McDowell v. Dept. Of Veterans Affairs , 447 F. App'x 210 ( 2011 )

NOTE: This order is nonprecedential
United States Court of Appeals
for the FederaI Circuit
RICHARD MCDOWELL,
Claimant-Appellant,
V.
\
ERIC K. SHINSEKI, SECRETA_RY OF VETERANS
AFFAIRS,
Responclent-Appellee.
2011-7171 ``
Appea1 from the United States Court of AppeaIs for
Veterans C1aims in 09-2762, Judge Wi11iam A. M0orman.
ON MOTION
Before BRYsoN, SoHALL, and PROsT, Circui¢ Judges.
PER CUR1AM.
0 R D E R
The Sec1'etary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(i) and to dismiss Richard
McDowe1l’s appeal for lack of jurisdiction McDowe11 has
not filed a response
MCDOWELL V. DVA 2
By way of background McDowell’s left second, third,
and forth toes were amputated as a child. He served on
active duty in the U.S. Navy from November 1965 to May
1966. Since November 2004, McDowell has been receiv-
ing Department of Veterans Affairs’ (DVA) disability
benefits for a left-foot condition based on the agency’s
determination that his preexisting disability was aggra-
vated while in service. He has also been receiving unem-
ployment benefits from the Social Security
./administration (SSA).
In December 1994, McDowell sought entitlement to a
total disability rating based on individual unemployabil-
ity (TDIU) pursuant to 38 C.F.R. § 4.16(b), asserting he
had been out of work for a number of years because of his
left-foot condition. That regulation authorizes entitle-
ment to a total disability rating if the claimant is "unable
to secure and follow substantial gainful occupation by
reason of his service-connected disability.” ``
As suggested by § 4.16(b), the agency submitted
McDowell’s claim to the Director of Compensation and
Pension Service for evaluation of a potential benefits
award outside of the criteria expressly provided for in the
applicable rating schedule for his condition. Along with
his private medical records, the Director received McDow-
ell’s SSA records, and also obtained a VA medical exami-
nation of McDowell.
After review of the evidence of record and VA exam-
iner’s opinion, the Director decided against entitlement to
TDIU on an extraschedular rating basis, a decision which
was af|irmed on appeal by the Board of Veterans’ AEfairs.
The Board stated that the evidence supported the Direc-
tor’s conclusion that while McDowell was not a candidate
to return to a welding occupation, his condition did not
prevent him from finding gainful employment in a more
sedentary type setting.
3 MCDOWELL V. DVA
The Board further concluded that the evidence sup-
ported the Director’s conclusion that McDowell did not
present with an exceptional or unusual disability picture
that would make it impractical to apply the rating sched-
ule criteria, which already contemplates loss of use of the
foot and assigns an appropriate rating.
Finally, the Board noted that while McDowell’s SSA
records indicate he was unemployable, the records also
reflect that his inability to work is due to diabetes melli-
tus, hypertension, and severe obesity rather than indicat-
ing his left-foot condition as the primary cause.
McDowell then sought review by the United States
Court of Appeals for Veterans Claims aided by legal
representation. McDowell’s primary contention was that
the Board relied on insufficient evidence to support its
conclusion that McDowell could perform work that would
produce sufficient income. The court, however, rejected
this argument on the basis that the record contained the
opinion of the Director, a VA medical opinion, and his
SSA records, and that the Board did not clearly error in
reaching its conclusions based on that evidence
Our review of Veterans Court decisions is limited by
statute. See Yotes v. West, 213 F.3d 1372, 1373-74 (Fed.
Cir. 2000). By statute, our jurisdiction over appeals from
the Veterans Court is limited to those appeals that chal-
lenge the validity of a decision of the Veterans Court with
respect to a rule of law or the validity of any statute or
regulation, any interpretation thereof, or that raise any
constitutional controversies See 38 U.S.C. § 7292. We do
not have jurisdiction to hear appeals challenging deter-
minations or the application of law to the facts of a par-
ticular case, unless there is a constitutional issue present.
See 38 U.S.C. § 7292(d)(2).
McDowell seeks review of the Court of Appeals for
Veterans Claims’ decision. In his informal brief, however,
MCDOWELL V. DVA 4
McDowell indicates that his appeal does not seek to
challenge a constitutional issue, the validity or interpre-
tation of a statute or regulation, and the only issue that
McDowell indicates the court below failed to address
pertain his required pain medication and use of a cane to
waLk, which go to the facts of his case rather than a legal
1ssue.
Although pro se petitioners "are not required to file
legally impeccable submission to proceed on appeal,"
Hilario u. Secretary, Dep’t of Veterans Affoirs. 937 F.2d
586, 589 (Fed. Cir. 1991), McDowell must demonstrate
that this court has jurisdiction over his case, and he has
not made such a showing. The court therefore grants the
Secretary’s motions and dismisses this appeal.
Accordingly,
IT ls 0RDERED THAT: '
(1) The Secretary’s motions are granted The appeal
is dismissed
(2) Each side shall bear its own costs.
FoR THE COUaT
l 4 /s/ J an Horbaly
Date J an Horbaly
Clerk
§
§§
_ FlLED
sr or APPEALs ron
cc: Richard McDowell FEDERAL clRCUlT
Joshua A. Mandlebaum, Esq.
s19
Issued As A Mandate: NUV l 4 2011
NUV 1 4 2011
.|AN |'l9RBAl.Y
CLERK