       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                GAYLEN W. BROWN,
                 Claimant-Appellant,
                           v.
             ERIC K. SHINESKI,
      SECRETARY OF VETERANS AFFAIRS,
             Respondent-Appellee.
              __________________________

                      2011-7071
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-3745, Judge Lawrence B.
Hagel
              _________________________

                Decided: July 13, 2011
               _________________________

   GAYLEN W. BROWN, of West Jordan, Utah, pro se.

   ALEXANDER   V. SVERDLOV, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
KIRK T. MANHARDT, Assistant Director. Of counsel on the
BROWN   v. DVA                                             2


brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, and JONATHAN E. TAYLOR, Attorney.
              __________________________

  Before PROST, MAYER, and O’MALLEY, Circuit Judges,
PER CURIAM.
    Gaylen W. Brown (“Brown”) appeals the decision of
the United States Court of Appeals for Veterans Claims
(the “Veterans Court”) affirming the judgment of the
Board of Veterans Appeals (the “Board”). Brown objects
to the Board’s refusal to grant an earlier effective date for
his service-connected knee injuries and its decision to
refer certain of his claims to the Department of Veterans’
Affairs Regional Office (the “RO”) in Salt Lake City, Utah,
including a claim that there was clear and unmistakable
error (“CUE”) in a June 22, 1954 RO decision severing an
earlier award of benefits. For the reasons discussed
below, we affirm.
                       BACKGROUND
   Brown served on active duty in the U.S. Army from
November 1951 to October 1953; he is a veteran of the
Korean War.
    Following his discharge from the Army, Brown sought
VA benefits for both left and right knee disabilities. In
March of 1954, the RO granted service connection for
Brown’s bilateral weak knees. The RO assigned a non-
compensable disability rating. In April 1954, however,
the RO severed, after proper notice and opportunity to
respond, the service connection based on CUE. Because
Brown failed to file a timely appeal, this decision became
final.
   In August 2001, Brown sought to reopen his claim for
benefits on the basis of his knee disabilities. In addition,
3                                               BROWN   v. DVA


Brown advised the RO that he had been diagnosed with
narcolepsy with cataplexy. In a November 2001 decision,
the RO denied his claim for knee disabilities because new
and material evidence was not submitted. While the
record is not clear on this point, it appears that the RO
did not decide the merits of Brown’s claim for service
connection for his narcolepsy with cataplexy. Brown did
not file a timely appeal of this decision, so it became final.
    Subsequently, in January of 2004, Brown attempted
to reopen his claims for knee disabilities a second time,
and claimed he continued to suffer from narcolepsy.
Following an informal hearing and review of additional
evidence, on August 2, 2004, service connection was
denied for both his knees and narcolepsy. This time,
however, Brown filed a timely appeal of the August 2,
2004 decision, requesting that the Decision Review Officer
(“DRO”) conduct the appeal. 1 An informal hearing was
held with the DRO on October 17, 2006.
    As a result of this hearing, a new VA examination and
opinion was requested. This examination was conducted
on December 7, 2006. During the examination, Brown
“gave a history of [his] prior knee injuries while skiing
prior to service.” A21. The examiner noted, however,
that Brown’s “enlistment examination was normal with
no complaints of knee problems,” and found that Brown’s
“service medical records show complaints of knee pain on
a number of occasions while on active duty.” Id. Brown
informed the examiner that he fell and injured his knees
during basic training. The examiner found, in addition,
that “[i]n March 1952 [Brown] had an episode of disloca-

