Case: 20-2170 Document: 39 Page: 1 Filed: 07/23/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LARRY B. WINDHAM,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-2170
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-1216, Judge Michael P. Allen.
______________________
Decided: July 23, 2021
______________________
ETHAN MARON, Lieberman & Mark, LLP, Washington,
DC, argued for claimant-appellant. Also represented by
JEANY MARK.
IN KYU CHO, Civil Division, Commercial Litigation
Branch, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR.; MEGHAN ALPHONSO, Y. KEN LEE,
Case: 20-2170 Document: 39 Page: 2 Filed: 07/23/2021
2 WINDHAM v. MCDONOUGH
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before CHEN, CLEVENGER, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Larry Windham appeals the decision of the United
States Court of Veterans Claims that affirmed the decision
of the Board of Veterans’ Appeals denying service connec-
tion for chronic fatigue. For the reasons below, we dismiss
Mr. Windham’s appeal for lack of jurisdiction.
I
Mr. Windham served honorably in the United States
Air Force from August 1980 through September 1992.
Windham v. Wilkie, No. 19-1216,
2020 WL 1238326, at *1
(Vet. App. Mar. 16, 2020). In October 2009, Mr. Windham
filed a claim for service connection for multiple disabilities,
including a sleep and fatigue disorder. He had a medical
exam in May 2010, amended in June 2010, which noted
that Mr. Windham “ha[d] noted some fatigue for the past
3–4 years but . . . not on a daily basis.” J.A. 36–37. It also
reported that he worked as a charter bus driver, frequently
driving through the night, and that his sleep schedule was
therefore inconsistent.
Id. The medical report opined that
his fatigue and sleep disturbances were likely caused by his
inconsistent sleeping schedule, and “less likely as not
caused by or a result of a specific exposure event experi-
enced . . . during service in Southwest Asia.”
Id. In an Au-
gust 2010 rating decision, the VA regional office denied Mr.
Windham’s claim.
Mr. Windham appealed to the Board in February 2012,
and the Board denied entitlement to service connection for
fatigue in December 2016. Mr. Windham then sought re-
view in the Veterans Court. He argued that the Board did
not provide an adequate statement of reasons or bases for
Case: 20-2170 Document: 39 Page: 3 Filed: 07/23/2021
WINDHAM v. MCDONOUGH 3
denying service connection for fatigue because it did not
consider certain VA treatment records noting low energy
and insomnia or certain lay statements made by Mr. Wind-
ham. Windham,
2020 WL 1238326, at *1. In a March 2020
memorandum decision, a single judge of the Veterans
Court agreed with Mr. Windham that the Board did not
address certain VA treatment records or his lay state-
ments. But the single judge also found that the Board pro-
vided an adequate bases for its decision to deny service
connection, because “the Board found no evidence of record
that a nexus exists between any present disability and ser-
vice warranting service connection for fatigue.” Id. at *2.
Thus, the Veterans Court found that there was no prejudi-
cial error in the Board’s decision to deny service connection
for fatigue. In May 2020, the Veterans Court granted Mr.
Windham’s motion for panel review, and a majority of the
panel adopted the single-judge decision as the decision of
the court. J.A. 2–4.
II
We have limited jurisdiction to review decisions by the
Veterans Court. We decide “all relevant questions of law,
including interpreting constitutional and statutory provi-
sions.”
38 U.S.C. § 7292(d)(1). But we lack jurisdiction to
review factual issues and the application of law to fact, un-
less a constitutional question is presented. See Cook v.
Principi,
353 F.3d 937, 939 (Fed. Cir. 2003); see also
38
U.S.C. § 7292(d)(2).
Mr. Windham argues that the Veterans Court erred in
finding no prejudicial error, but this is an issue of applica-
tion of law to fact that we lack jurisdiction to review. See,
e.g., Pitts v. Shinseki,
700 F.3d 1279, 1286–87 (Fed. Cir.
2012). Mr. Windham also argues that this case involves the
VA’s obligation under 38 U.S.C. § 5103A(d)(2) to assist
claimants through the provision of an adequate medical ex-
amination or opinion. However, because Mr. Windham
makes this argument for the first time on appeal and did
Case: 20-2170 Document: 39 Page: 4 Filed: 07/23/2021
4 WINDHAM v. MCDONOUGH
not raise it before the Board or the Veterans Court, we de-
cline to consider it. 1
III
Because we lack jurisdiction to review the Veterans
Court’s finding of no prejudicial error by the Board, we dis-
miss.
DISMISSED
No costs.
1 As the Secretary noted in his brief, Mr. Windham
is able to obtain a new medical opinion and advance a new
claim based on new and material evidence, as appropriate.
See
38 C.F.R. § 3.156 (for legacy claims);
38 C.F.R. § 3.2501
(for supplemental claims based on new and relevant evi-
dence under the modernized review system).
