Case: 20-1097 Document: 26 Page: 1 Filed: 05/08/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID A. SILVIA,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1097
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-2625, Judge Joseph L. Toth.
______________________
Decided: May 8, 2020
______________________
DAVID A. SILVIA, Woonsocket, RI, pro se.
KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR.; CHRISTOPHER O. ADELOYE, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Case: 20-1097 Document: 26 Page: 2 Filed: 05/08/2020
2 SILVIA v. WILKIE
Before CHEN, HUGHES, and STOLL, Circuit Judges.
PER CURIAM.
David A. Silvia appeals a decision from the U.S. Court
of Appeals for Veterans Claims (Veterans Court), affirming
the decision of the Board of Veterans’ Appeals (Board)
denying Mr. Silvia entitlement to a total disability evalua-
tion based on individual unemployability (TDIU) on an ex-
traschedular basis due to loss of vision in his left eye as a
result of cataract surgery. We lack jurisdiction over part of
Mr. Silvia’s appeal because neither the Board nor the Vet-
erans Court addressed the merits of Mr. Silvia’s Vocational
Rehabilitation and Employment (VRE) claim, which re-
mains pending before the agency of original jurisdiction.
Additionally, even though Mr. Silvia could no longer work
in his preferred position, we agree with the Veterans Court
that, under the law, Mr. Silvia needed to prove he was un-
able to secure substantially gainful employment to be enti-
tled to TDIU compensation on an extraschedular basis.
Thus, we dismiss-in-part and affirm-in-part .
BACKGROUND
Mr. Silvia served in the U.S. Coast Guard from 1973 to
1986. In January 1998, Mr. Silvia underwent cataract sur-
gery at a Department of Veterans Affairs (VA) medical cen-
ter that resulted in a detached retina in his left eye. About
ten years after his surgery, Mr. Silvia filed for compensa-
tion due to loss of vision in his left eye as a result of the
detached retina, which the VA regional office (RO) granted.
Mr. Silvia subsequently sought entitlement to TDIU
based on his detached retina condition. For a veteran to be
eligible for a TDIU rating, the veteran’s unemployability
must be due to either a single service-connected disability
rating of at least 60% or multiple disabilities yielding a
combined rating of 70% or more. These percentages are set
aside in cases for extraschedular consideration where the
Case: 20-1097 Document: 26 Page: 3 Filed: 05/08/2020
SILVIA v. WILKIE 3
veteran has been rendered unemployable. The RO denied
Mr. Silvia’s TDIU claim on an extraschedular basis be-
cause the record evidence did not show he was unemploya-
ble due to the detached retina.
Mr. Silvia timely appealed the RO’s decision to the
Board. In July 2017, the Board denied Mr. Silvia’s TDIU
claim, finding that although his condition prevented him
from working in his preferred role as a commercial truck
driver, there was no evidence that his detached retina pre-
vented him from engaging in sedentary work or pursuing
substantially gainful employment. Mr. Silvia appealed to
the Veterans Court. On September 19, 2019, the Veterans
Court affirmed the decision of the Board. Mr. Silvia then
timely appealed to this court.
DISCUSSION
Our jurisdiction to review a decision of the Veterans
Court is limited by statute. Gazelle v. Shulkin,
868 F.3d
1006, 1009 (Fed. Cir. 2017). We have “exclusive jurisdic-
tion to review and decide any challenge to the validity of
any statute or regulation or any interpretation thereof
brought under this section, and to interpret constitutional
and statutory provisions, to the extent presented and nec-
essary to a decision.”
38 U.S.C. § 7292(c). Our jurisdiction
does not extend to challenges either to factual determina-
tions or to the application of the law to the facts of a partic-
ular case.
