Case: 20-1459    Document: 31     Page: 1   Filed: 08/20/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                  FREDERICK PAYNE,
                   Claimant-Appellant

                             v.

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

                        2020-1459
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-3439, Chief Judge Margaret C.
 Bartley, Judge Amanda L. Meredith, Senior Judge Robert
 N. Davis.
                 ______________________

                 Decided: August 20, 2020
                  ______________________

    FREDERICK PAYNE, Bellevue, NE, pro se.

     RAFIQUE OMAR ANDERSON, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent-appellee. Also repre-
 sented by ETHAN P. DAVIS, ALLISON KIDD-MILLER, ROBERT
 EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, ANDREW J.
Case: 20-1459      Document: 31    Page: 2    Filed: 08/20/2020




 2                                             PAYNE   v. WILKIE



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

     Before PROST, Chief Judge, REYNA and TARANTO, Circuit
                            Judges.
 PER CURIAM.
     Pro se Appellant Frederick Payne, a United States Air
 Force veteran, appeals the decision of the United States
 Court of Appeals for Veterans Claims that affirmed a de-
 termination by the Board of Veterans’ Appeals denying an
 increase in his disability rating for his service-connected
 disabilities. Mr. Payne also raises new issues on appeal.
 The resolution of the issues raised by Mr. Payne would re-
 quire this court to reweigh the factual findings of the
 Board, to engage in new factual findings, and review the
 application of law to facts. While this court has jurisdiction
 to review certain constitutional and legal issues, we are
 statutorily prohibited from reviewing factual determina-
 tions and the application of law to facts. 38 U.S.C.
 § 7292(d)(2). Therefore, we lack jurisdiction over Mr.
 Payne’s challenges and dismiss this appeal.
                         BACKGROUND
                A. Disability Compensation Claims
     Mr. Payne served on active duty in the U.S. Air Force
 from February 1980 to July 1992 as a communications sys-
 tems maintenance technician. J.A. 204. On July 13, 1992,
 he was honorably discharged for “permanent disability re-
 tirement.” Id. In April 1993, a VA Regional Office (“RO”)
 granted Mr. Payne’s claim for service-connected carpal
 tunnel syndrome (“CTS”) of each hand. J.A. 24–32. Over
 the years, Mr. Payne filed several claims and appeals, ulti-
 mately leading to an increase of the initial disability rat-
 ings for Mr. Payne’s right and left CTS to 50% and 40%,
 respectively, both effective July 14, 1992, and a service-
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 PAYNE   v. WILKIE                                          3



 connection award for hand-arm vibration syndrome
 (“HAVS”). J.A. 90–99, 100–08. The procedural history of
 Mr. Payne’s appeals spans over 27 years. We review only
 the procedural history most relevant to this appeal.
         B. Board Decision and Veterans Court Decision
      On September 26, 2017, the Board of Veterans’ Appeals
 (“Board”) denied a higher rating for Mr. Payne’s right and
 left hand HAVS and CTS on both schedular and extra-
 schedular bases. J.A. 165–203. Mr. Payne’s disabilities
 were rated as a unit under diagnostic code 8515, based on
 the Board’s factual finding that the symptoms of the two
 conditions overlapped. The Board determined it lacked ju-
 risdiction over the remaining issues in the case. Mr. Payne
 appealed the Board decision to the U.S. Court of Appeals
 for Veterans Claims (“Veterans Court”).
     The Veterans Court affirmed in part, reversed in part,
 and dismissed in part the Board’s decision. Important to
 this appeal, the Veterans Court affirmed the Board’s deter-
 mination that Mr. Payne was not entitled to an increase of
 his disability rating for HAVS and CTS. In addition, the
 Veterans Court reversed and remanded the Board’s deter-
 mination that it lacked jurisdiction over the issues of enti-
 tlement to special monthly compensation and a total
 disability rating based on individual unemployability
 (“TDIU”) prior to March 4, 2005. The Veterans Court dis-
 missed, as abandoned, Mr. Payne’s appeal as to his entitle-
 ment to TDIU after August 31, 2011 and to disability
 compensation for a secondary condition of his service-con-
 nected disabilities. Mr. Payne now appeals to this court.
                            ANALYSIS
     Our jurisdiction to review decisions by the Veterans
 Court is limited. See Wanless v. Shinseki, 618 F.3d 1333,
 1336 (Fed. Cir. 2010). We have exclusive jurisdiction to re-
 view and decide challenges to the validity of any statute or
 regulation, or to any interpretation of statutory,
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 4                                             PAYNE   v. WILKIE



 regulatory, or constitutional provisions to the extent such
 provisions are presented and necessary to a decision. 38
 U.S.C. § 7292(c). We lack jurisdiction to review challenges
 to factual determinations, or challenges to the application
 of law or regulation to the facts of a particular case, except
 to the extent that an appeal from a Veterans Court decision
 presents a constitutional issue. Id.; § 7292(d)(2). And
 while we liberally construe pro se pleadings, like those
 here, in favor of a pro se veteran, the veteran is still re-
 quired to establish jurisdiction. See Reynolds v. Army &
 Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
      In addition, the issue on appeal must have been finally
 decided by the Veterans Court. See Arnesen v. Principi,
 300 F.3d 1353, 1357 (Fed. Cir. 2002). Remand decisions by
 the Veterans Court are not final for review purposes absent
 three circumstances: “(1) there must have been a clear and
 final decision of a legal issue that (a) is separate from the
 remand proceedings, (b) will directly govern the remand
 proceedings or, (c) if reversed by this court, would render
 the remand proceedings unnecessary; (2) the resolution of
 the legal issues must adversely affect the party seeking re-
 view; and (3) there must be a substantial risk that the de-
 cision would not survive a remand, i.e., that the remand
 proceeding may moot the issue.” Id. (quoting Williams v.
 Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002)).
       A.   Challenges to the Veterans Court’s Decision
      First, Mr. Payne challenges the Board’s determination
 that Mr. Payne was not entitled to a higher initial disabil-
 ity rating. The Veterans Court correctly characterized Mr.
 Payne’s challenge as going to the sufficiency of a medical
 opinion, which is a finding of fact, over which we lack juris-
 diction to review. J.A. 17. See Prinkey v. Shinseki, 735
 F.3d 1375, 1383 (Fed. Cir. 2013) (“[T]he sufficiency of a
 medical opinion is a matter beyond our jurisdictional
 reach, because the underlying question is one of fact.”).
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 PAYNE   v. WILKIE                                           5



