Fahie v. Wilkie

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
REALDALIST A. FAHIE,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2058
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-3916, Judge Amanda L. Mere-
dith.
______________________
Decided: November 6, 2019
______________________
REALDALIST A. FAHIE, Washington, DC, 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.; Y. KEN LEE, DEREK SCADDEN, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 FAHIE v. WILKIE
______________________
Before DYK, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Realdalist Fahie appeals the judgment of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying his claim for increased disability compen-
sation. We dismiss for lack of jurisdiction.
BACKGROUND
Mr. Fahie served on active duty with the United States
Navy from January 1976 to November 1977. In July 1997,
a Veterans Administration (“VA”) regional office granted
him entitlement to a 10 percent disability rating for his
right-hand disability and lacerations of the dorsum of his
right hand with tender scars (“scar disability”), effective
August 4, 1995. Since then, Mr. Fahie has unsuccessfully
sought increased ratings and an earlier effective date.
Most recently, in June 2012, Mr. Fahie sought an in-
creased rating for his right-hand and scar disabilities and
total disability based on individual unemployability
(“TDIU”). In April 2014, the VA regional office continued
granting Mr. Fahie a 10 percent disability rating for his
right-hand and scar disabilities and denied his request for
TDIU. Mr. Fahie filed a Notice of Disagreement with the
Board, asserting that he was entitled to a higher disability
rating, TDIU, and an earlier effective date. The VA re-
gional office notified Mr. Fahie that it could not accept a
claim for an earlier effective date on a final regional office
decision affirmed by the Veterans Court, and the Board de-
nied Mr. Fahie’s claims for higher disability rating and
TDIU. In a February 2018 memorandum decision, the Vet-
erans Court held that it lacked jurisdiction to address Mr.
Fahie’s claim for earlier effective dates because it was not
properly before the Board, affirmed the Board’s decision as
to the scar disability, vacated the Board’s decision as to the
FAHIE v. WILKIE 3
right-hand disability and TDIU, and remanded to the
Board to provide an adequate statement of the reasons or
bases for its underlying credibility determinations.
On July 19, 2018, the Board issued its determination
denying Mr. Fahie entitlement to an increased disability
rating for his right-hand disability and TDIU. Mr. Fahie
again appealed to the Veterans Court, arguing that the
Board erred by (1) denying an increased disability rating
for his right-hand and scar disability, (2) denying TDIU,
and (3) denying an earlier effective date. The Veterans
Court again held that it had no jurisdiction to review Mr.
Fahie’s claims for an earlier effective date or increased dis-
ability rating for his scar disability because the Board’s de-
cision on appeal did not address those issues and affirmed
the Board’s denial of increased disability rating and TDIU.
Mr. Fahie appeals to this court.
DISCUSSION
This court’s authority to review decisions of the Vet-
eran’s Court is limited. We have jurisdiction to “decide all
relevant questions of law, including interpreting constitu-
tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
However, unless an appeal “presents a constitutional is-
sue,” this court “may not review (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.” Id. at § 7292(d)(2).
Under this standard, we lack jurisdiction over Mr.
Fahie’s appeal. The Veterans Court provided a detailed ex-
planation of the legal basis for its decision.
First, the Veterans Court held that it had no jurisdic-
tion to address Mr. Fahie’s claims for earlier effective dates
and increased disability rating for his scar disability be-
cause the Board decision being appealed did not address
those issues. See 38 U.S.C. § 7252(a); Ledford v. West, 136
F.3d 776, 779 (Fed. Cir. 1998). Second, the Veterans Court
held that the Board correctly found that Mr. Fahie was not
4 FAHIE v. WILKIE
entitled to an increased disability rating for his right-hand
disability because a 10 percent disability rating was the
maximum rating allowed under diagnostic code (“DC”)
5215, 1 and that Mr. Fahie was not entitled to an ex-
traschedular rating because the evidence before the VA did
not present an “exceptional disability picture that the
available schedular evaluations for that service-connected
disability are inadequate” as required under Thun v.
Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom. Thun v.
Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Finally, the Vet-
erans Court found that the Board properly considered evi-
dence of Mr. Fahie’s eligibility for TDIU and properly
discounted Mr. Fahie’s evidence reflecting complete func-
tional loss and unemployability. We do not discern any le-
gal error in the Veterans Court’s decision. See 38 U.S.C.
§ 7261(a)(4).
Mr. Fahie’s “due process” arguments boil down to as-
sertions that the Veterans Court improperly weighed the
evidence for his claim. Absent a constitutional issue, we
lack jurisdiction to review the Veterans Court’s factual
findings. 38 U.S.C. § 7292(d)(2)(A). Mr. Fahie’s “charac-
terization of [this appeal] as constitutional in nature does
not confer upon us jurisdiction that we otherwise lack.”
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Because Mr. Fahie’s appeal does not raise any issues
within our jurisdiction, it must be dismissed.
DISMISSED
COSTS
No Costs.
1 DC 5215 applies to limitation of motion of a wrist
that manifests as either “[d]orsiflexion [of] less than 15[ de-
grees]” or “[p]almar flexion limited in line with forearm.”
38 C.F.R. § 4.71a, DC 5215.