Case: 21-2224 Document: 14 Page: 1 Filed: 03/10/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ISAAC LYNCH, JR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2224
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4569, Judge William S. Green-
berg.
______________________
Decided: March 10, 2022
______________________
ISAAC J. LYNCH, JR., Petersburg, VA, 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, CLAUDIA BURKE, PATRICIA M.
MCCARTHY.
______________________
Case: 21-2224 Document: 14 Page: 2 Filed: 03/10/2022
2 LYNCH v. MCDONOUGH
Before PROST, BRYSON, and STOLL, Circuit Judges.
PER CURIAM.
Isaac Lynch, Jr. appeals from a judgment of the United
States Court of Appeals for Veterans Claims affirming-in-
part and dismissing-in-part the decision of the Board of
Veterans’ Appeals. For the below reasons, we affirm-in-
part and dismiss-in-part Mr. Lynch’s appeal.
BACKGROUND
Mr. Lynch participated in the Reserve Officer Training
Corps (ROTC) Program’s summer camp in 1969 and served
on active duty in the U.S. Army from September to Decem-
ber 1970. Since his discharge, Mr. Lynch has raised, and
the Veterans Administration (VA) has adjudicated, numer-
ous claims for benefits, many of which we addressed in a
previous appeal. See Lynch v. Shinseki, 476 F. App’x 401
(Fed. Cir. 2012) (Lynch I).
In the years since Lynch I, Mr. Lynch has sought to re-
open prior claims or assert new claims. In a June 2020 de-
cision, the Board found there was not new and material
evidence to reopen 22 of Mr. Lynch’s claims; denied service
connection for 21 claims; denied an initial disability rating
in excess of 10% for tinnitus; and granted an effective date
of July 3, 2013, for bilateral hearing loss and tinnitus. 1
Appx. 16–20. 2
1 The Board also found that there was new and ma-
terial evidence to reopen a previously denied claim of ser-
vice connection for an acquired stress disorder and
assigned an effective date of July 3, 2013, for the award of
service connection for bilateral hearing loss and tinnitus.
The Veterans Court did not disturb these favorable find-
ings. Appx. 1 n.1.
2 Citations to “Appx.” refer to the Appendix attached
to the appellee’s brief.
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LYNCH v. MCDONOUGH 3
Mr. Lynch appealed the Board’s decision to the Court
of Appeals for Veterans Claims (Veterans Court), alleging
that: (1) the VA miscalculated his period of active service;
(2) the Board misapplied the applicable law and failed to
obtain all his service treatment and private medical rec-
ords; and (3) the VA and others, through conduct unrelated
to the decision on appeal, violated the Civil Rights Act of
1964 and the Health Insurance Portability and Accounta-
bility Act (HIPAA). Lynch v. McDonough, No. 20-4569,
2021 WL 2176891 (Vet. App. May 28, 2021); Appx. 1–2, 6.
The Veterans Court affirmed-in-part and dismissed-in-
part.
First, the Veterans Court concluded that the Board cor-
rectly determined Mr. Lynch’s period of active service.
Appx. 6–7. Mr. Lynch argued that his active service period
should include his time enrolled in the ROTC program
while attending Virginia State College and in the Army Re-
serves. But the court clarified that these activities do not
qualify as “active duty,” which is defined as “full-time duty
in the Armed Forces, other than active duty for training.”
38 U.S.C. § 101(21)(A). The court also concluded that these
activities do not qualify as “active duty for training,” which
is defined as “duty performed by a member of a Senior Re-
serve Officers’ Training Corps program when ordered to
such duty for the purpose of training . . . .”
38 U.S.C.
§ 101(22)(D). The court determined that the Board
properly applied these statutory definitions to exclude
Mr. Lynch’s time in the ROTC and the Army Reserves from
its calculation of his active service time. The court thus
“f[ound] no error in” the Board’s calculation of Mr. Lynch’s
period of active service. Appx. 7.
