       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 JAMES L. LARUE,
                 Claimant-Appellant

                           v.

 DAVID J. SHULKIN, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                      2017-1923
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-2583, Chief Judge Robert N.
Davis, Judge Margaret C. Bartley, Judge William P.
Greene, Jr.
               ______________________

               Decided: August 11, 2017
                ______________________

   JAMES L. LARUE, Zwolle, LA, pro se.

    DAVID MICHAEL KERR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER; Y. KEN LEE, CHRISTOPHER O.
2                                           LARUE   v. SHULKIN



ADELOYE, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
                ______________________

    Before WALLACH, CHEN, and HUGHES, Circuit Judges.
PER CURIAM.
    Appellant James L. LaRue appeals a decision of the
U.S. Court of Appeals for Veterans Claims (“Veterans
Court”). See LaRue v. McDonald, No. 15-2583, 2017 WL
32904 (Vet. App. Jan. 3, 2017). In that decision, the
Veterans Court affirmed two decisions of the Board of
Veterans’ Appeals (“the Board”): the first denied Mr.
LaRue an earlier effective date for his service-connected
posttraumatic stress disorder (“PTSD”) benefits; the
second found no clear and unmistakable error (“CUE”) in
an earlier Board decision denying Mr. LaRue’s application
for benefits for PTSD. See id. at *3, *6; Appellee’s Suppl.
App. 20–35. Because we lack subject matter jurisdiction,
we dismiss.
                       BACKGROUND
    Mr. LaRue served on active duty in the U.S. Army
from 1965 to 1968, including service in combat during the
Vietnam War. LaRue, 2017 WL 32904, at *1. In the
years that followed his separation from service, Mr.
LaRue received evaluations for various psychiatric issues,
including acute anxiety neurosis, dysthymic disorder, and
PTSD. See id. at *1–2.
    In 1982, Mr. LaRue sought service-connected. 1 Where
disability benefits from the U.S. Department of Veterans




     1  “The term ‘service-connected’ means . . . that such
disability was incurred or aggravated . . . in line of duty in
the active military . . . .” 38 U.S.C. § 101(6) (2012); see,
LARUE   v. SHULKIN                                        3



Affairs (“VA”) for a nervous condition, but a Regional
Office (“RO”) decision denied his claim for lack of service
connection. Id. at *2.
    In 1985, Mr. LaRue requested to reopen his previous-
ly denied claim and add a claim for PTSD. See id. After
additional VA proceedings and examinations, Mr. LaRue
was again denied service connection for PTSD in a 1986
rating decision. Id. at *3. In 1989, the Board denied his
appeal of the rating decision, and the Veterans Court
dismissed for lack of jurisdiction due to untimely filing of
the appeal. Id.
    In 1993, Mr. LaRue requested to reopen his previous-
ly-denied claim. See id. A 1998 rating decision granted
him service connection for PTSD and awarded a thirty
percent disability rating, with the effective date as the
date of his 1993 claim. See id. Mr. LaRue did not appeal
this decision.
    In 2010, Mr. LaRue filed the claim at issue in the pre-
sent appeal. See id. Mr. LaRue first alleged that he had
submitted an application to reopen the denial of his PTSD
claim prior to the 1993 claim (that was successfully
reopened and granted), and as such, the effective date for
his PTSD award should be revised accordingly. Id.
Second, Mr. LaRue alleged there was CUE in the 1989
Board decision denying his PTSD claim on the basis that
the VA fraudulently solicited evidence for the purpose of
denying his claim. Id. The Board rejected both allega-
tions, finding no evidence of an earlier-adjudicated appli-
cation for benefits that was successful prior to the 1993
claim and determining the 1989 Board decision was
supported by the record and not a product of CUE. See id.




e.g., Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed.
Cir. 2004); 38 C.F.R. § 3.303 (2017).
4                                          LARUE   v. SHULKIN



    Mr. LaRue appealed to the Veterans Court, which af-
firmed both Board decisions. The Veterans Court agreed
the record lacked support for Mr. LaRue’s assertions
regarding an earlier effective date, and further affirmed
that Mr. LaRue’s CUE argument amounted to nothing
more than a disagreement with the way in which the 1989
Board decision weighed the evidence, which does not
constitute CUE. See id. at *4, *5. The Veterans Court
stated that the Board correctly held that the VA did not
improperly solicit evidence against Mr. LaRue, noting
that the VA is required to obtain a medical examination
when evidence of record is insufficient to make a decision.
Id. at *5.
    Mr. LaRue filed motions to have this decision over-
turned by a panel and the full Veterans Court, neither of
which were successful. See LaRue v. Shulkin, No. 15-
2583, 2017 WL 1180141, at *1 (Vet. App. Mar. 30, 2017).
Mr. LaRue appeals.
                        DISCUSSION
    The Court Lacks Subject Matter Jurisdiction Over Mr.
                      LaRue’s Appeal
     We possess limited subject matter jurisdiction over
appeals from the Veterans Court. We may “review and
decide any challenge to the validity of any statute or
regulation           or     any     interpretation    there-
of . . . and . . . interpret constitutional and statutory
provisions, to the extent presented and necessary to a
decision.” 38 U.S.C. § 7292(c). Absent a legitimate con-
stitutional issue, we lack subject matter jurisdiction over
an appeal that raises “(A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2);
see Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir.
2010).
LARUE   v. SHULKIN                                       5



    Mr. LaRue’s appeal does not involve the interpreta-
tion of a statute or regulation, and it does not concern a
constitutional issue. Instead, Mr. LaRue raises a series of
arguments related to the Board’s initial decisions that
concern the application of law to particular facts, see
generally Appellant’s Br., and we lack subject matter
jurisdiction over such questions, see 38 U.S.C.
§ 7292(d)(2). 2
    For example, Mr. LaRue contends that the Veteran’s
Court incorrectly applied 38 U.S.C. § 7111(a), instead of
§ 5109A, to institute review of the Board decision denying
CUE. Appellant’s Br. 1. However, § 7111(a) is the correct
statute that governs review of a Board decision for CUE
because subsection (a) pertains to the revision of a rating
decision “by the Board . . . on the grounds of [CUE],”
while § 5109A pertains only to revision of a rating deci-
sion “by the Secretary . . . on the grounds of [CUE].”
(emphasis added). The Veterans Court has jurisdiction
only to “review decisions of the Board.” Id. § 7252(a). To
the extent Mr. LaRue argues that the Veterans Court
misinterpreted the reach of § 7111(a), a plain reading of
the statute belies his position. Moreover, LaRue under-
stood and agreed that his appeal on the grounds of CUE
concerned the 1989 Board decision, and that the 1986 RO
decision of the Secretary was “subsumed by the . . . 1989
Board decision.” LaRue, 2017 WL 32904, at *5. Thus,


   2    Mr. LaRue failed to raise any arguments on ap-
peal with respect to the Veterans Court’s decision denying
an earlier effective date for the grant of his PTSD claim.
See generally Appellant’s Br. “[C]ourts have consistently
concluded that the “failure of an appellant to include an
issue or argument in the opening brief will be deemed a
waiver of the issue or argument.” Carbino v. West, 168
F.3d 32, 34 (Fed. Cir. 1999). As such, we decline to review
the Veterans Court’s earlier effective date finding.
6                                         LARUE   v. SHULKIN



Mr. LaRue has not presented a question of statutory
interpretation or validity on the part of the Veterans
Court for our review.
    Mr. LaRue’s remaining arguments challenge only fac-
tual determinations that we may not adjudicate. Mr.
LaRue contends that the Veterans Court failed to proper-
ly address the merits of his CUE claim and that it failed
to take into consideration a hospital medical record. See
Appellant’s Br. 1, Attach. A. He further alleges that the
VA solicited negative medical evidence for the purpose of
obtaining evidence to rebut his PTSD claim. Id. at 1,
Attach. B. As outlined above, we “lack jurisdiction to
reweigh the evidence considered by the Board” that it
used to address Mr. LaRue’s CUE challenge. Thompson
v. McDonald, 580 F. App’x 901, 906 (Fed. Cir. 2014). Mr.
LaRue does not otherwise contest a statutory interpreta-
tion made by the Veterans Court in assessing the chal-
lenged medical evidence that we may properly review
under our limited appellate jurisdiction.
    Mr. LaRue’s contention that specific evidence of rec-
ord not previously cited will produce a different disability
rating, see Appellant’s Br. 1, Attach. A, raises a “pure
question of fact” that we may not review, Ortiz v.
Shinseki, 427 F. App’x 889, 891 (Fed. Cir. 2011). We
“presume that a fact finder reviews all the evidence
presented unless he explicitly expresses otherwise.”
Medtronic Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed. Cir.
1986) (footnote omitted). Moreover, we do not exercise
jurisdiction to second-guess the Veterans Court’s holding
that there was “no error” in the Board’s determination
that the VA did not erroneously solicit evidence against
Mr. LaRue’s claim. LaRue, 2017 WL 32904, at *5; see
Herbert v. McDonald, 791 F.3d 1364, 1366 (Fed. Cir.
2015) (emphasizing that “[the VA] has an affirmative duty
to gather the evidence necessary to render an informed
decision on the claim, even if that means gathering and
developing negative evidence, provided [it] does so in an
LARUE   v. SHULKIN                                        7



impartial, unbiased and neutral manner” (internal quota-
tion marks and citation omitted) (second alteration in
original)).
    We also note that Mr. LaRue’s allegations of prejudi-
cial treatment, see Appellant’s Br. 1, Attach. C, are not
accompanied by supporting evidence. Although this court
generally interprets the pleadings of a pro se appellant
liberally, see, e.g., Durr v. Nicholson, 400 F.3d 1375, 1380
(Fed. Cir. 2005), an appellant’s pro se status “does not
excuse [the pleading’s] failures,” Henke v. United States,
60 F.3d 795, 799 (Fed. Cir. 1995). We decline to review
such undeveloped arguments here. See Amberman v.
Shinseki, 570 F.3d 1377, 1382 (Fed. Cir. 2009) (“Ordinari-
ly, we deem [a party’s] failure to raise an argument in its
opening brief a waiver of that argument.” (citation omit-
ted)).
                       CONCLUSION
    We have considered Mr. LaRue’s remaining argu-
ments and find them unpersuasive. Given the statutory
limits on our jurisdiction, we cannot review the Board’s
application of law to the facts. Accordingly, Mr. LaRue’s
appeal from the U.S. Court of Appeals for Veterans
Claims is
                       DISMISSED
                          COSTS
   No Costs.
