi-
`etsch, Judge Michael P. Allen, Judge William S. Green-
`berg.
`
`______________________
`
`Decided: April 18, 2024
`______________________
`
`ROBERT E. RANDOLPH, Baton Rouge, LA, pro se.
`
`
` KELLY GEDDES, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, for respondent-appellee. Also represented by
`BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
`MCCARTHY; BRIAN D. GRIFFIN, DEREK SCADDEN, Office of
`
`

`

`Case: 23-1386 Document: 39 Page: 2 Filed: 04/18/2024
`
`2
`
`RANDOLPH v. MCDONOUGH
`
`General Counsel, United States Department of Veterans
`Affairs, Washington, DC.
` ______________________
`
`Before LOURIE, REYNA, and CUNNINGHAM, Circuit Judges.
`PER CURIAM.
`Claimant-Appellant Robert E. Randolph appeals pro se
`from a June 16, 2022 United States Court of Appeals for
`Veterans Claims (“Veterans Court”) decision, Randolph v.
`McDonough, No. 20-5809, 2022 WL 2167995 (Vet. App.
`June 16, 2022) (“Decision”), affirming a July 1, 2020 Board
`of Veterans’ Appeals (“Board”) order that dismissed Mr.
`Randolph’s clear and unmistakable error (“CUE”) claim re-
`lating to his June 1987 rating decision, S. App’x 11–14.1
`Specifically, Mr. Randolph’s CUE claim was dismissed as
`moot because the Veterans Court found the June 1987 rat-
`ing decision was not final as to the denial of sinusitis. S.
`App’x 14. For the reasons discussed below, we dismiss Mr.
`Randolph’s appeal for lack of jurisdiction.
`I. BACKGROUND
`Mr. Randolph served honorably in the U.S. Marine
`Corps from 1981 to 1984. Decision at *2. In January 1985,
`Mr. Randolph filed a claim for disability benefits. Id.; S.
`App’x 40–43. In June 1985, he received a rating decision
`granting benefits for service-connected hypertension and
`reactive airway disease (“RAD”) with obstructive ventila-
`tory impairment. S. App’x 44.
`In March 1987, Mr. Randolph filed a request for
`“reevaluation of [his] sinus condition.” S. App’x 45. In June
`1987, the Department of Veterans Affairs (“VA”) issued a
`rating decision denying service connection for the claimed
`
`
`“S. App’x” refers to the corrected supplemental ap-
`1
`pendix, ECF No. 24, filed by the Respondent-Appellee.
`
`

`

`Case: 23-1386 Document: 39 Page: 3 Filed: 04/18/2024
`
`RANDOLPH v. MCDONOUGH
`
`3
`
`sinus condition. Decision at *2; S. App’x 47–48. This deci-
`sion was then treated as final. Decision at *2; see also S.
`App’x 59.
`Mr. Randolph, now referring to his sinus condition as
`sinusitis, requested an increase in his RAD rating and re-
`quested an amendment to his claim to include service con-
`nection for chronic sinusitis, deviated septum, and sleep
`apnea in January 2008. S. App’x 57; see also S. App’x 58–
`60. In February 2009, the VA issued a new rating decision
`that continued Mr. Randolph’s RAD and hypertension rat-
`ings without increasing them and denied Mr. Randolph’s
`request for service connection for a sinus condition, devi-
`ated septum, and sleep apnea. S. App’x 58–60. In the 2009
`rating decision, the VA asserted that Mr. Randolph had
`been “previously denied service connection for [a sinus]
`condition;” Mr. Randolph had not timely appealed that de-
`cision; and that June 1987 rating decision was final. S.
`App’x 59. In response, Mr. Randolph filed a Notice of Dis-
`agreement, alleging that he “d[id] not recall filing the
`claim” for sinusitis and had no “recollection of ever having
`received a copy of any decision in that regard” (i.e., the
`June 1987 rating decision). S. App’x 61–62.
`In June 2012, the VA regional office (“RO”) issued a
`Statement of the Case, reiterating that the June 1987 rat-
`ing decision was final and stating that the decision “d[id]
`not contain clear and unmistakable error.” S. App’x 64–66;
`Decision at *2. Mr. Randolph subsequently appealed to the
`Board, arguing that he had included in his March 1987 fil-
`ing informal claims of sinusitis and rhinitis, and that the
`VA had erred in denying those claims because the June
`1987 decision had resulted from CUE. S. App’x 68; see gen-
`erally S. App’x 67–76. In December 2014, the Board upheld
`the RO’s findings of finality and no CUE. Decision at *2;
`S. App’x 79–80, 84, 91. Mr. Randolph then appealed to the
`Veterans Court, once again arguing that the June 1987 de-
`cision was nonfinal because he had never received it. De-
`cision at *2; S. App’x 112.
`
`

