Frank D. Batiste v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANK D. BATISTE,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2025-1106
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-7626, Senior Judge Mary J.
Schoelen.
______________________
Decided: May 21, 2026
______________________
J. BRYAN J ONES , III, J B Jones III LLC, Lafayette, LA,
argued for claimant-appellant.
AUGUSTUS G OLDEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by ERIC P. BRUSKIN, P ATRICIA M. M C CARTHY , BRETT
SHUMATE; CARLING K AY BENNETT , D EREK S CADDEN, Office
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BATISTE v. COLLINS 2
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before T ARANTO, SCHALL , and CHEN, Circuit Judges.
P ER CURIAM .
Frank D. Batiste served in the United States Army
from 1972 to 1975. On August 18, 2006, he applied on his
own (i.e., without representation) for a pension, under 38
U.S.C. §§ 1513, 1521, based on a disability traceable not to
his service but to a motor vehicle accident in 2000. In that
pension application, Mr. Batiste responded “no” to the
question of whether he was “claiming a special monthly
pension [SMP] because [he] need[s] the regular assistance
of another person,” J.A. 93 (question 2), a question embod-
ying the relevant standard for receipt of an SMP addition
to the otherwise-granted pension, see 38 U.S.C. §§ 1502(b),
1521(d); 38 C.F.R. § 3.351(a)(1). In May 2007, the relevant
Regional Office (RO) of the Department of Veterans Affairs
(VA) granted Mr. Batiste a pension without a special
monthly pension, giving the award an effective date of Au-
gust 18, 2006, J.A. 38–41, and basing it on documentation
Mr. Batiste submitted from two medical examinations (in
2002 and 2005) and social security records, J.A. 48–66; J.A.
67–69; J.A. 78–82. The RO informed Mr. Batiste that he
had one year to appeal, J.A. 40, but he did not do so.
On June 15, 2016, Mr. Batiste, now represented by
counsel, filed a notice of intent to file a claim for a special
monthly pension. J.A. 35. After a VA examination to eval-
uate whether Mr. Batiste needed regular aid and attend-
ance, the RO granted him an SMP, assigning the award an
effective date of June 15, 2016. J.A. 30–35. Mr. Batiste
timely filed a Notice of Disagreement seeking an earlier ef-
fective date, specifically, August 18, 2006, the date of his
earlier pension application. J.A. 27–29.
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BATISTE v. COLLINS 3
The Board of Veteran’s Appeals found that the June 15,
2016 effective date was correct, J.A. 19–23, but the United
States Court of Appeals for Veterans Claims (Veterans
Court), at the behest of the Secretary and Mr. Batiste, re-
manded the matter to the Board for further consideration,
J.A. 10. In November 2023, the Board again found June
15, 2016, to be the proper effective date for the SMP. J.A.
9–15. The Board reasoned that, in completing his applica-
tion in 2006, Mr. Batiste was in the best position to know
whether he needed regular aid. J.A. 13. And if Mr. Batiste,
in May 2007, believed his needs justified an SMP, he could
have timely filed a Notice of Disagreement. J.A. 12. The
Board also reexamined the medical evidence that Mr. Ba-
tiste had submitted in 2006–07 and found that it did not
indicate that he required regular aid and attendance. J.A.
13–14.
Mr. Batiste appealed to the Veterans Court. He argued
that the Board had erroneously focused only on his “no” an-
swer to the SMP-related question in his 2006 application
and, also, had “ignor[ed] the fact that the evidence submit-
ted [in support of the 2006 application] . . . indicated that
[he] used a rolling walker and cane,” which, he asserted,
amounted to an informal claim for an SMP on August 18,
2006. Batiste Opening Br., Batiste v. McDonough, No. 23-
7626 (Vet. App. May 1, 2024), ECF No. 1 at 3–6 (Batiste
CAVC Br.); see 38 C.F.R. § 3.155(a) (2006). The Veterans
Court disagreed with Mr. Batiste and affirmed the Board’s
decision. Batiste v. McDonough, No. 23-7626, 2024 WL
3897035 (Vet. App. Aug. 22, 2024) (Decision).
