Case: 25-1163 Document: 25 Page: 1 Filed: 03/03/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

LAMAR BERRY, Claimant-Appellant

v.

DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2025-1163 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 24-2983, Judge Michael P. Allen. ______________________

Decided: March 3, 2025 ______________________

LAMAR BERRY, Austin, TX, pro se.

VIJAYA SURAMPUDI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA PREHEIM; MATTHEW ALBANESE, DEREK SCADDEN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________ Case: 25-1163 Document: 25 Page: 2 Filed: 03/03/2025

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Before DYK, CUNNINGHAM, and STARK, Circuit Judges. PER CURIAM. Lamar Berry appeals from an order of the United States Court of Appeals for Veterans Claims (“Veterans Court”). Berry v. McDonough, No. 24-2983, 2024 WL 4157840, at *2 (Vet. App. Sept. 12, 2024) (“Dismissal Or- der”). We affirm. BACKGROUND Mr. Berry is a veteran of the United States Army, pro- ceeding pro se, who sought service connection for several conditions. Mr. Berry served in the Army from October 1972 to October 1975. At various times thereafter, he sought service connection for headaches, back and stomach conditions, and prostate cancer. Those claims were denied by the Department of Veterans Affairs (“VA”) regional of- fice (“RO”), and Mr. Berry did not appeal. Later, but before 2011, he sought to reopen his prostate cancer claim on grounds of new and material evidence. The RO refused to reopen the claim, and Mr. Berry did not appeal. In 2011, Mr. Berry sought service connection for a stomach condition and to reopen his service connection claims based on new and material evidence. As relevant here, he also alleged clear and unmistakable error (“CUE”) in the previous RO decisions. In September 2012, the RO again denied service con- nection for Mr. Berry’s stomach condition claim on the ground that the condition did not result from military ser- vice. The RO also denied Mr. Berry’s request to reopen the other claims on the ground that the evidence submitted was not new and material. The RO did not address Mr. Berry’s CUE allegations. In October 2012, Mr. Berry filed a notice of disagree- ment with the RO’s September 2012 decision. Among other Case: 25-1163 Document: 25 Page: 3 Filed: 03/03/2025

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things, Mr. Berry alleged CUE in the previous rating deci- sions. In November 2015, the RO affirmed its September 2012 decision again without addressing Mr. Berry’s CUE allegations. In December 2015, Mr. Berry appealed the RO’s November 2015 decision to the Board of Veterans’ Ap- peals (“Board”). In a deferred rating decision dated December 2015, the RO acknowledged Mr. Berry’s CUE allegations but found that Mr. Berry had not submitted the proper forms to sup- port such a claim. In January 2016, in accordance with the December 2015 decision, the RO sent a letter to Mr. Berry instructing him to submit a VA Form 21-526EZ (Applica- tion for Disability Compensation and Related Compensa- tion Benefits) or to otherwise submit a new intent to file a claim. The RO also informed Mr. Berry that it “w[ould] take no further action until [it] receive[d] [his] completed application for benefits or complete intent to file.” Record of Proceedings at 1730, Lamar Berry v. Robert L. Wilkie, CAVC No. 18-5579. Mr. Berry did not respond to the Jan- uary 2016 letter, and there is no evidence in the record that Mr. Berry to date has filed the requested forms. On September 11, 2018, the Board denied the new and material evidence claims but did not address CUE. See S. App’x 22–311 (“September 2018 Board Decision”). The Veterans Court later affirmed the Board’s decision not to reopen the new and material evidence claims and dis- missed Mr. Berry’s CUE appeals because the Board had not rendered a final decision on them. Mr. Berry then appealed to this court. On July 10, 2020, we affirmed the Veterans Court’s dismissal of the CUE allegations because the Board had not rendered a

1 Citations to “S. App’x” refer to the Supplemental Appendix filed by the government with its Corrected Infor- mal Brief. Case: 25-1163 Document: 25 Page: 4 Filed: 03/03/2025