    1   A veteran who files a timely notice of appeal may,
at the veteran’s election, request that the RO decision be
reviewed by a DRO. 38 C.F.R. § 3.2600 (2010). This is a
de novo review. The DRO’s decision can be appealed to
the Board. Id.
BROWN   v. DVA                                            4


tion of the patella on the left with spontaneous reduction,”
and “[i]n December 1952 on 2 separate occasions [Brown
was] seen with persistent pain in both knees.” Id. Based
on this evidence, Brown’s medical records after discharge,
and an inspection of Brown’s knee performed by the
examiner, the examiner opined that “there is evidence of
aggravation of both knees during service and . . . your
bilateral knee disorder and subsequent total knee re-
placement are related to your military service.” A22.
    Accordingly, the DRO granted service connection for
Brown’s “left and right total knee replacements with 30%
evaluation assigned to each knee . . . .” Id. With respect
to the effective date of service connection, the DRO as-
signed January 5, 2004; the date Brown’s request to
reopen his claim was received by the VA. The DRO also
granted Brown service connection for his narcolepsy with
cataplexy, assigning a 20% evaluation with an effective
date of January 5, 2004.
    Following this decision, Brown appealed the effective
date the DRO assigned to his service-connected disabili-
ties. In March of 2008, the Board conducted a hearing on
Brown’s appeal. During the hearing “[Brown] and his
representative also stated that they believed there was
clear and unmistakable error (CUE) in a June 22, 1954,
decision by the RO wherein service connection for bilat-
eral weak knees was severed.” A8. With respect to this
and several other statements that could be interpreted as
informal claims of service connection, 2 the Board referred
the claims to the RO because “these several issues have
not been developed for appellate review . . . .” A8.
    Regarding Brown’s claim for earlier effective dates for
his total knee disabilities, the Board held that Brown was

   2    None of these additional claims are relevant to
this appeal.
5                                             BROWN   v. DVA


not entitled to a date earlier than that assigned by the
DRO, January 5, 2004. Reaching this conclusion, the
Board noted that Brown was attempting to reopen a final
decision. In that circumstance, the Board recognized that,
under relevant precedent, “the effective date cannot be
earlier than the date [that] the claim to reopen” was
received by the VA. A13. On January 5, 2004, the VA
received Brown’s petition to reopen his claim for his knee
disabilities. Accordingly, the Board concluded that this
date was the correct effective date for his service-
connected disabilities. With respect to Brown’s narco-
lepsy with cataplexy, the Board determined that the
effective date should be August 23, 2001, because “[a]
sympathetic reading of the August 23, 2001, statement
results in the conclusion that [Brown] was filing an in-
formal claim of service connection for narcolepsy with
cataplexy. Thus, the date of receipt of claim was not
January 5, 2004, but was in fact, August 23, 2001. A15-
16.
    After reaching these conclusions, the Board, endeav-
oring to explain its decision to refer Brown’s claim that
CUE occurred in the RO’s 1954 decision to sever Brown’s
knee-related benefits, stated:
    [Brown’s] primary contention appears to be that
    his first claim involving the knees was not decided
    correctly when the RO severed service connection
    for bilateral weak knees in June 1954. Disputing
    the result of that decision is more appropriately
    handled by filing a claim for review of the decision
    based on an assertion of [CUE]. The Board re-
    ferred such a claim to the [RO] in the introduction
    section.
A14.
    Brown appealed the Board’s decision to the Veterans
BROWN   v. DVA                                             6


Court. On appeal, Brown argued that the 1954 severance
of his benefits for bilateral knee disabilities was erroneous
because of CUE. 3 Noting that it only had jurisdiction to
review claims that are the subject of a Board decision, the
Veterans Court held it lacked jurisdiction to entertain
Brown’s CUE arguments because the Board had not
rendered a decision with respect to that claim.
    Brown’s appeal was timely, and we have jurisdiction
pursuant to 38 U.S.C. § 7292 to determine whether the
Veterans Court correctly interpreted its jurisdictional
statute.
                        DISCUSSION
                             I.
    Our review of Veterans Court decisions is very lim-
ited. See Yates v. West, 213 F.3d 1372, 1373–74 (Fed. Cir.
2000). By statute, our jurisdiction over appeals from the
Veterans Court is limited to those appeals that challenge
the validity of any statute or regulation, any interpreta-
tions thereof, or that raise any constitutional controver-
sies. See 38 U.S.C. § 7292 (2006). We do not have
jurisdiction to hear appeals challenging factual determi-
nations or to the law as applied to the facts of a particular
case, unless there is a constitutional issue present. See §
7292(d)(2). Whether the Veterans Court has jurisdiction
is a matter of statutory interpretation that this court
reviews de novo. E.g., Maggitt v. West, 202 F.3d 1370,
1372 (Fed. Cir. 2000) (“We review legal issues, including
whether the Veterans Court properly declined to assert