The Veterans Court ruled that the Board did not
clearly err in finding that Mr. Batiste had not submitted
an informal claim for an SMP before June 15, 2016, and
the Veterans Court came to that conclusion while viewing
the 2006 application liberally because Mr. Batiste had ap-
plied for his pension in 2006 without counsel. Decision, at
*5. The Veterans Court, beyond recognizing the signifi-
cance of the “no” answer to the question posed in the
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BATISTE v. COLLINS 4
pension application, inquired whether a claim for aid and
attendance, though not expressly presented, was suffi-
ciently implicit in the underlying evidence, including the
evidence of his use of a rolling walker and cane (as ex-
pressed in his briefing). Id. at *4–5 (citing Sellers v. Wilkie,
965 F.3d 1328, 1337 (Fed. Cir. 2020) and Szemraj v. Prin-
cipi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)); see also id. at *4
(citing Batiste CAVC Br., at 3–5). The Veterans Court de-
termined that the Board had not erred in deciding that Mr.
Batiste’s identified evidence did not give rise to a basis for
an informal claim in 2006 or, therefore, justified the as-
serted 2006 effective date for the SMP. Id. at *5.
Mr. Batiste timely appealed the Decision, invoking our
jurisdiction under 38 U.S.C. § 7292. Because this case in-
volves no constitutional issue, our jurisdiction is limited to
issues of asserted legal error by the Veterans Court, and a
challenge of error in a factual finding, or of mere misappli-
cation of law to fact, is outside our authority. See, e.g., Per-
ciavalle v. McDonough, 101 F.4th 829, 835 (Fed. Cir. 2024).
We conclude that Mr. Batiste has presented no issue that
we have jurisdiction to decide. His legal argument focuses
almost exclusively on asserted Board errors, only once con-
tending (and without explaining his conclusion) that “the
Board and the [Veterans Court], in turn, erred[.]” Batiste
Opening Br. at 14; see id. at 5, 8, 10, 12, 13 (arguing about
error in the Board’s decision). And Mr. Batiste otherwise
essentially asks us to reweigh the evidence and find “fac-
tual error,” id. at 12; see also id. at 1, 5, 7, 8, 9, but we lack
jurisdiction to do so.
Mr. Batiste stresses that because he was pro se when
filing for a pension in 2006, he is owed “[a] liberal and sym-
pathetic reading” of his claim under Comer v. Peake, 552
F.3d 1362, 1367–69 (Fed. Cir. 2009). Batiste Opening Br.
at 9–11. But he fails to raise a legal argument that would
give us jurisdiction.
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BATISTE v. COLLINS 5
Mr. Batiste aims his allegation of legal error based on
Comer at the decision of the Board. But our jurisdiction
over legal errors, as relevant here, is limited to legal errors
by the Veterans Court. See Janich v. Collins, 168 F.4th
1371, 1374–75 (Fed. Cir. 2026). Mr. Batiste does not iden-
tify a Comer error by the Veterans Court.
Nor do we see any such error by the Veterans Court,
which expressly recognized the relevant principles of
Comer. The Veterans Court recognized that Mr. Batiste’s
evidence should be given a sympathetic reading, and it re-
viewed the evidence, and the Board’s analysis of the evi-
dence, including the evidence of a need for a rolling walker
and cane, through that lens. Decision, at *5; see Batiste
CAVC Br., at 6; Batiste Opening Br. at 8, 9, 12, 13. It con-
cluded, applying the governing legal standard to the facts
of this case, that there was no ambiguity to resolve. Deci-
sion, at *5.
In this circumstance, there is no identified legal error
that comes within our jurisdiction. In Ellington v. Peake,
“the Veterans Court explicitly acknowledged its obligation
to sympathetically read [a veteran’s] claims . . . im-
plicat[ing] the application of law to fact, a matter over
which we lack jurisdiction.” 541 F.3d 1364, 1372 (Fed. Cir.
2008) (cleaned up). Mr. Batiste’s argument about the Vet-
erans Court’s treatment of Comer is at most an argument
about application of law to fact—an argument we lack ju-
risdiction to entertain.
To the extent that Mr. Batiste otherwise argues factual
error by the Board or the Veterans Court, such an argu-
ment is likewise beyond our jurisdiction. That is so even
for Mr. Batiste’s reliance, at oral argument in this court, on
a statement in his social-security-disability record in Octo-
ber 2006 that he could not take a bath, so he took showers
instead. Oral Arg. 28:41–29:42, https://www.cafc.uscourts.
gov/oral-arguments/25-1106_05052026.mp3; see J.A. 61.
In addition, we note, this evidence is not compelling on the
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BATISTE v. COLLINS 6
aid issue in itself, as reflected in the apparent absence of
any singling out of this showering/bathing evidence in his
brief here or in the Veterans Court, or even a mention of it
in the argument sections of those briefs.
Because we are without jurisdiction to rule on the issue
presented by Mr. Batiste, we must dismiss his appeal.
The parties shall bear their own costs.
DISMISSED
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