     Similarly, Mr. Payne argues that the Veterans Court
 erred when it determined that Mr. Payne failed to demon-
 strate that errors by the Board were prejudicial. Determi-
 nation of prejudice constitutes case-specific applications of
 judgment, based on the examination of the record. See
 Shinseki v. Sanders, 556 U.S. 396, 407–10 (2009). Because
 this determination involves the application of law to fact,
 we lack jurisdiction to review these conclusions.
      Mr. Payne also challenges the Veterans Court’s rever-
 sal and remand of portions of the Board’s decision on
 grounds that those matters are still pending before the
 Board. This court has held that its jurisdiction generally
 does not extend to determinations that are still pending be-
 fore the Veterans Court or the Board because they lack fi-
 nality. See Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir.
 2006) (citing Williams, 275 F.3d at 1363 (Fed. Cir. 2002)).
 While this court in Williams set out a narrow exception to
 that rule, as set forth above, we do not find that such an
 exception applies here. See Williams, 275 F.3d at 1364.
 Because we find no reason to depart from the rule of final-
 ity in this case, we dismiss Mr. Payne’s challenge to issues
 that remain pending before the Board. See id. at 1363.
     Finally, we also lack jurisdiction to review the Veter-
 ans Court’s ruling that Mr. Payne abandoned the remain-
 ing issues for failure to raise them in his opening brief. See
 Andre v. Principi, 301 F.3d 1354, 1362–64 (Fed. Cir. 2002)
 (holding that the Federal Circuit lacks jurisdiction over the
 Veterans Court’s ruling that an issue is abandoned).
                B.    New Issues Raised on Appeal
      As we understand his informal brief, Mr. Payne raises
 several arguments that were not before the Veterans
 Court. For example, Mr. Payne argues that the United
 States Department of Veterans Affairs’ (“VA”) regulatory
 prohibition on pyramiding, or evaluating the same disabil-
 ity under various diagnosis, is either unlawful or was inap-
 propriately applied to his case to deny separate ratings for
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 6                                             PAYNE   v. WILKIE



 HAVS and CTS. App. Inf. Br. at 5–6, 10–12. He also ar-
 gues that his constitutional due process rights were vio-
 lated because his service medical records were excluded
 from consideration by the VA in rating his hand and arm
 condition, id. at 3, 16–25, and that the administrative rec-
 ord is “missing key medical evidence.” Id. at 8–9.
     In general, arguments not raised to the Veterans Court
 are waived. See Forshey v. Principi, 284 F.3d 1335, 1355
 (Fed. Cir. 2002) (en banc), superseded on other grounds by
 statute, Veterans Benefits Act of 2002, Pub. L. No. 107-330,
 § 402(a), 116 Stat. 2820, 2832). Even if these arguments
 were not waived, they either are plainly meritless or chal-
 lenge determinations that we lack jurisdiction to review.
     With respect to Mr. Payne’s argument that pyramiding
 is unlawful, this court addressed the question in Amber-
 man v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). The court
 concluded that 38 C.F.R. § 4.14 intends that veterans are
 compensated for functional loss but that separate diagno-
 ses constitute the same disability if they have overlapping
 symptomatology. Id. at 1380–81. To the extent Mr. Payne
 argues that the statute was applied improperly to the facts
 of his case, or that the Board erred in finding that his symp-
 toms overlapped, this court does not have jurisdiction to
 review this issue. See 38 U.S.C. § 7292(d)(2).
     Next, Mr. Payne raises a “constitutional due process”
 challenge alleging that the Board “excluded” his service
 medical records from consideration or that the Board is
 missing “key” evidence. App. Inf. Br. at 8–9, 18. However,
 while Mr. Payne frames his argument as a constitutional
 challenge, he is in fact challenging the Board’s weighing of
 evidence in the record. The completeness of the record pre-
 sents a question of fact outside of this court’s jurisdiction.
 See Jones v. Wilkie, 918 F.3d 922, 927 (Fed. Cir. 2019); see
 also Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
 2007) (“There is a presumption that VA considered all of
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 PAYNE   v. WILKIE                                           7



 the evidence of record.”). Accordingly, this court has no ju-
 risdiction to reweigh the evidence before the Board.
     Mr. Payne’s remaining new arguments involve factual
 findings or application of law to facts. For reasons outlined
 above, we dismiss those arguments as outside our jurisdic-
 tion.
                          CONCLUSION
     Each of Mr. Payne’s arguments on appeal are either
 waived or directed to factual determinations or applica-
 tions of law to fact that this court lack jurisdiction to re-
 view. Pursuant to 38 U.S.C. § 7292(d)(2), we may not
 consider these challenges. Accordingly, we dismiss the ap-
 peal.
                          DISMISSED
                             COSTS
     No costs.
