Johnson v. McDonald ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES M. JOHNSON,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7066
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2423, Judge Alan G. Lance, Sr.
______________________
Decided: December 18, 2014
______________________
KENNETH M. CARPENTER, Carpenter Chartered, of To-
peka, Kansas, argued for the claimant-appellant. On the
brief was JOHN F. CAMERON, of Montgomery, Alabama.
ELIZABETH SPECK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were STUART F. DELERY,
2 JOHNSON v. MCDONALD
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
Of counsel on the brief were Y. KEN LEE, Deputy Assis-
tant General Counsel, and MARTIE ADELMAN, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC. Of counsel was LARA EILHARDT, Attorney.
______________________
Before DYK, REYNA, and HUGHES, Circuit Judges.
DYK, Circuit Judge.
Claimant James M. Johnson, a veteran, appeals from
a United States Court of Appeals for Veterans Claims
(“Veterans Court”) decision affirming a 2012 Board of
Veterans’ Appeals (“Board”) decision. The Board denied
him special monthly compensation (“SMC”).
Johnson argues that the Veterans Court committed
legal error when it affirmed the Board’s denial of SMC
because the Board failed to assess whether any of John-
son’s disabilities, standing alone, rendered him totally
disabled. Failure to do this, Johnson alleges, was legal
error in light of Buie v. Shinseki, 24 Vet. App. 242 (2011).
In fact, the Board determined that none of the disabilities,
standing alone, rendered Johnson totally disabled based
upon individual unemployability (“TDIU”). The Board
found that, “[a]lthough the Veteran[] . . . argues that any
one of [his] disabilities, independently, meets the criteria
for a TDIU, the Board does not agree.” J.A. 240. This
finding of fact was not set aside by the Veterans Court. In
light of the Board’s express factual finding that no disabil-
ity, standing alone, satisfies TDIU, there is no legal issue
for us to review. We lack jurisdiction to review that
factual finding, 38 U.S.C. § 7292(d)(2), and the failure of
the Veterans Court to set aside that finding does not raise
a legal issue.
DISMISSED
JOHNSON v. MCDONALD 3
COSTS
No costs.