Case: 22-1051 Document: 20 Page: 1 Filed: 06/08/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RUBEN G. HERRERA,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1051
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4109, Judge Coral Wong Pi-
etsch, Judge Joseph L. Toth, Judge Scott Laurer.
______________________
Decided: June 8, 2022
______________________
RUBEN G. HERRERA, San Antonio, TX, pro se.
ELINOR JOUNG KIM, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
Case: 22-1051 Document: 20 Page: 2 Filed: 06/08/2022
2 HERRERA v. MCDONOUGH
Before REYNA, HUGHES, and STOLL, Circuit Judges.
PER CURIAM.
Ruben G. Herrera appeals from a judgment of the
United States Court of Appeals for Veterans Claims affirm-
ing the decision of the Board of Veterans’ Appeals. For the
below reasons, we affirm-in-part and dismiss-in-part
Mr. Herrera’s appeal.
BACKGROUND
Mr. Herrera is an Army veteran who served on active
duty for a combined total of about 26 months in the period
from 1973 to 1976. Appx. 27. 1
In 2002, Mr. Herrera applied for veterans’ benefits,
claiming he had various disabilities that were connected to
his Army service. Appx. 82. In a November 2002 rating
decision, the Department of Veterans Affairs Houston Re-
gional Office (RO) denied Mr. Herrera’s benefits claims for
head trauma, tinnitus, and head scarring after finding that
these injuries were unrelated to Mr. Herrera’s service. Id.
Mr. Herrera appealed to the Board of Veterans’ Appeals,
which issued a February 2005 decision that denied service
connection for head injury and head scarring, and re-
manded Mr. Herrera’s tinnitus claim for further consider-
ation. Appx. 2. Mr. Herrera did not appeal this decision,
and the decision became final. Id.
In August 2011, Mr. Herrera filed another claim for
benefits, this time claiming tinnitus and residuals of a left-
side head injury (including headaches), which the Depart-
ment of Veterans Affairs (VA) expanded to include a claim
for traumatic brain injury (TBI). Appx. 2. In an April 2013
rating decision, the RO denied service connection for TBI
and residuals of a left-side head injury (including
1 Citations to “Appx.” refer to the appendix attached
to the Appellee’s Brief.
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HERRERA v. MCDONOUGH 3
headaches) but granted service connection for (1) tinnitus,
assigning an effective date of August 2011, and (2) bilateral
hearing loss, for which it assigned a noncompensable rat-
ing. Appx. 2–3. Mr. Herrera requested reconsideration of
the August 2011 RO decision, but the RO denied Mr. Her-
rera’s request to reopen his claim for service connection for
TBI and residuals of a head injury (including headaches)
in May 2015. Appx. 3. Mr. Herrera appealed to the Board
of Veterans’ Appeals, alleging the RO committed clear and
unmistakable error (CUE) in the April 2013 and November
2002 rating decisions. Id.
In May 2020, the Board reopened Mr. Herrera’s claim
for service connection for head scarring, having received
new and material evidence sufficient to reopen that claim,
but found on the merits that Mr. Herrera’s head scarring
was not service connected. Appx. 25. The Board denied
Mr. Herrera’s request for an increased, compensable disa-
bility rating for bilateral hearing loss. Id. The Board also
denied Mr. Herrera’s CUE motion to revise the RO’s No-
vember 2002 rating decision. Id. Mr. Herrera appealed to
the Court of Appeals for Veterans Claims (Veterans Court).
The Veterans Court affirmed. Appx. 4–7, 16.
Mr. Herrera 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 or the
application of law to fact by the Board, except for constitu-
tional claims.
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 “va-
lidity of any statute or any interpretation thereof, and to
interpret constitutional and statutory provisions, to the ex-
tent presented and necessary to a decision.” § 7292(c).
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4 HERRERA v. MCDONOUGH
On appeal, Mr. Herrera argues that the Veterans
Court erred by (1) making de novo fact findings and sus-
taining the Board’s decision on grounds he claims were dif-
ferent than those relied on by the Board; (2) failing to
consider new and material evidence regarding his disabil-
ity claims; (3) affirming the Board’s denial of his claims
that the RO committed clear and unmistakable error; and
(4) determining it lacked jurisdiction to review certain is-
sues Mr. Herrera had not previously raised before either
the RO or the Board. Appellant’s Br. 1–3. We address each
of Mr. Herrera’s arguments in turn.
Mr. Herrera first argues that the Veterans Court erred
by sustaining the Board’s decision on grounds he purports
to be different than those the Board relied on, and by alleg-
edly making de novo findings of fact. Appellant’s Br. 1–2.
We note that the Veterans Court’s opinion makes clear that
the court did not deny any of Mr. Herrera’s claims for rea-
sons other than those invoked by the Board; nor did it make
any of its own findings of fact. See Appx. 4–7. For example,
the Veterans Court explained that the Board denied ser-
vice connection for left side head scarring “because it found
that appellant did not have a current disability.” Appx. 6.
The Veterans Court “affirm[ed] this part of the Board’s de-
cision” because Mr. Herrera did not carry his burden of
showing error in the Board’s decision. Id. In other words,
the Veterans Court affirmed the Board’s decision based on
the same reason as the Board—that Mr. Herrera had not
sufficiently proven that he had a current disability (scar-
ring on the left side of the head) during the appeal. Id.
Regarding the Board’s other findings, the Veterans Court
similarly affirmed the Board’s decision based on the same
grounds as the Board. See generally Appx. 4–7. We thus
do not see that the Veterans Court erred.
