Case: 23-1571 Document: 18 Page: 1 Filed: 12/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARVIN H. JOHNSON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1571
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-1797, Judge Joseph L. Toth.
______________________
Decided: December 7, 2023
______________________
MARVIN H. JOHNSON, Glen Burnie, MD, pro se.
ANNE DELMARE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, BRIAN D. GRIFFIN, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 23-1571 Document: 18 Page: 2 Filed: 12/07/2023
2 JOHNSON v. MCDONOUGH
Before MOORE, Chief Judge, HUGHES and STARK, Circuit
Judges.
PER CURIAM.
Marvin H. Johnson appeals the Court of Appeals for
Veterans Claims’ (“Veterans Court”) dismissal of his ap-
peal for lack of jurisdiction. Because the Veterans Court
correctly determined it lacked jurisdiction over claims not
presented to the regional office or the Board, we affirm.
I
Mr. Johnson served in the United States Army for pe-
riods between June 1985 and April 1999. He subsequently
sought disability benefits for various service-connected in-
juries in at least 1999, 2008, and 2019. As of 2022, Mr.
Johnson had received disability benefits for multiple ser-
vice-connected injuries. The effective dates of his compen-
sation for these disabilities were 2008 or 2009.
In 2019, the Department of Veterans Affairs (“VA”) de-
nied Mr. Johnson’s requests for (i) a total disability rating
based on individual unemployability (“TDIU”) and (ii) an
earlier entitlement date with respect to his service-con-
nected injury in his knee. Mr. Johnson, then represented
by counsel, petitioned the Board of Veterans’ Appeals
(“Board”), and filed a Notice of Disagreement with respect
to only the TDIU decision. The Board denied his petition,
agreeing with the VA that Mr. Johnson was not entitled to
a TDIU rating, as “[t]he evidence of record is not sufficient
to show that the Veteran’s service-connected disabilities,
individually or in aggregate, prevent the Veteran from
Case: 23-1571 Document: 18 Page: 3 Filed: 12/07/2023
JOHNSON v. MCDONOUGH 3
finding and following substantially gainful employment.”
S. Appx. 4. 1
Mr. Johnson, by this point acting pro se, then appealed
the Board’s decision to the Veterans Court. In doing so, he
made clear to the Veterans Court that he was not appeal-
ing the denial of TDIU but, rather, was challenging his at-
torney’s decision to file a TDIU claim. In that regard, he
asked the Veterans Court to “‘change’ the issue decided by
the Board to entitlement to an earlier effective date for the
disability compensation he’s receiving for various condi-
tions.” S. Appx. 1 (quoting Plaintiff’s Informal Br. to Vet-
erans Court at 2 (Jun. 7, 2022)). Mr. Johnson further
“allege[d] clear and unmistakable error (CUE) in [prior]
rating decisions” as well as attorney misconduct before the
Board. Id.
The Veterans Court dismissed Mr. Johnson’s appeal for
lack of jurisdiction. It determined that the appeal raised
issues not presented to the Board, namely, alleged errors
in the final decisions entered in 1999 and 2001 relating to
effective dates for disability compensation and CUE in rat-
ing decisions, as well as new claims in the 2019 final deci-
sion not noted in Mr. Johnson’s Board appeal. The court
observed that Mr. Johnson had filed a Notice of Disagree-
ment directed only to the denial of his claim for TDIU,
which was an issue actually decided by the Board, but Mr.
Johnson did not want to appeal that denial. S. Appx. 2.
Thus, because Mr. Johnson “[did] not allege any error pres-
ently within the [Veterans] Court’s authority to address,
the appeal must be dismissed.” S. Appx. 1.
Mr. Johnson timely appealed. We have jurisdiction un-
der
38 U.S.C. § 7292(a), although it is limited. In
1 “S. Appx.” refers to the supplemental appendix at-
tached to Respondent-Appellee’s Informal Response Brief
(ECF No. 10).
Case: 23-1571 Document: 18 Page: 4 Filed: 12/07/2023
4 JOHNSON v. MCDONOUGH
particular, we may review “the validity of a decision of the
[Veterans] Court on a rule of law or of any statute or regu-
lation . . . or any interpretation thereof (other than a deter-
mination as to a factual matter) that was relied on . . . in
making the decision.”