    3   Brown’s appeal to the Veterans Court could be
read to also include a claim that the effective date for his
narcolepsy with cataplexy should also refer back to 1954.
On appeal before this court, however, Brown has aban-
doned this argument.
7                                             BROWN   v. DVA


jurisdiction . . . without deference.”); Wick v. Brown, 40
F.3d 367, 370 (Fed. Cir. 1994). The Veterans Court’s
jurisdiction is to be construed, moreover, “narrowly and
‘with precision and with fidelity to the terms by which
Congress has expressed its wishes.’ ” Bailey v. West, 160
F.3d 1360, 1363 (Fed. Cir. 1998) (quoting Cheng Fan
Kwok v. INS, 392 U.S. 206, 212 (1968)).
                            II.
    On appeal, Brown seeks to have this court grant him
an earlier effective date for his service-connected knee
disabilities. This court does not, however, have jurisdic-
tion to review the Veterans Court’s factual determina-
tions with respect to the effective dates for Brown’s
claims, nor do we have jurisdiction to review the Veterans
Court’s application of the law to those factual determina-
tions. While we do have jurisdiction to review the Veter-
ans Court’s determination that it lacked jurisdiction over
Brown’s CUE claim, for the reasons discussed below, we
find that the Veterans Court properly determined that it
lacked jurisdiction over Brown’s CUE claim. Accordingly,
we affirm and dismiss this appeal.
    We have made clear that the Veterans Court only has
jurisdiction to review decisions of the Board. Andre v.
Principi, 301 F.3d 1354, 1358 (Fed. Cir. 2002) (citing 38
U.S.C. § 7252(a)). Each specific assertion of CUE, more-
over, constitutes a claim that must be the subject of a
decision by the Board before the Veterans Court has
jurisdiction over the claim. Id. at 1360. In Andre, the
veteran raised a new CUE argument for the first time in
his appeal before the Veterans Court. Id. at 1360. The
Veterans Court concluded that it lacked jurisdiction to
hear this claim because it was not the subject of a decision
by the Board. Id. We held that the Veterans Court
correctly determined that it lacked jurisdiction over the
BROWN   v. DVA                                           8


veteran’s CUE claim because the claim was not raised
before the Board. Id. at 1361–62. In passing, we noted
that our decision did not preclude the veteran from filing
his novel CUE claim with the RO for adjudication. Id. at
1362.
    Unlike in Andre, here, Brown first raised his CUE
claim in proceedings before the Board. This difference
does not change the outcome of this case, however. There
is no Board decision regarding Brown’s CUE claim be-
cause the Board chose to return that claim to the RO for a
determination, rather than decide it in the first instance.
The Veterans Court was correct, therefore, to determine
that it lacked jurisdiction to hear Brown’s appeal.
    At this point in time Brown’s CUE claim has been re-
ferred to the RO for consideration. Upon review of the
relevant facts, the RO will determine whether CUE exists
in the 1954 decision. If the RO concludes that there is no
CUE, Brown can then appeal that decision to the Board.
When the Board renders a judgment on that claim, then,
and only then, would an appeal to the Veterans Court be
viable.
     Because the Veterans Court correctly determined that
it lacks jurisdiction to hear Brown’s appeal, we affirm and
dismiss this appeal.
                      AFFIRMED
