       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                HOWARD NEWGARD,
                 Claimant-Appellant,

                           v.

 ERIC K. SHINSEKI, Secretary of Veterans Affairs,
              Respondent-Appellee.
             ______________________

                      2014-7005
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1334, Chief Judge Bruce E.
Kasold.
               ______________________

                 Decided: May 8, 2014
                ______________________

   HOWARD NEWGARD, of Spencer, Iowa, pro se.

    AUSTIN M. FULK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director, and
STEVEN J. GILLINGHAM, Assistant Director. Of counsel
were MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel, TRACEY PARKER WARREN, Y. KEN LEE and BRIAN
2                                      NEWGARD   v. SHINSEKI



D. GRIFFIN, Attorneys, United States Department of
Veterans Affairs, of Washington, DC.
                    ______________________

    Before RADER, Chief Judge, DYK, and O’MALLEY, Circuit
                           Judges.
O’MALLEY, Circuit Judge.
     Howard Newgard appeals the judgment of the Court
of Appeals for Veterans Claims (“Veterans Court”) affirm-
ing the decision of the Board of Veterans Appeals
(“Board”) that (1) assigned a disability rating of 10% for a
left-knee disability from August 14, 1995 to July 19, 2001,
and (2) denied benefits for cervical, right-wrist, and right-
elbow disabilities, because these disabilities were not
incurred in or aggravated by service. Because we con-
clude that the Veterans Court did not err in finding that
Mr. Newgard did not establish that he was denied due
process in connection with his disability claims, and
because Mr. Newgard does not identify any appealable
issues that involve the validity or interpretation of a
statute or regulation, we affirm in part and dismiss in
part.
                      I. BACKGROUND
    In 1969, Mr. Newgard served on active duty with the
United States Army for less than five months. In August
1969, during a training exercise, Mr. Newgard fell and
tore the medial meniscus in his left knee. This was the
same knee he had injured in a tobogganing accident four
years before entering the army. Because of his injury, the
army placed Mr. Newgard on limited duty and subse-
quently discharged him.
    After his discharge, Mr. Newgard filed his original
service connection claim with the Veterans Administra-
tion in October 1970, arguing his service related activities
caused or, at a minimum, aggravated his knee injury. In
NEWGARD   v. SHINSEKI                                    3



March 1971, the Regional Office (“RO”) denied his claim,
finding that the pre-existing left knee condition was not
aggravated by active service (“March 1971 rating deci-
sion”). Mr. Newgard did not appeal this decision, which
became a final adjudication of the claim. See 38 U.S.C.
§ 7105(c) (2012) (“If no notice of disagreement is filed in
accordance with this chapter within the prescribed period,
the action or determination shall become final and the
claim will not thereafter be reopened or allowed, except as
may otherwise be provided by regulations not inconsistent
with this title.”); 38 C.F.R. §§ 20.302, 20.1103 (2012).
    Twenty-four years later, in August 1995, Mr. New-
gard filed a request to reopen his claim of entitlement to
service connection based on new and material evidence.
Along with this request, he also filed an application for
nonservice connected pension benefits. The RO, however,
determined that Mr. Newgard failed to submit new and
material evidence sufficient to reopen his claim of service
connected entitlement to a disability award and also
denied the request for nonservice connected pension
benefits (“October 1995 decision”). Mr. Newgard filed a
notice of disagreement, which, according to the Veterans
Court, kept his claims pending.
    In December 1995, Mr. Newgard resubmitted both re-
quests. The RO again denied the request to reopen the
claim of entitlement to service connection for his knee
injury, but awarded him nonservice connected pension
benefits and evaluated his left knee disability at 10%,
effective August 14, 1995. Newgard v. Shinseki, No. 08-
0249, 2010 WL 1734885, at *3 (Vet. App. Apr. 30, 2010).
   In March 1997, Mr. Newgard challenged the March
1971 rating decision, alleging that it contained clear and
unmistakable error (“CUE”). The RO found that the
March 1971 decision did not contain CUE and Mr. New-
gard did not appeal, making the decision final. See 38
U.S.C. § 7105(c).
4                                      NEWGARD   v. SHINSEKI