`

`Case: 23-1386 Document: 39 Page: 4 Filed: 04/18/2024
`
`4
`
`RANDOLPH v. MCDONOUGH
`
`In August 2016, the Veterans Court vacated the
`Board’s December 2014 decision and remanded for further
`proceedings because the Board had “failed to provide an
`adequate statement of reasons or bases for its determina-
`tion that the June 22, 1987[] rating decision was final and
`that the appellant ha[d] not rebutted the presumption of
`regularity that VA notified him of that rating decision.”
`Randolph v. McDonald, No. 15-1380, 2016 WL 4247148, at
`*2 (Vet. App. Aug. 11, 2016); S. App’x 110–14.
`In December 2017, the Board again found the June
`1987 rating decision was final and denied Mr. Randolph’s
`motion for revision of that rating decision based on CUE.
`Decision at *3. Mr. Randolph again appealed to the Veter-
`ans Court. Id.
`In February 2019, the Veterans Court reversed the
`Board’s December 2017 decision that the June 1987 rating
`decision was final, otherwise vacated the Board’s Decem-
`ber 2017 decision, and remanded the matter to the Board
`for re-adjudication. Randolph v. Wilkie, No. 17-4864, 2019
`WL 848748, at *3–4 (Vet. App. Feb. 22, 2019); S. App’x 119.
`On remand, in July 2020, the Board concluded it “ha[d]
`no jurisdiction to adjudicate the merits of the motion for
`revision of the June 1987 rating decision based on clear and
`unmistakable error” because the June 1987 rating decision
`was now nonfinal as to the denial of service connection for
`sinusitis and thus Mr. Randolph’s CUE motion was not
`ripe for appeal. S. App’x 11, 13; Decision at *3. The Board
`referred the matter “to the agency of original jurisdiction
`(AOJ) for consideration and any action deemed appropri-
`ate.” S. App’x 13. It also noted that his remaining argu-
`ments were not properly before the Board, because Mr.
`Randolph did not perfect the corresponding appeals. S.
`App’x 12, 14. Mr. Randolph appealed the Board’s July 2020
`decision to the Veterans Court. Decision at *3.
`In June 2022, the Veterans Court affirmed the Board’s
`July 2020 decision. Decision at *3. It noted that because
`
`

`

`Case: 23-1386 Document: 39 Page: 5 Filed: 04/18/2024
`
`RANDOLPH v. MCDONOUGH
`
`5
`
`“the June 1987 rating decision was not final and . . . CUE
`motions can attack only final decisions,” Mr. Randolph’s
`“motion for revision based on CUE was moot,” and “[t]he
`matter has been properly returned to the RO because the
`[Veterans] Court found that the RO never properly notified
`the appellant of the June 1987 rating decision.” Id. This
`appeal followed.
`
`II. DISCUSSION
`Our jurisdiction to review decisions of the Veterans
`Court is limited. Cavaciuti v. McDonough, 75 F.4th 1363,
`1366 (Fed. Cir. 2023). We may review “all relevant ques-
`tions of law, including interpreting constitutional and stat-
`utory provisions.” 38 U.S.C. § 7292(d)(1). Except with
`respect to constitutional issues, we “may not review (A) a
`challenge to a factual determination, or (B) a challenge to
`a law or regulation as applied to the facts of a particular
`case.” 38 U.S.C. § 7292(d)(2). As we explain below, we are
`without jurisdiction to address the issues raised by Mr.
`Randolph’s appeal.
`Mr. Randolph argues that “[t]he Veterans Court erred
`in its application of a rule of law and the interpretation of
`a statute when it determined that the Board did not err
`when it dismissed [his] appeal, rather than remanding or
`referring the matter back to the regional office for further
`adjudication.” Attachment to Appellant’s Br. 1 (emphases
`added); see also Appellant’s Br. 2 (“[T]he Board and the
`Veterans Court did not properly apply the rule of law set
`forth by this Court in AG v. Peak . . . .”).
`Appeals generally challenging the Veterans Court’s ap-
`plication of a rule of law to the facts of a specific case fall
`outside this court’s jurisdiction. See 38 U.S.C. § 7292(d)(2);
`Leonard v. Gober, 223 F.3d 1374, 1376 (Fed. Cir. 2000)
`(“Section 7292(d)(2) expressly bars us from reviewing chal-
`lenges to the application of law to the facts of a particular
`case.”). Mr. Randolph’s arguments concerning the pur-
`ported failure of the Veterans Court to correctly apply a
`
`

