Guadalupe Lopez, Jr. v. Douglas A. Collins, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GUADALUPE LOPEZ, JR.,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2026-1090
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 24-1933, Chief Judge Michael P.
Allen.
______________________
Decided: April 10, 2026
______________________
GUADALUPE LOPEZ, JR., San Antonio, TX, pro se.
BLAKE WILLIAM COWMAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by ALBERT S. IAROSSI, PATRICIA M. MCCARTHY,
BRETT SHUMATE; TYRONE COLLIER, Y. KEN LEE, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
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LOPEZ v. COLLINS 2
______________________
Before TARANTO, CUNNINGHAM, and STARK, Circuit
Judges.
PER CURIAM.
Guadalupe Lopez, Jr. appeals a decision of the Court of
Appeals for Veterans Claims (“Veterans Court”) affirming
a dismissal by the Board of Veterans’ Appeals (“Board”) of
his motion to revise an earlier Board order due to clear and
unmistakable error (“CUE”). Because the Veterans Court
did not err in determining Mr. Lopez was legally barred
from bringing a CUE claim as to the order he sought to re-
vise, we affirm.
I
Mr. Lopez served in the United States Marine Corps
from February 1967 through March 1970. Following his
honorable discharge, Mr. Lopez sought service connection
for coronary artery disease (“CAD”) and headaches.1 In a
July 2020 order, the Board issued three rulings pertinent
to this appeal: (i) it granted service connection for CAD
with an effective date of January 14, 1997; (ii) it denied a
disability rating in excess of 30 percent for CAD for the
1 The government reads Mr. Lopez’s informal open-
ing brief as limiting his appeal to issues relating to his CAD
claim, not also his headache claim. We are not certain this
is correct. Among the issues Mr. Lopez is raising is a chal-
lenge to the Veterans Court’s determination that portions
of the Board’s July 2020 order are not final; that challenge
would seem to relate only to the portion of the Board’s order
that remanded Mr. Lopez’s headache claim. Given that
Mr. Lopez is representing himself, and hence we review his
papers liberally, see Durr v. Nicholson, 400 F.3d 1375, 1380
(Fed. Cir. 2005), we conclude his brief preserved the head-
ache issue he undisputedly raised in the Veterans Court,
and which the Veterans Court addressed.
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LOPEZ v. COLLINS 3
period beginning January 29, 2015; and (iii) it remanded
Mr. Lopez’s headache claim to the regional office (“RO”) for
further fact finding. Mr. Lopez appealed the Board’s order
to the Veterans Court, which affirmed the Board in Novem-
ber 2021. He appealed that decision to this court, and we
dismissed for lack of jurisdiction.
Mr. Lopez then filed a motion with the Board request-
ing that the Board revise its July 2020 decision based on
CUE. In February 2023, the Board dismissed his motion,
concluding that, as to his CAD claim, the Veterans Court’s
November 2021 decision affirming the Board’s July 2020
order precluded the Board from considering a CUE motion
to revise, and as to his headache claim its July 2020 order
remanding for further evidentiary development did not
constitute a “final order” capable of revision under 38
C.F.R. § 20.1400(b). Mr. Lopez appealed the Board’s dis-
missal order to the Veterans Court, which affirmed. He
now appeals to us.
II
Our jurisdiction to review appeals from the Veterans
Court is limited by 38 U.S.C. § 7292. “[E]xcept with respect
to constitutional issues, we do not have jurisdiction to ‘re-
view (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.’” Bean v. McDonough, 66 F.4th 979, 987
(Fed. Cir. 2023) (quoting 38 U.S.C. § 7292(d)(2)). Mr.
Lopez’s appeal presents issues of law (which we describe
and address below) over which we have jurisdiction. We
review the Veterans Court’s interpretation of its own regu-
lation for whether it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
38 U.S.C. § 7292(d)(1)(A).
III
Mr. Lopez’s appeal presents two questions of law.
First, as to the Board’s dismissal of his motion to revise the
effective date and rating for his CAD claim, Mr. Lopez
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LOPEZ v. COLLINS 4
contends that the Veterans Court adopted an overly broad
reading of 38 C.F.R. § 20.1400(b), effectively treating any
prior Veterans Court affirmance as categorically foreclos-
ing later CUE review, a result he argues is inconsistent
with 38 C.F.R. § 3.156 and 38 U.S.C. § 5108, governing,
respectively, the reopening of closed claims and the initia-
tion of supplemental claims based on new evidence.2 Sec-
ond, he argues that the Veterans Court again
misinterpreted 38 C.F.R. § 20.1400(b) when it concluded
that the Board’s July 2020 decision was not “final” as to his
headache claim and, thus, not subject to revision. We ad-
dress these issues in turn.
A
Mr. Lopez argues that the Veterans Court violated
38 C.F.R. § 3.156 and 38 U.S.C. § 5108 when it affirmed the
dismissal of his motion for revision of the effective date and
disability rating for his CAD claim.3 The regulation on
2 Mr. Lopez’s opening brief in the Veterans Court ex-
pressly cited 38 C.F.R. §§ 20.1105 and 3.156(a), as well as
38 U.S.C. § 5108, as exceptions to the general rule of final-
ity, and invoked them in challenging the Board’s dismissal
of his CUE claim. Liberally construed, we will treat that
brief as preserving the issue Mr. Lopez more directly pre-
sents to us. See generally Linville v. West, 165 F.3d 1382,
1384-85 (Fed. Cir. 1999) (“[A] question otherwise permissi-
ble for review under 38 U.S.C. § 7292 does not fail the ju-
risdictional test simply because it was ignored or silently
rejected by the [Veterans] Court.”).
