Davis v. Shulkin

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GILBERT DE WAYNE DAVIS,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1435
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1083, Judge Alan G. Lance Sr.,
Judge Bruce E. Kasold, Judge Margaret C. Bartley.
______________________
Decided: May 12, 2017
______________________
GILBERT DE WAYNE DAVIS, Aurora, CO, pro se.
ANDREW W. LAMB, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., L.
MISHA PREHEIM; CHRISTOPHER O. ADELOYE, BRIAN D.
GRIFFIN, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
2 DAVIS v. SHULKIN
______________________
Before REYNA, LINN, and TARANTO, Circuit Judges.
PER CURIAM.
Mr. Gilbert Davis appeals a decision of the United
States Court of Appeals for Veterans Claims, which
dismissed-in-part and affirmed-in-part a decision by the
Board of Veterans’ Appeals denying Mr. Davis’ request for
special monthly compensation for aid and assistance. Mr.
Davis makes several discernable arguments in his infor-
mal brief. First, it appears Mr. Davis argues that he was
entitled to submit additional evidence supporting his
claim that the Board denied. Second, Mr. Davis appears
to argue that the Board failed to consider all the evidence
before it and deprived him of due process. Because
Mr. Davis has not shown a denial of due process, we
affirm.
BACKGROUND
Mr. Davis served on active duty in the Air Force from
February 1981 to July 1986. At the time of his discharge,
Mr. Davis was rated by the U.S. Department of Veterans
Affairs (“VA”) as thirty percent disabled. By 1996, the VA
rated Mr. Davis sixty percent disabled based on the pes
planus of his left foot, degenerative changes and joint
disease in his knees with genu valgum, and tarsal tunnel
syndrome in his feet. The VA also granted Mr. Davis
total disability based on an individual unemployability
rating.
In 2007, Mr. Davis sought, among other things, enti-
tlement to special monthly compensation (“SMC”). SMC
is available to “[e]xtraordinarily disabled veterans already
receiving a 100% disability rating” and is “over and above
the monthly amount for total disability.” Guillory v.
Shinseki, 603 F.3d 981, 983 (Fed. Cir. 2010); 38 C.F.R.
§ 3.352(a).
DAVIS v. SHULKIN 3
On July 28, 2008, the VA’s Denver Regional Office
denied Mr. Davis’ request for an SMC rating because
“there [was] no evidence [he was] bedridden or that [he
was] so helpless as to require the aid and attendance of
another person to perform the tasks of everyday living.”
Suppl. App. 57–58, 65 (“SA”). The Regional Office relied
on an April 17, 2008 medical exam, during which
Mr. Davis reported that he was able to feed himself, bathe
himself, dress and undress, had no bladder or bowel
incontinence, could attend church, appointments, and go
grocery shopping. The VA maintained Mr. