Case: 20-1610    Document: 16     Page: 1   Filed: 07/10/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                     LAMAR BERRY,
                    Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2020-1610
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-5579, Senior Judge William A.
 Moorman.
                 ______________________

                  Decided: July 10, 2020
                  ______________________

    LAMAR BERRY, Austin, TX, 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 ETHAN P. DAVIS, ELIZABETH MARIE HOSFORD,
 ROBERT EDWARD KIRSCHMAN, JR.
                  ______________________
Case: 20-1610    Document: 16      Page: 2    Filed: 07/10/2020




 2                                            BERRY   v. WILKIE



     Before MOORE, CHEN, and STOLL, Circuit Judges.
 PER CURIAM.
     Lamar Berry appeals a United States Court of Appeals
 for Veterans Claims (Veterans Court) decision dismissing
 his clear and unmistakable error (CUE) claims for lack of
 jurisdiction, and affirming the Board of Veterans Appeals’
 refusal to reopen his claims for service connection. Berry
 v. Wilkie, No. 18-5579, 2019 WL 4892225 (Vet. App. Octo-
 ber 4, 2019). Because we conclude that the Veterans Court
 properly dismissed the CUE claims, and because we lack
 jurisdiction to review the Veterans Court’s decision regard-
 ing reopening the service connection claims, we affirm in
 part and dismiss in part.
                        BACKGROUND
     Mr. Berry served on active duty in the U.S. Army from
 October 1972 to October 1975. S.A. 14. Starting in Novem-
 ber 1976, Mr. Berry filed several benefits claims for service
 connection for headaches, back and stomach conditions,
 and prostate cancer. Id. at 2–3, 14–15. The regional office
 (RO) denied the claims, and the decisions became final
 when Mr. Berry did not appeal. Mr. Berry sought to reopen
 his claims, but the RO denied his request, finding Mr.
 Berry did not provide new and material evidence to support
 reopening.
     Mr. Berry filed a notice of disagreement alleging CUE
 in the previous rating decisions. In response, the RO is-
 sued a statement of the case denying Mr. Berry’s request
 to reopen his claims. The RO also issued a deferred rating
 decision acknowledging that Mr. Berry submitted CUE
 claims, but noting that he did not submit the proper forms.
 Id. Mr. Berry did not take any action after the RO sent
 him a letter instructing him to submit the claims using the
 proper forms and to respond within 30 days. Id. at 15–16.
 Instead, Mr. Berry appealed the denial of his reopen re-
 quests to the Board. The Board denied reopening those
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 BERRY   v. WILKIE                                           3



 claims because Mr. Berry did not submit new and material
 evidence. Id. at 2–11. The Board did not, however, address
 Mr. Berry’s CUE claims.
     Mr. Berry appealed the Board’s decision to the Veter-
 ans Court. Id. at 16–17. The Veterans Court affirmed the
 Board’s decision denying the request to reopen claims be-
 cause Mr. Berry did not identify “any new evidence submit-
 ted that raised a reasonable possibility of substantiating
 any of his claims on appeal.” Id. at 17. Additionally, the
 Veterans Court dismissed Mr. Berry’s CUE claim after de-
 termining that it lacked jurisdiction to consider CUE
 claims the Board did not address. Mr. Berry appeals.
                           DISCUSSION
     Our jurisdiction is limited when reviewing Veterans
 Court decisions. We have jurisdiction “to review and decide
 any challenge to the validity of any statute or regulation or
 any interpretation thereof . . . and to interpret constitu-
 tional and statutory provisions, to the extent presented and
 necessary to a decision.” 38 U.S.C. § 7292(c). Except to the
 extent an appeal raises a constitutional issue, 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.” 38 U.S.C. § 7292(d)(2). “The jurisdictional
 reach of the Veterans Court presents a question of law for
 our plenary review.” Maggitt v. West, 202 F.3d 1370, 1374
 (Fed. Cir. 2000)
     The Veterans Court correctly held that it lacked juris-
 diction over Mr. Berry’s CUE claim. A CUE claim “must
 be the subject of a decision by the [Board] before the Veter-
 ans Court can exercise jurisdiction over it.” Andre v. Prin-
 cipi, 301 F.3d 1354, 1361 (Fed. Cir. 2002). The Veterans
 Court found that Mr. Berry’s CUE claim was not part of
 the Board’s decision, a factual finding we lack jurisdiction
 to review. See Comer v. Peake, 552 F.3d 1362, 1372 (Fed.
 Cir. 2009) (“Whether a veteran has raised a particular
 claim is a factual determination, outside the purview of our
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 4                                             BERRY   v. WILKIE



 appellate authority.”). We therefore affirm the Veterans
 Court’s determination that it lacked jurisdiction over Mr.
 Berry’s CUE claim.
     We lack jurisdiction to review Mr. Berry’s challenge to
 the Veterans Court’s affirmance of the Board’s denial of his
 request to reopen his disability claims. “[T]he question of
 whether evidence in a particular case is ‘new and material’
 is either a ‘factual determination’ under section
 7292(d)(2)(A) or the application of law to ‘the facts of a par-
 ticular case’ under section 7292(d)(2)(B) and is, thus, not
 within this court’s appellate jurisdiction.” Barnett v.
 Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Accordingly,
 we dismiss Mr. Berry’s challenge to this finding for lack of
 jurisdiction.
                         CONCLUSION
     We have considered Mr. Berry’s remaining arguments,
 but find them to be unpersuasive or beyond our jurisdiction
 to review. For the reasons above, we affirm in part the
 Veterans Court’s decision and dismiss in part the appeal.
     AFFIRMED IN PART AND DISMISSED IN PART
                             COSTS
      No costs.
