Case: 20-1133 Document: 20 Page: 1 Filed: 06/04/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEWIS D. YOUNG,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1133
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-3388, Judge Joseph L. Falvey,
Jr.
______________________
Decided: June 4, 2020
______________________
LEWIS D. YOUNG, Horn Lake, MS, pro se.
MARIANA TERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN,
JR., LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, BRYAN
THOMPSON, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
Case: 20-1133 Document: 20 Page: 2 Filed: 06/04/2020
2 YOUNG v. WILKIE
______________________
Before PROST, Chief Judge, REYNA and TARANTO, Circuit
Judges.
PER CURIAM.
After about five years in the United States Navy, Lewis
Young was discharged from service in 1989 because of a left
knee condition. Upon discharge, he received disability sev-
erance pay from the Navy. A few months later, he was
granted disability benefits for the knee condition from the
Department of Veterans Affairs (VA), which informed him
that those benefits would not be paid to him until the sev-
erance payment was recouped. In 1992, Mr. Young failed
to comply with a requirement to appear at a medical-exam-
ination appointment, and in 1993 the VA terminated the
disability benefits.
In 2012, Mr. Young applied to the VA for a resumption
of disability benefits. Although the VA granted the claim,
it informed Mr. Young that he would not receive any bene-
fits until the yet-unrecouped part of the 1989 severance
payment had been recouped. Mr. Young appealed the de-
cision to resume the recoupment to the VA’s Board of Vet-
erans’ Appeals, arguing that the termination of benefits
two decades earlier was unlawful and, had that error not
occurred, the recoupment would already have been com-
pleted. The Board rejected the argument. The Court of
Appeals for Veterans Claims (Veterans Court) affirmed.
Young v. Wilkie,
2019 WL 4742990 (Vet. App. Sept. 30,
2019).
Mr. Young appeals. Because he has identified no legal
error committed by the Veterans Court in rejecting his
challenge, we dismiss the appeal for lack of jurisdiction.
I
Mr. Young began serving in the Navy in August 1984.
In July 1989, he was discharged because of a left knee
Case: 20-1133 Document: 20 Page: 3 Filed: 06/04/2020
YOUNG v. WILKIE 3
condition and received a disability severance payment of
$22,032 from the Navy. Shortly thereafter, Mr. Young ap-
plied for VA disability benefits for the knee condition, and
in October 1989, the relevant regional office of the VA de-
termined that Mr. Young’s knee condition was connected to
his Navy service and assigned him a 10% disability rating.
But, in accordance with 10 U.S.C. § 1212(d)(1), the regional
office also determined that it would withhold benefits until
the $22,032 severance payment was recouped.
In October 1992, the VA informed Mr. Young that it
was “going to schedule [him] for an examination to see if
[his] disability ha[d] changed.” The VA implored Mr.
Young to “be sure to show up for the examination” and
stated that it could “lower or stop [his] benefit payments if
[he] d[id] not keep the appointment without a good reason.”
The VA subsequently scheduled Mr. Young’s examination
for November 2, 1992.
Mr. Young did not attend the examination. In Decem-
ber 1992, the VA sent Mr. Young a letter stating that it
would terminate his benefits if he did not “agree to report
for the examination.” In March 1993, after Mr. Young
failed to schedule an examination, the VA terminated his
benefits, sending him a letter informing him of the termi-
nation, and thus ceased recouping Mr. Young’s severance
payment.
In January 2012, Mr. Young submitted a disability
claim for the same knee condition. The regional office
granted the claim but informed Mr. Young that the VA had
previously recouped only $3,139 of his severance payment
(during the earlier disability-benefits period, from August
1989 to March 1993) and that it needed to recoup an addi-
tional $18,893 before paying any benefits to him. Mr.
Young appealed the resumption of recoupment. He argued
that the VA should disregard the March 1993 termination
and act on the assumption that it had never occurred—
which, if true, would have meant that the 1989 severance
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4 YOUNG v. WILKIE
payment would have been fully recouped well before 2012,
leaving nothing left to recoup when beginning payment of
the new benefits. The reason to disregard the 1993 termi-
nation, Mr. Young asserted, was that the VA had not sent
him notice of the November 1992 medical examination or
of the March 1993 decision to terminate his benefits.
In April 2018, the Board affirmed the regional office’s
decision. The Board noted that the “presumption of regu-
larity” obligated Mr. Young to present clear evidence that
the VA had failed to provide him notice of the March 1993
termination decision (or of the December 1992 warning of
termination). S.A. 12–13. Because Mr. Young had not sub-
mitted such evidence, the Board “presume[d] that the De-
cember 1992 and March 1993 letters were sent to Mr.