3 In making this argument, Mr. Lopez also cites 38
C.F.R. § 3.304(b) (presumption of soundness) and the Hon-
oring Our PACT Act of 2022, Pub. L. No. 117-168, 136 Stat.
1759 (2022) (relating to service connection requirements
for burn pit disabilities). To the extent those authorities
have any relevance, it would solely be to invite us to apply
law to the facts of Mr. Lopez’s case, which is outside of our
jurisdiction.
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LOPEZ v. COLLINS 5
which he relies, 38 C.F.R. § 3.156(a), provides that “[a]
claimant may reopen a finally adjudicated legacy claim by
submitting new and material evidence . . . not previously
part of the actual record before agency adjudicators[.]” The
statute, 38 U.S.C. § 5108, similarly provides that “[i]f new
and relevant evidence is presented or secured with respect
to a supplemental claim, the Secretary shall readjudicate
the claim[.]”
Unfortunately for Mr. Lopez, neither
38 C.F.R. § 3.156(a) nor 38 U.S.C. § 5108 allows for revi-
sion of an order rendered prior to the submission of new
evidence. Instead, they authorize the reopening or readju-
cation of an already-adjudicated claim. See 38 C.F.R.
§ 3.156(a) (“A claimant may reopen a finally adjudicated
legacy claim by submitting new and material evidence[.]”)
(emphasis added); see also 38 U.S.C. § 5108 (“If new and
relevant evidence is presented . . . the Secretary shall re-
adjudicate the claim[.]”) (emphasis added).
Nothing in either 38 C.F.R. § 3.156(a) or 38 U.S.C.
§ 5108 alters 38 C.F.R. § 20.1400(b)(1)’s bar on seeking re-
vision of a Board order when that order has been affirmed
by the Veterans Court. Section 20.1400(b) provides:
All final Board decisions are subject to revision un-
der this subpart except:
(1) Decisions on issues which have been ap-
pealed to and decided by a court of com-
petent jurisdiction; and
(2) Decisions on issues which have subse-
quently been decided by a court of com-
petent jurisdiction.
(emphasis added).
In Winsett v. Principi, 341 F.3d 1329, 1331
(Fed. Cir. 2003), we addressed “whether a CUE claim can
be brought after the underlying issue has been adjudicated
by a court,” including the Veterans Court. Construing
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LOPEZ v. COLLINS 6
§ 20.1400(b), we held that a CUE claim is not available af-
ter affirmance of the underlying order. Id. at 1332. We
explained that “a contrary interpretation of the rule would
effectively allow a lower tribunal to review the decision of
a higher tribunal – a situation that is not logical.” Id. at
1331. Thus, even if Mr. Lopez now has new evidence that
could support reopening or filing a new supplemental claim
with respect to CAD, he cannot overcome § 20.1400(b)’s
prohibition on obtaining the relief of revision of the Board’s
already-affirmed July 2020 order.4
B
The Veterans Court additionally affirmed the Board’s
dismissal of Mr. Lopez’s motion to revise the July 2020 or-
der remanding his headache claim on the grounds that the
remand order is not a “final” order for purposes of appeal.
SAppx2 (“[R]emand decisions are not final decisions under
the law . . . .”).5 The Veterans Court reasoned that because
38 C.F.R. § 20.1400(b) provides only that “final Board deci-
sions are subject to revision” (emphasis added), and the re-
mand order is not final, the Board was correct to dismiss
Mr. Lopez’s motion to revise the non-final remand order.
We agree with the Veterans Court. See Howard v. Gober,
220 F.3d 1341, 1344 (Fed. Cir. 2000) (“[T]he Board’s re-
mand does not constitute a final decision that may be ap-
pealed.”).6
4 Our conclusion has no bearing upon Mr. Lopez’s
ability to seek readjudication or reopening of his CAD claim
under either 38 U.S.C. § 5108 or 38 C.F.R. § 3.156(a).
5 “SAppx” refers to the Supplemental Appendix filed
with the Government’s Informal Response Brief, ECF No.
8. 6 There are limited circumstances in which appellate
bodies “will depart from the strict rule of finality,” but Mr.
Lopez does not argue such circumstances are present here,
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LOPEZ v. COLLINS 7
IV
We have considered Mr. Lopez’s remaining arguments
and find they lack merit.7 Accordingly, for the foregoing
reasons, the decision of the Veterans Court is affirmed.
AFFIRMED
COSTS
No costs.
nor do we perceive that they are. See generally Williams v.
Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002).
7 We lack jurisdiction to consider Mr. Lopez’s re-
maining contentions, including his purported constitu-
tional claims. See Helfer v. West, 174 F.3d 1332, 1335 (Fed.
Cir. 1999) (“[An appellant’s] characterization of [a] ques-
tion as constitutional in nature does not confer upon us ju-
risdiction we otherwise lack.”); see also Monsanto Co. v.
Scruggs, 459 F.3d 1328, 1341 (Fed. Cir. 2006) (“In order for
this court to reach the merits of an issue on appeal, it must
be adequately developed. . . . [M]erely stating disagreement
with the trial court does not amount to a developed argu-
ment.”). To the extent Mr. Lopez additionally raises judi-
cial misconduct allegations, we may not review such
complaints of misconduct by Veterans Court judges in the
first instance. See 38 U.S.C. § 7253(g)(1) (“The [Veterans]
Court shall prescribe rules, consistent with the provisions
of chapter 16 of title 28, establishing procedures for the fil-
ing of complaints with respect to the conduct of any judge
of the [Veterans] Court and for the investigation and reso-
lution of such complaints.”); see also Rules of the Judicial
Council of the United States Court of Appeals for Veterans
Claims Governing Complaints of Judicial Misconduct and
Disability, Rule 2(a) (“Complaints must be made on the of-
ficial form for filing complaints.”).
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