     In December 2003, based on a medical opinion sub-
mitted by Mr. Newgard’s physician, the RO reevaluated
the still-open October 1995 decision. In re Newgard, No.
03-08 191, slip op. at 11 (Bd. Vet. App. Jan 7, 2008).
Based on this new information, the RO granted Mr.
Newgard service connection for his left knee injury and
awarded a disability rating of 20% (“December 2003
rating decision”). Id. at 13. The service connection was
made retroactive to August 14, 1995—the date Mr. New-
gard reopened his claim of entitlement—but the 20%
disability rating was not deemed retroactive because the
Board found that, prior to July 2001, Mr. Newgard had
full range of motion in his knee. This meant that, while
he did receive the benefits noted above based on his knee
injury, he received no compensation for his service con-
nection disability from August 14, 1995 to July 18, 2001,
when the Board first deemed that injury compensable.
Id. at 23.
    In April 2003, Mr. Newgard submitted another chal-
lenge to the March 1971 rating decision, again alleging
CUE. Newgard v. Shinseki, No. 08-0249, 2010 WL
1734885, at *3 (Vet. App. Apr. 30, 2010). The RO denied
this claim in May 2004 (“May 2004 rating decision”).
     Mr. Newgard appealed the RO’s December 2003 and
May 2004 rating decisions—first to the Board, which
affirmed, and then to the Veterans Court. The Veterans
Court found that Mr. Newgard’s CUE motion was barred
by res judicata, but it also concluded that the Board failed
to consider all relevant evidence regarding Mr. Newgard’s
left knee injury and, therefore, vacated and remanded
that portion of the Board’s decision. Mr. Newgard ap-
pealed the Veterans Court’s decision to this court. See
Newgard v. Shinseki, 412 Fed. App’x 291, 292 (Fed. Cir.
2011). The panel affirmed the finding of res judicata and
dismissed Mr. Newgard’s due process arguments as an
improper attempt to argue that the March 1971 rating
decision was wrong. Id. at 294–95.
NEWGARD   v. SHINSEKI                                     5



    On remand, Mr. Newgard sought an increase in the
disability rating for his left knee and a service connection
for his cervical, right wrist, and right elbow injuries. The
Board found that Mr. Newgard was entitled to a 10%
disability rating for his left knee injury from August 14,
1995 to July 18, 2001. The Board, however, denied claims
of entitlement for his cervical, wrist, and elbow disabili-
ties because none of those injuries was sustained in or
aggravated by his service. The Veterans Court affirmed
the Board’s decision because the Board’s findings were
supported by substantial evidence. The Veterans Court
also found that Mr. Newgard had failed to demonstrate a
due process violation because the alleged new and unal-
tered documents he uncovered from his Freedom of In-
formation Act (“FOIA”) request had been in the record
since 2010 and none of the alleged new information
materially differed from the original record. Newgard v.
Shinseki, No. 12-1334, slip op. at 2–3 (Vet. App. Aug. 9,
2013). This appeal followed.
                        II. DISCUSSION
    Our jurisdiction over the decisions of the Veterans
Court is limited by statute. Bond v. Shinseki, 659 F.3d
1362, 1366 (Fed. Cir. 2011). Unless the appeal presents a
constitutional issue, we “may not review (A) a challenge to
a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2). Under 38 U.S.C. § 7292(a), we may
also review “the validity of a decision of the [Veterans]
Court on a rule of law or any statute or regulation . . . or
any interpretation thereof (other than a determination as
to a factual matter) that was relied on by the Court in
making the decision.” Mr. Newgard has alleged that his
appeal involves constitutional issues and the validity or
interpretation of a statute.
6                                     NEWGARD   v. SHINSEKI



                 a. Constitutional Issue
    Mr. Newgard argues that the Veterans Court has vio-
lated his constitutional right to due process by not giving
him a “meaningful opportunity to be heard.” Appellant’s
Br. 9. He further contends that our decision in Cushman
v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) mandates
reversal because, after Mr. Newgard made a FOIA re-
quest for his file in 2007, he uncovered additional and
unaltered documents that the RO had not included in the
record of the original March 1971 rating decision. Mr.
Newgard argues that, similar to Cushman where a docu-
ment in the record was altered, the missing and unaltered
documents from his file prove that he did not have a fair
hearing.
    The Government responds that this case falls outside
of our jurisdiction because, in its view, all of Mr. New-
gard’s arguments amount to factual disagreements con-
cerning the amount of his disability award.           The
Government further contends that Mr. Newgard’s due
process rights have not been violated because the Veter-
ans Court analyzed in the decision under review the
entire record, including the allegedly missing documents
found in Mr. Newgard’s 2007 FOIA request. The Gov-
ernment argues that the Veterans Court distinguished
Cushman because “the documents to which [Mr. New-
gard] cites do not reflect any substantive or material
differences across the versions.” Newgard v. Shinseki, No.
12-1334, slip op. at 2 (Vet. App. Aug. 9, 2013).
    In Cushman, we held that a veteran’s “entitlement to
benefits is a property interest protected by the Due Pro-
cess Clause of the Fifth Amendment to the United States
Constitution.” 576 F.3d at 1298. We disagree with the
Government that Mr. Newgard’s constitutional issue falls
outside our jurisdiction. Because Mr. Newgard’s entitle-
ment to benefits is protected by the Constitution, we have
jurisdiction to consider a constitutional challenge to a
NEWGARD   v. SHINSEKI                                     7



