Case: 19-2009    Document: 37     Page: 1   Filed: 08/03/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                 DARYL R. BLANTON,
                  Claimant-Appellant

                             v.

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

                        2019-2009
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-3138, Judge Michael P. Allen.
                 ______________________

                 Decided: August 3, 2020
                 ______________________

    KENNETH M. CARPENTER, Law Offices of Carpenter
 Chartered, Topeka, KS, argued for claimant-appellant.

     ERIC LAUFGRABEN, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for respondent-appellee. Also repre-
 sented by ETHAN P. DAVIS, ROBERT EDWARD KIRSCHMAN,
 JR., LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, JONATHAN
 KRISCH, Office of General Counsel, United States Depart-
 ment of Veterans Affairs, Washington, DC.
Case: 19-2009    Document: 37      Page: 2    Filed: 08/03/2020




2                                            BLANTON   v. WILKIE



                  ______________________

     Before REYNA, SCHALL, and STOLL, Circuit Judges.
 SCHALL, Circuit Judge.
                          DECISION
     Daryl R. Blanton appeals the March 14, 2019 decision
 of the United States Court of Appeals for Veterans Claims
 (“Veterans Court”) in Blanton v. Wilkie, No. 17-3138, 2019
 WL 1177988 (Vet. App. Mar. 14, 2019). In that decision,
 the Veterans Court affirmed the May 24, 2017 decision of
 the Board of Veterans’ Appeals (“Board”) that denied
 Mr. Blanton an effective date earlier than April 14, 1998,
 for a grant of service connection for a nervous condition.
 J.A. 115. The Board did so because it found no clear and
 unmistakable error (“CUE”) in the February 6, 1997 rating
 decision that denied Mr. Blanton service connection for the
 condition. Id. For the reasons stated below, we affirm.
                          DISCUSSION
                              I.
     In its decision, the Veterans Court held that Mr. Blan-
 ton had failed to demonstrate error in the Board’s finding
 that Mr. Blanton had not shown CUE in the 1997 rating
 decision under the standard set forth in Russell v. Principi,
 3 Vet. App. 310, 313–14 (1992) (en banc). The Veterans
 Court recited the standard as follows:
     CUE is established when (1) either the correct facts
     as they were known at the time were not before the
     adjudicator, the adjudicator made an erroneous
     factual finding, or the statutory or regulatory pro-
     visions extant at the time were incorrectly applied;
     (2) the alleged error is “undebatable,” rather than
     a mere “disagreement as to how the facts were
     weighed or evaluated”; and (3) the error “mani-
     festly changed the outcome” of the decision.
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 BLANTON   v. WILKIE                                         3



 Blanton, 2019 WL 1177988, at *2 (footnote omitted) (quot-
 ing Russell, 3 Vet. App. at 313–14, 319).
                              II.
     On appeal, Mr. Blanton makes two arguments. His
 main argument is that “the decision of the Veterans Court
 to affirm the Board’s adverse CUE decision is erroneous
 because it relied upon a misinterpretation of the plain lan-
 guage of the predicate [CUE] statute, 38 U.S.C. § 5109A.”
 Appellant’s Br. 4. The basis for this argument is Mr. Blan-
 ton’s claim that the CUE standard set forth in Russell no
 longer should be followed because it was dicta and lacks
 support in the statute. Id. at 4–5, 7–25.
     We need not decide, however, whether Russell’s articu-
 lation of the requirements for establishing CUE was dicta.
 The reason is that this court has adopted the Russell test
 as controlling law. In Cook v. Principi, 318 F.3d 1334, 1345
 (Fed. Cir. 2002) (en banc), we stated:
     We conclude that decisions of this court and the
     Veterans Court concluding that a clear and unmis-
     takable error at the [Regional Office (“RO”)] level
     must be outcome determinative and must be ap-
     parent from the evidence of record at the time of
     the original decision are supported by the language
     of 38 U.S.C. § 5109A and its legislative history. We
     therefore reject Mr. Cook’s request that we over-
     turn existing law to that effect.
 Id. (footnote omitted); see also Morris v. Shinseki, 678
 F.3d 1346, 1351 (Fed. Cir. 2012); Willsey v. Peake, 535
 F.3d 1368, 1371 (Fed. Cir. 2008); Natali v. Principi, 375
 F.3d 1375, 1382 (Fed. Cir. 2004).
     At oral argument, counsel for Mr. Blanton acknowl-
 edged that, as a panel, we are bound by the en banc prece-
 dent     of   Cook.      Oral    Arg.   at    10:05–11:09,
 http://oralarguments.cafc.uscourts.gov/default.aspx?fl=19-
 2009.mp3. He also acknowledged that, for that reason, in
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4                                              BLANTON   v. WILKIE



 order for Mr. Blanton to succeed in his appeal, the full court
 would have to reconsider Cook en banc and overrule it. Id.
 As a panel, we could recommend that course of action. See
 Federal Circuit Rule 35(a)(1); Henderson v. Shinseki, 589
 F.3d 1201, 1203 (Fed. Cir. 2009), rev’d, 562 U.S. 428 (2011).
 We decline to do so, however. In Cook, we expressly stated
 that we did not think a change with respect to the require-
 ments for establishing CUE was “warranted.” 318 F.3d at
 1344.
                              III.
      Mr. Blanton’s second argument on appeal is that, even
 if the Russell test remains controlling law, we still should
 reverse the decision of the Veterans Court. In making this
 argument, Mr. Blanton states that the Veterans Court “er-
 roneously affirmed the Board’s adverse decision based on
 its misinterpretation of the specificity required to allege
 CUE” as set out in Fugo v. Brown, 6 Vet. App. 40 (1993).
 Appellant’s Br. 25. What we understand Mr. Blanton to be
 referring to is the Veterans Court’s ruling that it would not
 consider a new argument in support of his theory that in
 1997 the RO misapplied the presumption of soundness.
 The purported new argument was that a laceration on Mr.
 Blanton’s arm was an in-service manifestation of a mental
 disorder. In rejecting the argument, the court stated, “Ap-
 pellant has not shown with the requisite degree of specific-
 ity that this argument was asserted before the Board as a
 reason that there was CUE in the 1997 RO decision based
 on a misapplication of the presumption of soundness.”
 2019 WL 1177988, at *3.
     Mr. Blanton’s second argument rests on a challenge to
 the Veterans Court’s application of the law of issue exhaus-
 tion to the facts of his case. It thus amounts to an argu-
 ment that is beyond the scope of our jurisdiction. See Scott
 v. Wilkie, 920 F.3d 1375, 1377–78 (Fed. Cir. 2019) (reciting
 jurisdictional limitations on Federal Circuit review of Vet-
 erans Court decisions). We therefore cannot consider it.
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 BLANTON   v. WILKIE                                     5



                       CONCLUSION
    For the foregoing reasons, the decision of the Veterans
 Court affirming the decision of the Board is affirmed.
                       AFFIRMED
