                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-7101


                              RICHARD C. LANCASTER,

                                                              Claimant-Appellant,

                                           v.

                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                              Respondent-Appellee.

      Richard C. Lancaster, of Newton, Mississippi, pro se.

       Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the
brief were Ethan G. Kalett, Supervising Attorney, and Tracey P. Warren, Attorney,
Office of the General Counsel, United States Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Ronald M. Holdaway
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-7101

                             RICHARD C. LANCASTER,

                                                           Claimant-Appellant,

                                          v.

                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                           Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 06-1956, Judge
Ronald M. Holdaway.

                        ______________________________

                          DECIDED: September 5, 2008
                        ______________________________



Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and Walker, Chief
District Judge. *

PER CURIAM.

      The appellant Richard C. Lancaster, a pro se veteran, challenges the United

States Court of Appeals for Veterans Claims (“Veterans Court”)’s, affirmance of the

Board of Veterans Appeals (“Board”)’s finding that there was not clear and unmistakable

error in a December 1992 rating decision denying his claim for a left elbow disability.

We affirm.



      *
             Honorable Vaughn R. Walker, Chief Judge, United States District Court for
the Northern District of California, sitting by designation.
                                             I

       While Lancaster was on active duty, a 1975 medical report indicated he had

sustained abrasions on his left elbow. After his release from service, in 1988 he filed a

claim with the Veterans Administration for a left elbow disability. In December 1992 the

Administration’s regional office denied that claim.       Lancaster did not appeal that

decision, which became final.

       In 2001, he filed with the regional office a claim that the 1992 decision contained

clear and unmistakable error. If that claim were sustained, it would terminate the finality

of the regional office’s 1992 decision. The regional office denied that claim, however;

the Board affirmed; and the Veterans Court affirmed the Board.

       The Veterans Court held that “the correct facts, as they were known, were before

the R[egional] O[ffice]; the R[egional] O[ffice] applied the applicable statutory provisions

existing at the time; and, but for any alleged error, the outcome would not have been

different.” The Veterans Court also stated that a clear-and-unmistakable-error claim

could not be based upon the regional office’s failure to perform its duty to assist the

veteran in presenting his case or the contention that the regional office improperly

weighed the evidence.      The Veterans Court concluded that the Board’s decision

denying Lancaster’s clear-and-unmistakable-error claim was not “arbitrary, capricious,

an abuse of discretion, or otherwise contrary to law.”

       Under the governing statute, this court has only limited jurisdiction in reviewing a

decision of the Veterans Court. “Except to the extent that an appeal . . . presents a

constitutional question,” this court “may not review (A) a challenge to a factual




2008-7101                                    2
determination, or (B) a challenge to a law or regulation as applied to the facts of a

particular case.” 38 U.S.C. § 7292(c).

       Lancaster’s principal contention–that he demonstrated clear and unmistakable

error in the regional office’s initial denial of his claim for a left elbow disability–rests

primarily on his challenge to the regional office’s evaluation of the evidence upon which

it based its decision. Unfortunately for Lancaster, we have no jurisdiction to review that

challenge.

       Although Lancaster also alleges generally that he was denied due process, he

makes no attempt to explain the theory on which he bases that claim. Describing the

rejection of factual allegations as violating due process is insufficient to invoke the

constitutional exception to the statutory prohibition on our reviewing a factual question.

See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). “[T]he mere recitation of a

basis for jurisdiction by either party or a court, is not controlling; we must look to the true

nature of the action.” Livingston v. Derwinski, 959 F.2d 224, 225 (Fed. Cir. 1992).

       Lancaster makes two statutory contentions. First, he argues that he was “never

afforded protection under [38 U.S.C. § 1131].”           That provision outlines the basic

entitlement to disability benefits for veterans who served during times of peace. That

contention is but a reiteration of his factual contention of disability in different dress.

       Second, he argues that the “VA refuses to accept [38 U.S.C. § 5107] with regard

to this claim as required by law.”         That provision indicates that claimants must

demonstrate an entitlement to benefits, and when the evidence is in equipoise, the

Secretary must give the benefit of the doubt to the claimant. The evidence regarding

Lancaster’s disability was not in equipoise, however, so that provision is inapplicable.




2008-7101                                      3
      We have considered all of Lancaster’s other contentions, but deem them

unpersuasive.

      The decision of the Veterans Court affirming the Board decision denying

reopening of Lancaster's left elbow disability claim because he failed to establish clear

and unmistakable error is

                                      AFFIRMED.




2008-7101                                  4
