Griffin v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
JOHNNY B. GRIFFIN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS
Respondent-Appellee.
__________________________
2011-7111
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-2047, Judge Alan G.
Lance, Sr.
__________________________
Decided: October 12, 2011
___________________________
JOHNNY B. GRIFFIN, of Milwaukee, Wisconsin, pro se.
KIMBERLY I. KENNEDY, Trial Attorney, Civil Division,
United States Department of Justice, of Washington, DC,
for respondent-appellee. On the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and FRANKLIN E. WHITE, JR., Assistant Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
GRIFFIN v. DVA 2
Assistant General Counsel, and THOMAS J. HERNANDEZ,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, LINN, and DYK, Circuit
Judges.
PER CURIAM.
Johnny B. Griffin (“Griffin”) appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”), Griffin v. Shinseki, No. 09-2047 (Vet.
App. Oct. 8, 2010). The Veterans Court affirmed a 2009
decision of the Board of Veterans’ Appeals (“Board”)
denying his claims for entitlement to (1) a service connec-
tion for temporomandibular joint (“TMJ”) disorder; (2)
special monthly compensation based on the need for aid
and attendance in connection with certain service-
connected claims involving total disability; (3) an effective
date earlier than June 19, 1995, for the award of a total
disability based upon individual unemployability
(“TDIU”); and (4) an increased rating for residuals of a
mandibular fracture with atypical facial pain. We dis-
miss.
BACKGROUND
The claims raised by Griffin in this appeal were first
addressed by the Board in 2005. At that time, the Board
remanded and reopened Griffin’s claims of entitlement to
service connection for TMJ and special monthly compen-
sation to the Department of Veterans Affairs Regional
Office (“RO”), but denied his claims of entitlement to an
effective date earlier than June 19, 1995, for TDIU and an
increased rating for residuals of a mandibular fracture
with atypical facial pain. Griffin appealed to the Veterans
Court the two claims which were denied by the Board.
3 GRIFFIN v. DVA
The parties then filed a joint motion to vacate the Board’s
decision on the ground that the Board had failed to pro-
vide adequate reasons and bases for its denial of Griffin’s
claims. The Veterans Court granted the motion and
remanded to the Board the claims of entitlement to ser-
vice connection for TMJ and special monthly compensa-
tion.
Following an RO decision with respect to the two
claims remanded to the Board, the Board considered all
four claims together in a 2009 decision. With respect to
Griffin’s claims of entitlement to service connection for
TMJ and special monthly compensation, the Board found
that Griffin had failed to report for scheduled medical
examinations after the claims were reopened. “[A] re-
opened claim for a benefit which was previously disal-
lowed . . . shall be denied” where a veteran, “without good
cause, fails to report for [an] examination” necessary to
determine entitlement to a benefit. 38 CFR § 3.655.
Because the Board found that Griffin was unable to show
“good cause” for his failure to report for the examinations,
the Board denied Griffin’s claims of entitlement to service
connection for TMJ and special monthly compensation.
After reviewing the evidence of record, the Board also
found that weight of the evidence was against finding that
Griffin was unable to obtain and retain employment due
to service-connected disabilities prior to June 19, 1995. 1
As a result, Griffin’s claim for an earlier effective date for
TDIU was denied.
1 TDIU may be awarded if the veteran “is, in the
judgment of the rating agency, unable to secure or follow
a substantially gainful occupation as a result of service-
connected disabilities.” 38 C.F.R. § 4.16(a); see also 38
C.F.R. § 4.16(b).
GRIFFIN v. DVA 4
The Board in 2009 also denied Griffin’s claim for an
increased rating for residuals of a mandibular fracture
with atypical facial pain. Griffin was awarded a 30 per-
cent disability rating effective June 19, 1995, but argued
that his mandibular fracture was more disabling than
reflected by the 30 percent rating. After reviewing the
evidence of record, the Board found that the evidence
weighed against entitlement to a disability rating greater
than 30 percent.
Griffin appealed the 2009 Board decision to the Vet-
erans Court. Griffin’s briefing to the Veterans Court
presented arguments pertaining only to the claim for an
earlier effective date for TDIU. Because Griffin failed to
present any argument concerning the remaining claims,
the Veterans Court deemed them abandoned. Addressing
Griffin’s claim for an earlier effective date, the Veterans
Court noted that “[a] Board determination as to the
proper effective date is a finding of fact that will not be
overturned unless the Court finds the determination to be
clearly erroneous.” Griffin, No. 09-2047, slip op. at 2–3.
“Because the Board provided adequate reasons or bases
for the determination that an earlier effective date was
not warranted,” the Veterans Court affirmed the Board
decision. Id. at 3. This appeal followed.
DISCUSSION
Our jurisdiction to review the decisions of the Veter-
ans Court is limited by statute. See Forshey v. Principi,
284 F.3d 1335, 1338 (Fed. Cir. 2002). We may review the
validity of a Veterans Court's decision on “a rule of law or
of any statute or regulation” or “any interpretation
thereof” that the Veterans Court relied on in making its
decision. 38 U.S.C. § 7292(a). We may not, however,
review “a challenge to a factual determination” or “a
challenge to a law or regulation as applied to the facts of a
5 GRIFFIN v. DVA
particular case,” unless the challenge presents a constitu-
tional issue. 38 U.S.C. § 7292(d)(2).
Griffin argues that the Veterans Court failed to con-
sider “all [of his] service-connected disabilities” when
evaluating his claim for an earlier effective date for TDIU.
In other words, Griffin argues that the Veterans Court
incorrectly applied the regulations governing the deter-
mination and assignment of an effective date to the facts
of his case. We are statutorily prohibited from reviewing
the Veterans Court’s application of law or regulation to
the facts of a particular case. See 38 U.S.C. § 7292(d)(2).
Griffin also argues that the Veterans Court erred
when it deemed abandoned his claims of entitlement to an
increased rating for residuals of a mandibular fracture
with atypical facial pain, service connection for TMJ, and
special monthly compensation. This court has held that
38 U.S.C. § 7292 is a jurisdictional bar to the considera-
tion of a legal issue or argument unless it was properly
raised by a party before the Veterans Court or addressed
by the court itself. Belcher v. West, 214 F.3d 1335, 1337
(Fed. Cir. 2000); Smith v. West, 214 F.3d 1331, 1334 (Fed.
Cir. 2000); Linville v. West, 165 F.3d 1382, 1384 (Fed. Cir.
1999). Griffin’s claims of entitlement to an increased
rating for residuals of a mandibular fracture with atypical
facial pain, service connection for TMJ, and special
monthly compensation were neither raised before the
Veterans Court nor addressed by the court itself.
Because this court is without jurisdiction, we dismiss.
DISMISSED
COSTS
No costs.