`

`Case: 23-1386 Document: 39 Page: 6 Filed: 04/18/2024
`
`6
`
`RANDOLPH v. MCDONOUGH
`
`rule of law to his case therefore fail to establish our juris-
`diction over this appeal.
`In his opening brief, Mr. Randolph acknowledges that
`the Veterans Court’s decision did not involve the validity
`or interpretation of a statute or regulation and that the
`Veterans Court did not decide any constitutional issues.
`Appellant’s Br. 1–2. In an effort to salvage jurisdiction, Mr.
`Randolph argues in his reply brief that the Veterans Court
`improperly interpreted 38 C.F.R. § 3.103.2 Appellant’s Re-
`ply Br. 5. However, Mr. Randolph fails to explain how any
`interpretation of 38 C.F.R. § 3.103, which broadly ad-
`dresses procedural due process and other rights of veterans
`before the VA, has affected his case or even what portion of
`that lengthy regulation he believes is at issue. See Appel-
`lant’s Reply Br. 5. Mr. Randolph’s “mere recitation of a ba-
`sis for jurisdiction” is therefore insufficient to establish our
`jurisdiction over this appeal. Livingston v. Derwinski, 959
`F.2d 224, 225 (Fed. Cir. 1992); see also Helfer v. West, 174
`F.3d 1332, 1335 (Fed. Cir. 1999) (explaining that jurisdic-
`tion that is otherwise lacking is not conferred by “simply
`put[ting] a ‘due process’ label on [a] contention” that is
`“constitutional in name only”).
`To support his assertion that we have jurisdiction over
`this appeal, Mr. Randolph cites Bean v. McDonough, 66
`F.4th 979 (Fed. Cir. 2023). Appellant’s Reply Br. 10. How-
`ever, that case is inapposite. In Bean, this court had to
`determine whether
`“the Veterans Court correctly
`
`2 Mr. Randolph also clarifies that his legal interpre-
`tation argument, first raised in his reply brief on appeal, is
`solely focused on this regulation rather than another stat-
`ute. See Appellant’s Reply Br. 5 (“The only issue in this
`appeal is my entitlement to the due process protections set
`forth in 38 C[.]F[.]R[.] [§] 3.103, and the Board’s interpre-
`tation of that statute following the Veterans Court’s re-
`mand . . . .”) (emphasis added).
`
`

`

`Case: 23-1386 Document: 39 Page: 7 Filed: 04/18/2024
`
`RANDOLPH v. MCDONOUGH
`
`7
`
`interpreted the legal requirements of . . . the Board’s juris-
`dictional statute[] and . . . its own jurisdictional statute.”
`66 F.4th at 987. The issue of the Veterans Court’s inter-
`pretation of a statute therefore fell squarely within our ju-
`risdiction. See id.; 38 U.S.C. § 7292(d)(1). Here, Mr.
`Randolph fails to explain how the Veterans Court’s deci-
`sion in any way interpreted the legal requirements of any
`rule of law or statute, much less either its or the Board’s
`jurisdictional statute, nor does he urge an interpretation
`that would have led the Veterans Court to an alternative
`disposition.
`Mr. Randolph further argues that the Board erred in
`holding that only one of his four claims was before it on
`appeal and that it should have found that all four of his
`claims were before the Board. Appellant’s Reply Br. 2. To
`the extent Mr. Randolph challenges the Board’s under-
`standing of the precise scope of the 1987 claim referred to
`the RO for issuance of additional decisions, id. at 2, 4–5, we
`lack jurisdiction over such factual disputes and arguments
`concerning the application of law to facts. 38 U.S.C.
`§ 7292(d)(2); see also Comer v. Peake, 552 F.3d 1362, 1372
`(Fed. Cir. 2009) (“Whether a veteran has raised a particu-
`lar claim is a factual determination, outside the purview of
`our appellate authority.”); Bonner v. Nicholson, 497 F.3d
`1323, 1328 (Fed. Cir. 2007) (“[T]he interpretation of the
`1975 claim is essentially a factual inquiry, and it is beyond
`our jurisdiction to make that determination.”) (internal
`quotation marks and citation omitted). And any error the
`Board made in determining the scope of the 1987 claim
`would have no bearing on its decision to dismiss for lack of
`jurisdiction because there would still be no final decision to
`support a CUE motion. See 38 C.F.R. § 3.105(a) (“At any
`time after a decision is final, the claimant may request, or
`VA may initiate, review of the decision to determine if
`there was a clear and unmistakable error in the decision.”)
`(emphasis added). The appropriate avenue to challenge ei-
`ther the Board’s or the Veterans Court’s interpretation of
`
`

`

`Case: 23-1386 Document: 39 Page: 8 Filed: 04/18/2024
`
`8
`
`RANDOLPH v. MCDONOUGH
`
`the scope of the 1987 claim is to appeal any newly issued
`RO decisions. As for this appeal, “look[ing] to the true na-
`ture of the action,” Livingston, 959 F.2d at 225, we find no
`issue involving the validity or interpretation of any statute,
`regulation, or rule of law over which we can assert jurisdic-
`tion. See 38 U.S.C. § 7292(a). Mr. Randolph’s claims thus
`lie beyond this court’s jurisdiction. See id. § 7292(d)(2).
`III. CONCLUSION
`We have considered Mr. Randolph’s other arguments
`and find that none of the arguments raises a nonfrivolous
`issue over which we can assert jurisdiction. For these rea-
`sons, we dismiss Mr. Randolph’s appeal.
`DISMISSED
`COSTS
`
`No costs.
`
`