Ortiz v. Dept. Of Veterans Affairs , 427 F. App'x 889 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PABLO ORTIZ,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7073
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-3054, Judge Robert N.
Davis.
___________________________
Decided: June 10, 2011
___________________________
PABLO ORTIZ, of Glendale, Arizona, pro se.
SCOTT PALMER, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC., for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and
ORTIZ v. DVA 2
REGINALD T. BLADES, JR, Assistant Director. Of counsel
on the brief was MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before BRYSON, DYK, and O’MALLEY, Circuit Judges.
PER CURIAM.
DECISION
Pablo Ortiz appeals from an adverse decision of the
Court of Appeals for Veterans Claims (“the Veterans
Court”). We affirm.
BACKGROUND
Mr. Ortiz fractured his left ankle in 1972 while serv-
ing on active duty in the U.S. Army. The injury was
found to be service connected, and Mr. Ortiz was assigned
a disability rating of 10% for residuals associated with
that injury. Mr. Ortiz later requested that his disability
rating be increased. He also asked to be rated as totally
disabled based on individual unemployability (“TDIU”).
Following a series of decisions by the regional office, the
Board of Veterans’ Appeals, and the Veterans Court, the
Board issued an order denying Mr. Ortiz’s request for an
increase in rating and remanding Mr. Ortiz’s TDIU claim
to the regional office. The Board explained that the
medical evidence of record and the veteran’s self-reported
evaluation of his ankle condition all confirmed that the
proper rating is 10%. With respect to the TDIU claim, the
Board instructed the regional office to consider the com-
bined effect of Mr. Ortiz’s service-connected ankle injury
and his diabetes on his ability to maintain gainful em-
ployment.
3 ORTIZ v. DVA
Mr. Ortiz appealed the Board’s decision to the Veter-
ans Court. The court reviewed the evidence of record and
concluded that the Board’s decision to maintain a 10%
rating was not clearly erroneous. With respect to the
TDIU claim, the court held that it lacked jurisdiction to
consider Mr. Ortiz’s appeal because that claim had been
remanded to the regional office. Finally, the court held
that the Secretary had complied with the notice require-
ments of the Veterans Claims Assistance Act of 2000
(“VCAA”).
DISCUSSION
This court has limited jurisdiction to consider appeals
from the Veterans Court. We have “exclusive jurisdiction
to review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof [by the
Veterans Court] . . ., and to interpret constitutional and
statutory provisions, to the extent presented and neces-
sary to a decision.” 38 U.S.C. § 7292(c). Except to the
extent that a veteran’s appeal presents a constitutional
issue, we may not review challenges to factual determina-
tions or challenges to the application of a law to the facts
of a particular case. 38 U.S.C. § 7292(d)(2). Nearly all of
Mr. Ortiz’s assertions of error are outside of this court’s
jurisdiction. Accordingly, we do not review the merits of
those claims; as to the only issue over which we have
jurisdiction, we uphold the decision of the Veterans Court
and affirm the judgment of that court.
We lack jurisdiction to consider Mr. Ortiz’s contention
that the evidence of record, including medical reports and
Mr. Ortiz’s social security disability records, required the
Secretary to increase his disability rating. That is a pure
question of fact. We also lack jurisdiction to consider Mr.
Ortiz’s argument that the “benefit of the doubt” rule
ORTIZ v. DVA 4
requires judgment in his favor. Neither the Board nor the
Veterans Court interpreted the statute codifying that
rule, 38 U.S.C. § 5107(b). The “benefit of the doubt” rule
applies only when the evidence in support of and against
the veteran’s claim is approximately balanced; it has no
application to cases such as this one, in which the Board
found that a preponderance of the evidence supports
maintenance of the 10% rating. See Fagan v. Shinseki,
573 F.3d 1282, 1287 (Fed. Cir. 2009) (“[T]he benefit of the
doubt doctrine has no application where the Board deter-
mined that the preponderance of the evidence weights
against the veteran’s claim or when the evidence is not in
equipoise.”) (internal quotation omitted). Mr. Ortiz faults
the Board for failing to articulate the reasons supporting
its decision. The Veterans Court concluded that the
Board’s explanation of its decision was satisfactory, and
we lack jurisdiction to review that determination. Simi-
larly, we lack jurisdiction to consider whether the Secre-
tary provided Mr. Ortiz with the notice required by the
VCAA. See Conway v. Principi, 353 F.3d 1369, 1373 (Fed.
Cir. 2004) (assessing the Board’s compliance with the
notice provisions of the VCAA in a particular case is a
review of the application of law to fact and is therefore
outside of this court’s jurisdiction).
The Veterans Court correctly determined that it
lacked jurisdiction to review Mr. Ortiz’s appeal related to
TDIU benefits. The Veterans Court’s jurisdiction is
limited to reviewing “decisions” made by the Board. 38
U.S.C. § 7252(a). To constitute a reviewable “decision,”
the Board’s order must either grant or deny the veteran’s
request for relief. 38 U.S.C. § 7104(d)(2); Kirkpatrick v.
Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2008). Here,
the Board’s remand order directed the regional office to
consider the merits of Mr. Ortiz’s request for a TDIU
rating. That order did not grant or deny relief to Mr.
5 ORTIZ v. DVA
Ortiz, and it is therefore not a “decision” within the
meaning of the Veterans Court’s jurisdictional statute.
Kirkpatrick, 417 F.3d at 1364. We have jurisdiction to
review the Veterans Court’s decision on that issue, and
we sustain the court’s decision that it lacked jurisdiction
over the TDIU claim, as that decision is plainly correct.
Mr. Ortiz states that he is entitled to disability com-
pensation for post-traumatic stress disorder (“PTSD”) and
a number of other conditions. That issue does not appear
to have been raised before the Board or the Veterans
Court, and we cannot consider it in the first instance.
Finally, Mr. Ortiz suggests that the Veterans Court
and the DVA have acted out of racial animus. He has
pointed to no evidence in support of that argument. His
vague allegations do not rise to the level of a non-frivolous
constitutional issue that would fall within our jurisdic-
tion.
No costs.
AFFIRMED