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final decision on those claims, and the Veterans Court thus lacked jurisdiction to review them. We dismissed the ap- peal as to the new and material evidence claims. Almost three years later, on May 19, 2023, Mr. Berry filed a “motion to reopen and revise [the September 2018 Board] Decision,” which was the subject of his previous ap- peal to this court. S. App’x 1. He argued that the Board erred in not considering his CUE allegations in its 2018 de- cision. The Board apparently treated Mr. Berry’s motion as one for reconsideration. On April 22, 2024, the Board’s Deputy Vice Chairman denied Mr. Berry’s motion, deter- mining Mr. Berry had not shown an obvious error of fact or law in the September 2018 Board Decision. On May 2, 2024, Mr. Berry appealed to the Veterans Court, seeking review of the April 2024 denial of his motion for reconsideration. On September 12, 2024, the Veterans Court dismissed the appeal, explaining that it could not re- visit issues that have already been considered and finally decided by this court. See Dismissal Order at *2. DISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). We may review a Veterans Court decision with respect to the validity of a decision on a rule of law or the validity or interpretation of any statute or regulation that was relied on by the Veterans Court in making the decision. 38 U.S.C. § 7292(a). Except with respect to con- stitutional issues, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regu- lation as applied to the facts of a particular case.” Id. § 7292(d)(2). On appeal, Mr. Berry appears to argue that the Veter- ans Court erred in not exercising jurisdiction over his CUE appeal. We disagree. Case: 25-1163 Document: 25 Page: 5 Filed: 03/03/2025

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This court has long established that the basic princi- ples of finality and res judicata apply to veterans’ claims. See, e.g., Routen v. West, 142 F.3d 1434, 1437–38 (Fed. Cir. 1998). “[T]o prevail on a claim of res judicata, the party asserting the bar must prove that (1) the parties are iden- tical or in privity; (2) the first suit proceeded to a final judg- ment on the merits; and (3) the second claim is based on the same set of transactional facts as the first.” Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003). A dismissal for lack of jurisdiction triggers the application of the doctrine of res judicata as to the jurisdictional issue. Amgen Inc. v. U.S. Int’l Trade Comm’n, 902 F.2d 1532, 1536 n.5 (Fed. Cir. 1990); Watson v. United States, 349 F. App’x 542, 544 (Fed. Cir. 2009) (nonprecedential). In view of res judicata principles, the Veterans Court properly found it could not “revisit” the merits of the Sep- tember 2018 Board Decision because that matter was fi- nally decided by our court. Dismissal Order at *2. The arguments that Mr. Berry now raises as to the merits of the September 2018 Board Decision are based on the same operative set of facts as were at issue in the first appeal. Accordingly, we conclude Mr. Berry’s appeal is barred in the Veterans Court by the doctrine of res judicata. Amgen, 902 F.2d at 1536 n.5 (“Dismissals for lack of jurisdiction may be given res judicata effect as to the jurisdictional is- sue.”). To be clear, we do not hold that Mr. Berry is barred from submitting a proper CUE claim to the VA, as the Board invited him to do in 2016. We hold only that the Veterans Court did not err in dismissing Mr. Berry’s ap- peal in this case as foreclosed by res judicata. Mr. Berry also appears to argue that the Secretary, Board, Veterans Court, or their respective employees en- gaged in unethical behavior and/or were part of a conspir- acy at some point in the proceedings. Mr. Berry’s only support appears to be the Board’s and Veterans Court’s Case: 25-1163 Document: 25 Page: 6 Filed: 03/03/2025

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rulings themselves, but “judicial rulings alone almost never constitute a valid basis for a bias or partiality mo- tion.” Liteky v. United States, 510 U.S. 540, 555 (1994). We thus conclude there is no merit to Mr. Berry’s arguments on this issue. CONCLUSION We have considered Mr. Berry’s remaining arguments and find them unpersuasive. We affirm the Veterans Court’s dismissal of Mr. Berry’s appeal. AFFIRMED COSTS No costs.