Next, the court determined that the Board’s findings
related to the merits of Mr. Lynch’s claims were not clearly
erroneous. Appx. 7–9. The court explained that, in declin-
ing to reopen 22 claims because there was no new and ma-
terial evidence, the Board discussed the factual and
procedural history of each claim and the new evidence
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4 LYNCH v. MCDONOUGH
submitted before finding that the new evidence was either
cumulative or not material. Similarly, the court explained
that the Board’s findings denying service connection for 21
claims were supported by “detailed explanations.” Appx. 7.
The court concluded likewise for the Board’s determina-
tions: (1) not to award an effective date earlier than July
3, 2013, for bilateral hearing loss and tinnitus and (2) to
award a disability rating of 10% for tinnitus. In making
these determinations, the court explained, the Board “dis-
cussed at length the history of [Mr. Lynch]’s claims for
these conditions” and appropriately applied the applicable
law. Appx. 8–9. In sum, the court concluded that none of
the Board’s findings regarding Mr. Lynch’s claims were
clearly erroneous because the Board “provided an adequate
statement of reasons or bases for” its factual findings.
Appx. 7–9. The court therefore affirmed the Board’s deter-
mination on the merits for these claims.
Finally, the court addressed Mr. Lynch’s contention
that the VA violated the Civil Rights Act of 1964 and
HIPAA. Because those allegations did not challenge any
portion of the Board’s decision, the court determined it did
not have jurisdiction to address them. Appx. 9 (citing
38 U.S.C. § 7252). The court dismissed that portion of
Mr. Lynch’s appeal.
Mr. Lynch 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 the Board’s factual
findings, nor the Board’s application of law to fact.
38 U.S.C. §§ 7292(c), (d)(2); see also, e.g., Conway v. Prin-
cipi,
353 F.3d 1369, 1372 (Fed. Cir. 2004). Our review is
limited to legal challenges regarding the “validity of any
statute or regulation 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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LYNCH v. MCDONOUGH 5
On appeal, Mr. Lynch again argues that (1) the VA
miscalculated his period of “active duty”; (2) the Board
should have reopened or granted service connection for cer-
tain claims; (3) certain records are erroneously not in his
VA file; and (4) the VA and others, through conduct unre-
lated to the Board’s decision on appeal, violated various
statutes, including, among others, the Civil Rights Act of
1964, the Equal Employment Opportunity Commission
(EEOC) program, and HIPAA. We affirm in part and dis-
miss in part.
We start with Mr. Lynch’s argument that the Board
miscalculated his “active duty” period by failing to include
his time in the ROTC program at Virginia State College.
As the Veterans Court explained, only certain types of ser-
vice are considered “active duty” or “active duty for train-
ing” for benefits purposes. Appx. 6–7 (citing § 101(21)(A)–
(22)(D)). The Board determined, and the Veterans Court
agreed, that time spent participating in an ROTC program
does not qualify as “active duty” or “active duty for train-
ing” as defined in the relevant statutes, § 101(21)(A) and
(22)(D). Appx. 6–7, 30. On appeal, Mr. Lynch does not
challenge the validity or constitutionality of any statute,
but only the Board’s determination that his time spent in
an ROTC program did not fall within the statutory defini-
tions of “active duty” or “active duty for training.” Put oth-
erwise, Mr. Lynch only challenges the Board’s application
of the relevant law to the facts of his case. We lack juris-
diction to review Mr. Lynch’s challenge and therefore dis-
miss this portion of his appeal. § 7292(d)(2) (we may not
review “a challenge to a factual determination” or “a chal-
lenge to a law or regulation as applied to the facts of a par-
ticular case”).
We turn next to Mr. Lynch’s arguments that the Board
should reopen or grant service connection for certain
claims. The Board may reopen a claim for benefits “[i]f new
and material evidence is presented.”
38 U.S.C. § 5108(a).
Whether evidence presented by a veteran is “new and
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6 LYNCH v. MCDONOUGH
material” is a finding of fact. See Livingston v. Derwinski,
959 F.2d 224, 225–26 (Fed. Cir. 1992). Here, the Board
found that the evidence submitted by Mr. Lynch was either
cumulative to previously submitted evidence (i.e., was not
new) or was not material. Appx. 30–46. Accordingly, the
Board did not reopen Mr. Lynch’s various claims for bene-
fits. Mr. Lynch now appeals those factual findings. Be-
cause we do not have jurisdiction to review the Board’s
factual findings, we also dismiss this portion of his appeal.