Young” and concluded that Mr. Young could not challenge
the VA’s 1993 termination of benefits. S.A. 13.
Mr. Young appealed to the Veterans Court and submit-
ted, for the first time, a handwritten letter that he had sent
to the VA in December 1992. Appellant’s Rebuttal Br. at
3, Young v. Wilkie,
2019 WL 4742990 (Vet. App. Sept. 30,
2019). Arguing that this letter was proof that he had re-
sponded to the VA’s request to schedule an examination,
Mr. Young “request[ed] it be placed into the file, and sub-
mitted at Page 561.”
Id.
In September 2019, the Veterans Court denied Mr.
Young’s appeal, concluding that Mr. Young had “received
proper notice that VA intended to stop payment of and re-
coupment from his disability compensation and then re-
ceived proper notice when VA stopped both activities.”
Young,
2019 WL 4742990, at *3. In that circumstance, be-
cause Mr. Young in 1993 had “failed to appeal those deter-
minations,” the Veterans Court could “not disturb the
finality of those decisions.”
Id. Addressing the newly sub-
mitted December 1992 letter from Mr. Young, the Veterans
Court wrote that the “time for Mr. Young to raise any
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YOUNG v. WILKIE 5
potential procedural issue was before VA” and thus “de-
cline[d] to consider the issue.”
Id. at *5.
Mr. Young timely appealed to this court. We have ju-
risdiction to consider legal issues raised by the Veterans
Court’s decision. See 38 U.S.C. § 7292(d)(1). Where, as
here, no constitutional issue is presented, we do not have
jurisdiction to review “a challenge to a factual determina-
tion” or “a challenge to a law or regulation as applied to the
facts of a particular case.”
Id., § 7292(d)(2).
II
Mr. Young’s appeal depends on challenging the termi-
nation of benefits in March 1993. But he has raised no con-
stitutional issue and identified no legal error in the
Veterans Court’s decision that the March 1993 termination
has long been final. For that reason, Mr. Young’s appeal is
outside our jurisdiction.
Affirming the Board, the Veterans Court determined,
based on the presumption of regularity and the record evi-
dence, that the VA sent Mr. Young notice of the March 1993
termination. Young,
2019 WL 4742990, at *1, *3. No legal
error has been identified in that determination, which we
therefore lack jurisdiction to question. See Butler v. Prin-
cipi,
244 F.3d 1337, 1340 (Fed. Cir. 2001). Once that de-
termination about notice of the 1993 termination is
accepted, it follows as a matter of well-established law that
the 1993 termination became final when Mr. Young did not
appeal it. Cook v. Principi,
318 F.3d 1334, 1336–37 (Fed.
Cir. 2002); 38 U.S.C. § 7105(c). Mr. Young has not invoked
the statutory exceptions to finality of a regional office deci-
sion for new and material evidence and clear and unmis-
takable error. See
Cook, 318 F.3d at 1337 (discussing 38
U.S.C. §§ 5108, 5109A). There is, accordingly, no basis
within our limited grant of jurisdiction for us to question
the termination of benefits in March 1993.
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6 YOUNG v. WILKIE
Mr. Young asserts that he did not receive notice of the
November 1992 medical-examination appointment—his
absence from which, and subsequent failure to schedule a
substitute appointment, led to the March 1993 termination
of benefits. In support of that assertion, Mr. Young has
relied on a letter he sent to the VA in December 1992. The
Veterans Court, besides questioning the implications of
that letter, explained that Mr. Young had failed to submit
that letter to the Board, making the submission too late.
Young,
2019 WL 4742990, at *4–5. Mr. Young identifies no
statement of an incorrect legal standard in that conclusion.
See, e.g., Scott v. McDonald,
789 F.3d 1375, 1377 (Fed. Cir.
2015). In any event, the letter cannot help Mr. Young here
even if it established an absence of notice of the November
1992 appointment. Such absence might have been a
ground for Mr. Young to challenge the March 1993 termi-
nation in a timely appeal of that termination, but it does
not establish lack of notice of the termination decision itself
and therefore is not a ground for disturbing the finality of
that decision where the narrow exceptions to finality have
not been invoked and proved applicable. Without a basis
for disturbing the finality of the 1993 termination decision,
Mr. Young has no basis for challenging the VA’s decision to
continue the recoupment of the 1989 severance payment.
III
Because Mr. Young has not raised any challenge within
our jurisdiction, we dismiss this appeal.
Each party shall bear its own costs.
DISMISSED
