Case: 21-1830 Document: 19 Page: 1 Filed: 10/05/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIE B. CLAY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1830
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-1311, Chief Judge Margaret C.
Bartley.
______________________
Decided: October 5, 2021
______________________
WILLIE B. CLAY, Starkville, 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, MARTIN F. HOCKEY, JR., LOREN MISHA
PREHEIM.
______________________
Case: 21-1830 Document: 19 Page: 2 Filed: 10/05/2021
2 CLAY v. MCDONOUGH
Before LOURIE, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Willie Clay appeals from the decision of the Court of
Appeals for Veterans Claims (“the Veterans Court”) affirm-
ing a decision of the Board of Veterans’ Appeals (“the
Board”) deducting previously paid, non-service connected
pension benefits received by Clay from subsequently
awarded, retroactive service-connected disability compen-
sation for the same time period. See Clay v. McDonough,
No. 20-1311,
2021 WL 743875 (Vet. App. Feb. 26, 2021)
(“Decision”). Because Clay raises only factual issues over
which we lack jurisdiction, we dismiss the appeal.
BACKGROUND
Clay served on active duty in the Navy from May 1973
to January 1975. In a February 1998 rating decision, a De-
partment of Veterans’ Affairs (“VA”) Regional Office (“RO”)
granted Clay entitlement to non-service-connected pension
benefits with an effective date of April 1, 1995. After a se-
ries of subsequent rating decisions and appeals, Clay was
ultimately awarded an earlier effective date of Septem-
ber 12, 1988.
In June 2018, Clay was granted service connection for
schizophrenia. The RO assigned a 100% disability rating
with an effective date of January 22, 1985. Thus, Clay was
eligible for both pension benefits and compensation bene-
fits from September 12, 1988, the effective date of the pen-
sion benefit. Because the 100% compensation benefit was
higher than the pension benefit, the RO issued a lump-sum
retroactive payment based on Clay’s service connection for
schizophrenia, minus the amount of pension benefits that
Clay had previously received. After deducting amounts for
the previously paid pension benefits, the VA calculated
Clay’s retroactive lump-sum payment to be $450,805.77.
Clay appealed the VA’s decision to withhold the amount of
the previously paid pension benefits and, in response, the
Case: 21-1830 Document: 19 Page: 3 Filed: 10/05/2021
CLAY v. MCDONOUGH 3
RO issued a Statement of the Case concluding that the
withholding was proper.
Clay appealed to the Board. The Board concluded that
the deduction of non-service-connected pension benefits
was proper because the law prohibits the receipt of concur-
rent payment of compensation and pension for the same
period, citing
38 U.S.C. § 5304(a) (2012) and
38 C.F.R.
§ 3.700 (2019). Clay appealed the Board’s decision, and the
Veterans Court affirmed, holding that the Board’s decision
accords with governing law and was adequately explained.
Decision,
2021 WL 743875, at *2. To the extent that Clay
argued that he should receive both benefits based on prin-
ciples of equity, the court observed that it “lacks jurisdic-
tion to grant benefits that are not otherwise authorized by
law.”
Id. (citing Burris v. Wilkie,
888 F.3d 1352, 1357–61
(Fed. Cir. 2018)).
DISCUSSION
Clay appealed to this court. Our jurisdiction to review
decisions of the Veterans Court is limited. We may review
a decision of the Veterans Court with respect to a rule of
law or interpretation of a statute or regulation relied on by
the Veterans Court in its decision.
38 U.S.C. § 7292(a).
However, except with respect to constitutional issues, we
may not review challenges to factual determinations or
challenges to the application of a law or regulation to the
facts of a particular case.
Id. § 7292(d)(2).
On appeal, Clay appears principally to argue that the
VA should have granted service connection for schizophre-
nia in 1985 rather in 2018. If it had done so, according to
Clay, he never would have received non-service-connected
pension benefits, and therefore the service connection pay-
ments would not have been reduced by the amount of the
previously paid pension benefits.
The government responds that we lack jurisdiction
over this appeal because Clay challenges only the
Case: 21-1830 Document: 19 Page: 4 Filed: 10/05/2021
4 CLAY v. MCDONOUGH
application of law to the facts of this case. Specifically, the
government argues that the Board correctly applied the
statute and regulation prohibiting payment of both pension
and compensation benefits, and the interpretation of those
provisions is not at issue in this appeal. Even if Clay is
correct that the VA should have awarded service-connec-
tion in 1985, the government argues, the decision of the
Veterans Court should be affirmed because Clay was
awarded retroactive compensation to that date and there-
fore is not entitled to any damages.
We agree with the government that we lack jurisdic-
tion over this appeal. The relevant statute provides that
“not more than one award of pension [or] compensation . . .
shall be made concurrently to any person based on such
person’s own service . . . .”
38 U.S.C. § 5304(a)(1). The RO
applied this provision to determine that Clay’s retroactive
service-connection benefits must be reduced by the amount
of pension benefits already paid for the same period. The
Board and the Veterans Court affirmed the RO’s determi-
nation but did not otherwise interpret or elaborate upon
the meaning of the statute or its implementing regulation.
That determination is an application of law to fact that we
lack jurisdiction to review.
As for Clay’s argument that the VA should have
awarded service connection sooner, we agree with the gov-
ernment that his arguments are foreclosed by precedent.
“[F]actual findings of when a disability was claimed or ser-
vice connection established are not subject to our review.”
Butler v. Shinseki,
603 F.3d 922, 926 (Fed. Cir. 2010). And
to the extent that Clay implies that he is entitled to inter-
est for the period during which retroactive benefits were
awarded, “interest cannot be recovered in a suit against the
Government in the absence of an express waiver of sover-
eign immunity from an award of interest,” Library of Cong.
v. Shaw,
478 U.S. 310, 311 (1986), and Clay has not iden-
tified any such waiver.
Case: 21-1830 Document: 19 Page: 5 Filed: 10/05/2021
CLAY v. MCDONOUGH 5
Clay also raises a number of other arguments regard-
ing mistreatment during his service, allegedly lost or mis-
placed medical records relating to his claims, and problems
with an attorney who previously represented him before
the VA. But even liberally construed, these arguments are
not directed to the narrow issue addressed by the Board
and the Veterans Court—whether the RO properly de-
ducted previously-paid pension benefits—and in any event
relate to factual issues that we lack jurisdiction to review.
CONCLUSION
We have considered Clay’s remaining arguments but
find them unpersuasive. For the foregoing reasons, we dis-
miss the appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