See Livingston,
959 F.2d at 226 (dismissing appeal chal-
lenging Board’s finding that new and material evidence
had not been submitted).
Similarly, we do not have jurisdiction to consider
Mr. Lynch’s argument that the Veterans Court erred in not
ordering the VA to grant service connection for various
claims. In order to receive compensation for disabilities, “a
veteran must show ‘service-connection.’” Davis v. Principi,
276 F.3d 1341, 1343 (Fed. Cir. 2002); see also
38 U.S.C.
§ 1110. As we explained in Lynch I, “[e]stablishing that an
injury is service-connected is a factual” finding that “this
court cannot review.” 476 F. App’x at 405–06 (citing
38 U.S.C. § 7292(e)(1)). Here, Mr. Lynch challenges only
the Board’s finding that he failed to establish service con-
nection for certain claims. We do not have jurisdiction to
review these findings of fact. Accordingly, we dismiss the
portions of Mr. Lynch’s appeal regarding reopening or
granting service connection for certain disability claims.
Mr. Lynch also argues that the VA should have in-
cluded certain records in his file, citing the Veterans
Claims Assistance Act (VCAA). The VCAA created the
VA’s “duty to assist,” which obligates the VA to “make rea-
sonable efforts to assist a claimant in obtaining evidence
necessary to substantiate” his claim for benefits. 38 U.S.C.
§ 5103A(a)(1). As we explained in Lynch I, the “VA’s com-
pliance with the VCAA is outside our jurisdiction” because
such an inquiry “involves factual issues.” 476 F. App’x at
406; see also, e.g., Garrison v. Nicholson,
494 F.3d 1366,
Case: 21-2224 Document: 14 Page: 7 Filed: 03/10/2022
LYNCH v. MCDONOUGH 7
1370 (Fed. Cir. 2007) (“[D]etermining compliance with [the
duty to assist] is a fact issue.”). As we did in Lynch I, we
dismiss this portion of Mr. Lynch’s appeal for lack of juris-
diction.
Mr. Lynch next alleges that the VA and others violated
various statutes, regulations, or programs. 3 Specifically,
Mr. Lynch alleges that his former employers, both during
and after his time of active service, discriminated against
him in violation of various statutes. Mr. Lynch raised sim-
ilar allegations in Lynch I. See 476 F. App’x at 406 (noting
that “Mr. Lynch cite[d] 14 statutes and regulations . . . that
he assert[ed]” were violated). As we explained in that case,
“arguments that do not relate to the claims on appeal,”
such as those “asserting employment discrimination or
workers compensation,” cannot properly be raised before
the Veterans Court.
Id. Here, the Veterans Court properly
determined that it did not have jurisdiction to address
these claims. Appx. 9. As in Lynch I, we affirm the Veter-
ans Court’s determination that it lacks jurisdiction over
these claims. See 476 F. App’x at 406.
Finally, on appeal to this court, Mr. Lynch alleges the
violation of various laws, regulations, and programs that
he did not raise before the Veterans Court. We do not have
jurisdiction over claims related to Mr. Lynch’s civilian ca-
reer or claims of alleged violations that are raised for the
first time on appeal. See
38 U.S.C. §§ 7292(c), (d)(1)–(2).
We thus dismiss this portion of Mr. Lynch’s appeal.
3 Mr. Lynch alleges violations of HIPAA; the Civil
Rights Act of 1964; the Morill Acts of 1862 and 1890; the
Office of Workers’ Compensation Program (OWCP); the Vi-
etnam Era Veterans’ Readjustment Assistance Act
(VEVRAA); the Uniformed Service Employment and
Reemployment Rights Act (USERRA); the Federal Employ-
ees’ Compensation Act (FECA); and the EEOC program.
Case: 21-2224 Document: 14 Page: 8 Filed: 03/10/2022
8 LYNCH v. MCDONOUGH
CONCLUSION
Accordingly, we affirm-in-part and dismiss-in-part the
judgment of the Veterans Court.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
Costs to Appellee.
