Case: 19-2380    Document: 39     Page: 1   Filed: 11/10/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                EARNEST ELLIOTT, JR.,
                   Claimant-Appellant

                             v.

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

                        2019-2380
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-3676, Senior Judge Robert N.
 Davis.
                ______________________

                Decided: November 10, 2020
                  ______________________

     HAROLD HAMILTON HOFFMAN, III, Veterans Legal Ad-
 vocacy Group, Arlington, VA, for claimant-appellant. Also
 represented by EVAN TYLER SNIPES.

     ERIC JOHN SINGLEY, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
 KIRSCHMAN, JR.; BRIAN D. GRIFFIN, ANDREW J. STEINBERG,
Case: 19-2380    Document: 39      Page: 2    Filed: 11/10/2020




2                                            ELLIOTT   v. WILKIE



 Office of General Counsel, United States Department of
 Veterans Affairs, Washington, DC.
                  ______________________

    Before LOURIE, REYNA, and WALLACH, Circuit Judges.
 PER CURIAM.
      Earnest Elliott, Jr. appeals from the judgment of the
 United States Court of Appeals for Veterans Claims (the
 “Veterans Court”) affirming the decision of the Board of
 Veterans’ Appeals (the “Board”) denying Elliott’s claim of
 clear and unmistakable error in a 1999 Department of Vet-
 erans Affairs regional office (“RO”) claim decision. See El-
 liott v. Wilkie, No. 17-3676, 

2019 WL 3403587

(Vet. App.
 July 29, 2019). Because Elliott only challenges the Veter-
 ans Court’s factual determinations and application of law
 to the facts, this appeal falls outside our jurisdiction. We
 therefore dismiss Elliott’s appeal.
                        BACKGROUND
     Elliott served in the military from February 1990 to
 April 1998. Doctors diagnosed him with a grade III left
 acromioclavicular (“AC”) joint separation after a January
 1997 car accident. In February 1997, a medical examiner
 found Elliott fit for duty, noting that the left AC joint was
 non-tender and the injury asymptomatic. A medical record
 from October 1997 indicates that Elliott reported no shoul-
 der pain and had no residual defects. A January 1998 med-
 ical record notes Elliott’s report of shoulder pain after
 sports activity. A doctor prescribed limited duty, noting
 abduction strength loss.
      Elliott was discharged in April 1998. In May 1998, El-
 liott filed a claim for service-connected disability compen-
 sation. A June 1998 medical record notes normal range of
 left shoulder motion as well as Elliott’s complaints of
 numbness and tingling in his left arm, cold weather stiff-
 ness, collarbone pain, and pain on palpitation of the
Case: 19-2380      Document: 39     Page: 3    Filed: 11/10/2020




 ELLIOTT   v. WILKIE                                          3



 collarbone. In February 1999, the RO awarded service con-
 nection for residuals of the left shoulder condition but as-
 signed a noncompensable rating under diagnostic code
 5203.
      In November 2010, Elliott filed a claim of clear and un-
 mistakable error in the RO’s 1999 decision regarding the
 noncompensable rating. The RO denied Elliott’s claim. El-
 liott then appealed to the Board, and the Board affirmed
 on September 19, 2017. Elliott appealed the Board’s 2017
 decision and the Veterans Court affirmed, finding no clear
 and unmistakable error in the RO’s 1999 decision as to the
 noncompensable disability rating for the left shoulder con-
 dition. Elliott timely appealed to this court.
                          DISCUSSION
     Our jurisdiction to review a judgment of the Court of
 Appeals for Veterans Claims, as set forth in 38 U.S.C.
 § 7292, is limited. Wanless v. Shinseki, 

618 F.3d 1333

,
 1336 (Fed. Cir. 2010). We have jurisdiction to review “the
 validity of a decision of the [Veterans] Court on a rule of
 law or of any statute or regulation . . . or any interpretation
 thereof (other than a determination as to a factual matter)
 that was relied on by the [Veterans] Court in making the
 decision.” 38 U.S.C. § 7292(a). Unless a constitutional is-
 sue is presented, however, this court may not review “a
 challenge to a factual determination, or . . . a challenge to
 a law or regulation as applied to the facts of a particular
 case.” 38 U.S.C. § 7292(d)(2); see 

Wanless, 618 F.3d at 1336

.
     Elliott asserts that this court has jurisdiction to hear
 this appeal under 38 U.S.C. § 7292(a) based on several al-
 leged questions of law. Elliott first argues that the Veter-
 ans Court exceeded its harmless error review scope
 authority under 38 U.S.C. § 7261(b)(2) by making medical
 determinations, creating a presumption of healing, and
 finding extra-record facts. Elliott next alleges that the Vet-
 erans Court violated 38 U.S.C. § 5109A and 38 C.F.R.
Case: 19-2380     Document: 39      Page: 4    Filed: 11/10/2020




4                                             ELLIOTT   v. WILKIE



 § 3.105 by misinterpreting what constitutes a “current dis-
 ability” under 38 U.S.C. § 1110 when the Veterans Court
 considered medical exams predating the disability rating
 period. Elliott further argues that the Veterans Court al-
 lowed misapplication of pain regulations in 1999 and there-
 fore also in this case, citing 38 C.F.R. § 4.71a and 38 C.F.R.
 §§ 4.10, 4.40, 4.45, 4.56, and 4.59. The government re-
 sponds that the issues raised on appeal are not within the
 jurisdiction of this court but instead concern a factual dis-
 pute: disagreement with how the RO weighed the evidence.
     We agree with the government that we lack jurisdic-
 tion to hear Elliott’s appeal. The Veterans Court did not
 interpret 38 U.S.C. § 7261(b)(2), 38 U.S.C. § 5109A, or 38
 C.F.R. § 3.105 in its decision. Rather, it merely applied the
 law to the facts of the case. While Elliott believes that he
 submitted sufficient evidence to establish clear and unmis-
 takable error, the RO, Board, and Veterans Court did not.
 This amounts to a dispute over how the evidence was
 weighed. Elliott’s argument thus does not present an issue
 on appeal over which we may exercise jurisdiction. See 38
 U.S.C. § 7292(d)(2).
     Similarly, we find unpersuasive Elliott’s argument re-
 garding misapplication of 38 C.F.R. § 4.71a and 38 C.F.R.
 §§ 4.10, 4.40, 4.45, 4.56, and 4.59. Elliott challenges the
 regulations as applied to the facts of his case. This argu-
 ment for jurisdiction of this court also fails. See 38 U.S.C.
 § 7292(d)(2).
                         CONCLUSION
     We have considered Elliott’s remaining arguments but
 find them unpersuasive. For the reasons stated above, we
 dismiss Elliott’s appeal for lack of jurisdiction.
                        DISMISSED
                            COSTS
     No costs.