Next, we turn to Mr. Herrera’s argument that he has
submitted new and material evidence sufficient to reopen
his claim for service connection for head scarring. Appel-
lant’s Br. 2. The Board may reopen a claim for benefits “[i]f
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HERRERA v. MCDONOUGH 5
new and relevant evidence is presented.”
38 U.S.C.
§ 5108(a); see also 38 C.F.R 3.156(a) (“A claimant may reo-
pen a finally adjudicated . . . claim by submitting new and
material evidence.”). Whether evidence presented by a vet-
eran is “new and material” is a finding of fact. See Living-
ston v. Derwinski,
959 F.2d 224, 225–26 (Fed. Cir. 1992).
The Board here found that Mr. Herrera had, in fact, sub-
mitted sufficient new and material evidence to reopen his
claim for service connection for head scarring. Appx. 29.
Accordingly, the Veterans Court appropriately did not re-
verse this favorable determination. Medrano v. Nicholson,
21 Vet. App. 165, 170 (2007) (“The Court is not permitted
to reverse findings of fact favorable to a claimant.”) (citing
38 U.S.C. § 7261(a)(4)).
Notwithstanding Mr. Herrera’s presentation of new
and material evidence, the Board found that Mr. Herrera
had not shown he had a current disability at any time dur-
ing the appeal and thus denied Mr. Herrera’s claim for ser-
vice connection for head scarring on the merits. Appx. 6,
29. The Veterans Court affirmed. Appx. 6. Mr. Herrera
now appeals the Veterans Court’s affirmance of the Board’s
denial of service connection based on the Board’s finding of
the absence of a current disability. The issue of whether a
veteran has a current disability is a finding of fact. See
McLendon v. Nicholson,
20 Vet. App. 79, 82 (2007). Be-
cause we may not review “a challenge to a factual determi-
nation,” we do not have jurisdiction to review this issue and
accordingly dismiss this part of Mr. Herrera’s appeal.
38 U.S.C. § 7292(d)(2).
We turn next to Mr. Herrera’s argument that the Vet-
erans Court erred by affirming the Board’s denial of his
claim that the RO committed clear and unmistakable error
in its November 2002 rating decision. Specifically,
Mr. Herrera argues that the court “failed in its statutory
mandate to account for prejudicial error” by not assessing
whether there was prejudice to him resulting from any
Case: 22-1051 Document: 20 Page: 6 Filed: 06/08/2022
6 HERRERA v. MCDONOUGH
Board error in concluding there was no CUE in the under-
lying decision. Appellant’s Br. 3.
As the Veterans Court explained, only final decisions
may be challenged on grounds of clear and unmistakable
error. Appx. 4. When the Board affirms an RO decision on
appeal on the same factual basis as the RO, the Board’s
decision precludes a veteran from challenging the original
RO decision based on clear and unmistakable error.
Id.
(citing
38 C.F.R. § 20.1104). The Veterans Court found no
clear error in the Board’s determination that because
Mr. Herrera appealed the RO’s November 2002 decision,
that RO decision was no longer final. Appx. 5. The Veter-
ans Court further affirmed the Board’s finding that the
Board’s February 2005 decision subsumed the November
2002 decision, thereby precluding Mr. Herrera from chal-
lenging the November 2002 decision based on CUE.
Appx. 4–5.
On appeal, Mr. Herrera challenges the Veterans
Court’s affirmance of the Board’s determination that the
RO’s November 2002 rating decision was not final and was
subsumed by the Board’s later decision. Whether a later
decision subsumes an earlier decision is a question of fact.
Morris v. West,
13 Vet. App. 94, 96 (1999); see also
38 U.S.C. § 7261(a)(4). Mr. Herrera thus challenges the
Board’s factual finding. We lack jurisdiction to review
Mr. Herrera’s challenge to a factual finding and therefore
dismiss this portion of his appeal.
Lastly, Mr. Herrera argues that the Veterans Court
erred in determining it lacked jurisdiction to review certain
issues not previously raised to or decided by the RO or the
Board. Appellant’s Br. 1–3. Before the Veterans Court,
Mr. Herrera raised new arguments for the first time re-
garding service connection and disability rating for various
claims, as well as challenging the Board’s February 2005
decision on grounds of CUE. As the Veterans Court ex-
plained, however, the Board did not consider or adjudicate
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HERRERA v. MCDONOUGH 7
these issues. Appx. 7. The Veterans Court cannot consider
matters that were not decided by the Board. See Ledford
v. West,
136 F.3d 776, 779 (Fed. Cir. 1998) (the Veterans
Court’s “jurisdiction is premised on and defined by the
Board’s decision concerning the matter being appealed”).
Therefore, the Veterans Court properly determined it had
no jurisdiction to consider these issues that were not raised
before, nor decided by, the Board. 2 We thus affirm the Vet-
erans Court’s determination that it lacked jurisdiction over
these claims.
We have considered Mr. Herrera’s remaining argu-
ments and find them unpersuasive.
CONCLUSION
For the above reasons, we affirm the Veterans Court’s
determination that it lacks jurisdiction over certain issues.
We dismiss the remainder of Mr. Herrera’s appeal for lack
of jurisdiction.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.
2 As the Veterans Court explained, while the Veter-
ans Court lacked jurisdiction over Mr. Herrera’s challenge
to the Board’s February 2005 decision based on CUE,
Mr. Herrera may pursue his CUE challenge at the Board.
See Appx. 5.