38 U.S.C. § 7292(d)(2); see Bozeman v.
McDonald,
814 F.3d 1354, 1357 (Fed. Cir. 2016) (explain-
ing that the Veterans Court’s “application of law to fact” is
“a question over which we lack jurisdiction”). We interpret
the pleadings of a pro se plaintiff liberally. See Durr v. Ni-
cholson,
400 F.3d 1375, 2380 (Fed. Cir. 2005).
Mr. Silvia argues that the VA should have but failed to
provide him with appropriate rehabilitation and employ-
ment training, given his detached retina. Appellant’s Br.
at 1. Mr. Silvia would be provided with this type of assis-
tance under the VRE program. See generally 38 U.S.C.
Case: 20-1097 Document: 26 Page: 4 Filed: 05/08/2020
4 SILVIA v. WILKIE
§ 3100;
38 C.F.R. § 21.70. The Board referred Mr. Silvia’s
VRE claim to the agency of original jurisdiction (AOJ), be-
cause the AOJ had not previously rendered a decision as to
the VRE claim and therefore the matter was not ready for
Board review. S.A. 28; see also
38 C.F.R. § 19.9(b) (“The
Board shall refer to the [AOJ] for appropriate consideration
and handling in the first instance all claims reasonably
raised by the record that have not been initially adjudi-
cated by the [AOJ], except for claims over which the Board
has original jurisdiction.”). Because neither the Board nor
Veterans Court addressed the VRE issue, which we under-
stand remains pending before the AOJ, we lack jurisdiction
over the matter. See Jackson v. Wilkie, 732 F. App’x 872,
875 (Fed. Cir. 2018) (“We lack jurisdiction over [the vet-
eran’s] VRE claims that were not before the Veterans Court
or decided by the Board.”).
Mr. Silvia also argues that there was evidence in the
record that the Board never considered. Appellant’s Br. at
1. But Mr. Silvia does not specify which evidence the Board
failed to consider. Although this court generally interprets
the arguments of a pro se appellant liberally, this particu-
lar argument is simply too undeveloped for us to consider.
See Harlston v. Shinseki, 455 F. App’x 992, 994 (Fed. Cir.
2012); see also Henke v. United States,
60 F.3d 795, 799
(Fed. Cir. 1995). Furthermore, we “presume that a fact
finder reviews all the evidence presented unless he explic-
itly expresses otherwise.” Medtronic Inc. v. Daig Corp.,
789
F.2d 903, 906 (Fed. Cir. 1986).
To the extent Mr. Silvia is arguing that the Board in-
appropriately credited or weighed the evidence, those are
factual issues over which this court lacks jurisdiction. King
v. Shinseki,
700 F.3d 1339, 1346 (Fed. Cir. 2012) (“The
evaluation and weighing of evidence and the drawing of ap-
propriate inferences from it are factual determinations
committed to the discretion of the fact-finder.”) (internal
quotations and citation omitted).
Case: 20-1097 Document: 26 Page: 5 Filed: 05/08/2020
SILVIA v. WILKIE 5
To the extent Mr. Silvia is claiming the Veterans Court
misinterpreted
38 C.F.R. § 4.16(b), we disagree. Under
that regulation, a claim for TDIU compensation on an ex-
traschedular basis requires Mr. Silvia to demonstrate that
his injury precludes him from securing substantially gain-
ful employment.
38 C.F.R. § 4.16(b); Cushman v. Shinseki,
576 F.3d 1290, 1301 (Fed. Cir. 2009). Whether the veteran
can work in his or her preferred or current position is not
the standard. Smith v. Shinseki,
647 F.3d 1380, 1382-83
(Fed. Cir. 2011) (affirming a decision of the Board noting
that although the veteran could no longer be employed as
a laborer, he was still capable of substantially gainful em-
ployment that involved sedentary employment or light
manual labor). Additionally, “[t]he DVA may find that a
veteran is physically capable of substantially gainful em-
ployment even if he is not currently engaged in such em-
ployment.” Cushman,
576 F.3d at 1302. Therefore, the
Veterans Court did not err in affirming the Board’s deci-
sion, even though Mr. Silvia is unable to work as a truck
driver.
CONCLUSION
We have considered Mr. Silvia’s remaining arguments
and find them unpersuasive. Accordingly, the appeal from
the final judgment of the Veterans Court is
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.