factual determination, as we did in Cushman.         See 38
U.S.C. § 7292(d)(2); Cushman, 576 F.3d at 1300.
    Turning to the merits, however, we hold the Govern-
ment did not violate Mr. Newgard’s right to due process.
We explained in Cushman that “[a]lterations of evidence
are material for due process purposes if there is a ‘reason-
able probability of a different result’ absent those altera-
tions.” Cushman, 576 F.3d at 1300 (quoting Kyles v.
Whitley, 514 U.S. 419, 434 (1995)). Because, in Cushman,
the content of the altered document indicated that the
veteran was more employable than did the content of the
unaltered document, we found that there was a reasona-
ble probability the result would have been different. Id.
In this case, on the other hand, the Board considered the
alleged new and unaltered documents in 2010. The new
and unaltered documents, moreover, did not reflect any
substantive or material differences with the old record.
See Newgard v. Shinseki, No. 12-1334, slip op. at 2 (Vet.
App. Aug. 9, 2013) (explaining that the alterations were to
the formatting and an irrelevant alleged date alteration,
and the missing document did not contain any personal or
admission data about Mr. Newgard besides his name).
Because these changes are irrelevant to the rating deci-
sion, there is no reasonable probability of a different
result absent those alleged alterations and omissions. See
Cushman, 576 F.3d at 1300. Accordingly, we affirm the
Veterans Court’s finding that Mr. Newgard was not
deprived of his right to due process.
        b. Validity or Interpretation of a Statute
     Mr. Newgard also alleges that the Veterans Court’s
decision involved the validity or interpretation of a stat-
ute or regulation. See 38 U.S.C. § 7292(a). Mr. Newgard
argues that the Veterans Court’s decision implicated the
validity or interpretation of a statute because he was
illegally discharged under United States Army regulation
AR 635-200, instead of under AR 40-501 and 29 C.F.R.
8                                      NEWGARD   v. SHINSEKI



§ 6718 (1964). He also argues that the Veterans Court
failed to afford him a “presumption of soundness” under
38 U.S.C. § 1111, and that he is entitled to a 100% disabil-
ity rating based on 38 C.F.R. § 4.29.
    The Government responds that the Veterans Court’s
decision did not elaborate on the meaning of any statute
or regulation, or involve a rule of law. The Government
argues that Mr. Newgard’s request to review his army
discharge under AR 635-200 is improper because the
Veterans Court does not review army discharges; it as-
sesses service connection.      The Government further
contends that Mr. Newgard is not entitled to a 100%
disability rating under 38 C.F.R. § 4.29 because that
disability rating is limited to the time spent confined in
the hospital. See 38 C.F.R. § 4.29(a).
    Mr. Newgard’s arguments are unpersuasive. The
statutes he identifies were not properly at issue before the
Veterans Court. Indeed, the Veterans Court’s decision did
not interpret or consider the validity of AR 635-200, 38
U.S.C. § 1111, or 38 C.F.R. § 4.29. Newgard v. Shinseki,
No. 12-1334, slip op. at 1–3 (Vet. App. Aug. 9, 2013). We
therefore do not have jurisdiction under 38 U.S.C.
§ 7292(a).
    We have considered Mr. Newgard’s remaining argu-
ments and find that none of them fall within our statuto-
rily defined jurisdiction for appeals from the Veterans
Court. 1



    1   For example, Mr. Newgard argues that his March
1997 challenge to the March 1971 rating decision did not
argue CUE and therefor did not bar the April 2003 CUE
challenge. Although this may have been relevant in his
prior appeal to this court, it is not at issue in this appeal
and the Veterans Court properly refused to address it.
See Newgard v. Shinseki, No. 12-1334, slip op. at 3 (Vet.
NEWGARD   v. SHINSEKI                                 9



                        III. CONCLUSION
   For the foregoing reasons, we affirm in part and dis-
miss in part for lack jurisdiction.
        AFFIRMED IN PART AND DISMISSED IN
                    PART




App. Aug. 9, 2013); see also Newgard, 412 Fed. App’x at
292. We therefore do not have jurisdiction to review Mr.
Newgard’s CUE argument. See 38 U.S.C. § 7292(a).