Id. “Except to the extent that an
appeal . . . presents a constitutional issue, [we] may not re-
view (A) a challenge to a factual determination, or (B) a
challenge to a law or regulation as applied to the facts of a
particular case.”
38 U.S.C. § 7292(d)(2); see also Wanless
v. Shinseki,
618 F.3d 1333, 1336 (Fed. Cir. 2010). The
Court reviews legal determinations de novo. See Buchanan
v. Nicholson,
451 F.3d 1331, 1334 (Fed. Cir. 2006).
II
On appeal, Mr. Johnson presents the same arguments
to us that he made to the Veterans Court. Having consid-
ered each of his issues, we agree with the Veterans Court
that it lacked jurisdiction over his claims.
The Veterans Court’s jurisdiction is “premised on and
defined by the Board’s decision concerning the matter be-
ing appealed.” Skaar v. McDonough,
48 F.4th 1323, 1333
(Fed. Cir. 2022). “[A] veteran must first present a request
for a benefit to the Board, then receive a decision on that
request, in order to vest jurisdiction in the Veterans Court
to consider the veteran’s request and arguments in support
thereof.” Maggitt v. West,
202 F.3d 1370, 1376 (Fed. Cir.
2000). The Veterans Court is not entitled to make findings
of fact “in the first instance,” but instead reviews actions in
which a finding of material fact has already been made.
Tadlock v. McDonough,
5 F.4th 1327, 1334 (Fed. Cir. 2021);
see also
38 U.S.C. § 7261(a)(4). Additionally,
38 U.S.C.
§ 7252 dictates that “[r]eview in the [Veterans] Court shall
be on the record of proceedings before the Secretary and
the Board.” Without a record, there is nothing for the Vet-
erans Court to review.
Mr. Johnson asks us to determine his prior proceedings
before the Board were marred by CUE and that he is
Case: 23-1571 Document: 18 Page: 5 Filed: 12/07/2023
JOHNSON v. MCDONOUGH 5
entitled to earlier effective dates for his service-connected
disabilities. Because Mr. Johnson did not present either of
these claims to the Board prior to taking them to the Vet-
erans Court, there was no record and nothing for the Vet-
erans Court to review. As the Veterans Court recognized,
“Mr. Johnson has clearly indicated that he does not wish to
appeal the only issue decided by the Board in its December
2019 decision: entitlement to a TDIU rating.” S. Appx. 2.
Accordingly, the Veterans Court lacked jurisdiction and
properly dismissed the appeal.
Mr. Johnson points to Pirkl v. Shinseki for the proposi-
tion that “[u]nder 38 U.S.C. § 5109A(b), a finding of CUE
may, under some circumstances, require a later decision to
be revisited.”
718 F.3d 1379, 1384-85 (Fed. Cir. 2013). Mr.
Johnson is correct. But the plaintiff in Pirkl had presented
to the Board all the CUE issues he later pressed in the Vet-
erans Court, which is a necessary prerequisite to obtaining
Veterans Court review of a CUE claim.
Id. at 1380-81; see
also 38 U.S.C. § 5109A(e) (providing that CUE claim “shall
be submitted to the Secretary and shall be decided in the
same manner as any other claim.”);
38 U.S.C. § 5101 (ex-
plaining how claims are submitted to Secretary). Mr. John-
son did not do the same. 2 Therefore, again, the Veterans
Court lacked jurisdiction to hear Mr. Johnson’s appeal.
III
We have considered Mr. Johnson’s other arguments
and find them unpersuasive. For the reasons stated, we
2 As the Veterans Court stated, Mr. Johnson may
still be able to collaterally attack the earlier decisions on
the basis of CUE, but a CUE motion must first be filed with
the regional office for initial adjudication before it can be
litigated before the Board or at the Veterans Court. See S.
Appx. 3.
Case: 23-1571 Document: 18 Page: 6 Filed: 12/07/2023
6 JOHNSON v. MCDONOUGH
affirm the Veterans Court’s dismissal of Mr. Johnson’s ap-
peal.
AFFIRMED
COSTS
No costs.
