Melver v. Wilkie

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MATTHEW A. MELVER,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1914
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-6523, Judge Joseph L. Toth.
______________________
Decided: October 3, 2019
______________________
MATTHEW A. MELVER, Hollywood, FL, pro se.
ERIC LAUFGRABEN, 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.; MEGHAN ALPHONSO, Y. KEN LEE, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
2 MELVER v. WILKIE
Before LOURIE, PLAGER, and TARANTO, Circuit Judges.
PER CURIAM.
Matthew Melver, a recipient of veterans’ disability ben-
efits for his service-connected right hip disability due to
chronic hip pain, applied to the Department of Veterans
Affairs (VA) for an increase in his disability rating. The
VA’s Board of Veterans’ Appeals denied his claim, deter-
mining that the criteria for an increased rating were not
met. The Court of Appeals for Veterans Claims (Veterans
Court) affirmed. In his appeal to this court, Mr. Melver has
identified no legal error committed by the Veterans Court.
He has challenged only the facts or the application of law
to the facts. With no constitutional claim asserted, we lack
jurisdiction to review such a challenge. Therefore, we must
dismiss the appeal for lack of jurisdiction.
I
Mr. Melver served on active duty in the Army from July
2005 to March 2007. In 2009, the relevant Regional Office
of the Department assigned him a 10% disability rating for
a service-connected right hip disability.
In 2012, Mr. Melver filed a claim for an increased dis-
ability rating of 60% for hip ankylosis, a separate disability
rating of 40% for chronic right hip pain, and a rating of to-
tal disability based on individual unemployability (TDIU).
During a 2013 VA medical examination, Mr. Melver com-
plained of right hip pain and flare-ups that affected the
function of his right hip and thigh, but his flexion measure-
ments indicated that he retained normal motion of his hip.
The examiner noted that his “right hip condition pre-
clude[d] him from physical work” but that “he [wa]s apply-
ing for and [was] capable of sedentary employment . . . .”
J.A. 272. Later that year, the Regional Office denied his
claim, finding that the 10% disability rating was consistent
with his painful hip motion and flexion measurements and
MELVER v. WILKIE 3
that he did not qualify for TDIU. Mr. Melver appealed, and
in 2018, the Board remanded the case for further develop-
ment of the record.
In a new VA medical examination, conducted in May
2018, Mr. Melver again reported right hip pain and flare-
ups. The examiner diagnosed Mr. Melver with osteoarthri-
tis of the right hip and right hip impingement syndrome
but found no evidence of right hip ankylosis. The Regional
Office again denied both the claim for new or increased rat-
ings for his right hip disability and the claim for a TDIU
rating.
Mr. Melver appealed to the Board. On review of his
reports of right hip pain, the Board found that painful mo-
tion was already contemplated in the evaluation that re-
sulted in his existing 10% disability rating. The Board
separately determined that “[e]ven considering [his] sub-
jective complaints of pain and other symptoms,” his flexion
measurements did not warrant a rating increase. J.A. 107.
As a result, the Board affirmed.
Before the Veterans Court, Mr. Melver “argue[d] that
the Board overlooked evidence of chronic pain” when it de-
nied the rating increase. Melver v. Wilkie, No. 18-6523,
2019 WL 1511224, at *1 (Vet. App. Apr. 8, 2019). The Vet-
erans Court, however, determined that the Board “took ac-
count of the veteran’s reports of pain as part of [its]
analysis” and that Mr. Melver failed to show “that the
Board clearly erred in its weighing of this evidence.” Id.,
at *2. The Veterans Court affirmed the portion of the
Board’s decision that denied an increased or new right hip
rating, and it vacated the portion denying a TDIU rating
and remanded for further consideration of that issue. Id.,
at *1. Mr. Melver appeals only the Veterans Court’s deci-
sion denying the higher right hip rating.
4 MELVER v. WILKIE
II
This court has limited subject matter jurisdiction over
appeals from the Veterans Court. See 38 U.S.C. § 7292.
We have jurisdiction to review “the validity of a decision of
the [Veterans] Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on by
the [Veterans] Court in making the decision.” Id.,
§ 7292(a). We do not have jurisdiction to “review findings
of fact or application of law to the facts, except to the extent
that an appeal presents a constitutional issue.” Cayat v.
Nicholson, 429 F.3d 1331, 1333 (Fed. Cir. 2005) (citing 38
U.S.C. § 7292(d)(2)).
In this case, Mr. Melver challenges the Veterans
Court’s determination that the Board did not commit re-
versible error in its record assessment, and its application
of legal standards, when making the disability rating de-
terminations at issue here. The Veterans Court reviewed
the Board’s application of the relevant regulations and law
to the evidence of record and found that “he ha[d] not
shown that the Board clearly erred in its weighing of th[e]
evidence.” Melver, 2019 WL 1511224, at *2. We may not
review this challenge. An allegation that the evidence of
record requires an increase in disability rating is either a
factual challenge or a challenge to the “application of law
to fact,” both of which are beyond our jurisdiction where, as
in this case, “there is no constitutional issue presented.”
Middleton v. Shinseki, 727 F.3d 1172, 1177–78 (Fed. Cir.
2013); Ortiz v. Shinseki, 427 F. App’x 889, 891 (Fed. Cir.
2011) (holding that the veteran’s “contention that the evi-
dence of record . . . required the Secretary to increase his
disability rating” was “a pure question of fact”).
Mr. Melver also asserts that the Veterans Court’s deci-
sion involves the validity or interpretation of a statute be-
cause “the [Board] and [Veterans Court] both failed to
adequately consider, rule[,] and rate a valid claim for
MELVER v. WILKIE 5
chronic . . . pain . . . . in violation of current [Board] stat-
utes (newly) allowing the award of pain as ratable, directly-
relatable to existing service-connected ratings . . . .” At-
tachment to Appellant’s Brief at 1. Although Mr. Melver
does not identify any specific case, statute, or regulation,
we, like the government, understand him to be referring to
our decision in Saunders v. Wilkie, where we held that
“pain alone, without an accompanying diagnosis of a pre-
sent disease, can qualify as a disability.” 886 F.3d 1356,
1369 (Fed. Cir. 2018). The Veterans Court, however, was
not required to interpret or apply Saunders because it de-
termined that the Board already “took account of [Mr.
Melver’s] reports of pain as part of [its] analysis.” Melver,
2019 WL 1511224, at *2.
Finally, we lack jurisdiction to consider Mr. Melver’s
apparent argument that the Board should have applied the
“benefit of the doubt” rule to weigh the evidence in his fa-
vor. Attachment to Appellant’s Brief at 1 (“As chronic de-
bilitating pain is newly ratable by the VA it is the duty of
the [Board] and [the Veterans Court] to show deference and
in the absence of a clearly written code, statute, or like-
ness[,] side in favor of the veteran.”). Neither the Veterans
Court nor the Board interpreted the statute stating the in-
voked 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.”
Ortiz, 427 F. App’x at 891 (citing Fagan v. Shinseki, 573
F.3d 1282, 1287 (Fed. Cir. 2009)). The Board decided not
to apply the rule here because the “preponderance of the
evidence [was] against assigning a rating in excess of that
already assigned . . . .” J.A. 107. The Veterans Court’s af-
firmance of that application of the rule raises no legal ques-
tion.
III
Because Mr. Melver has not raised any challenge
within our jurisdiction, we dismiss this appeal.
6 MELVER v. WILKIE
The parties shall bear their own costs.
DISMISSED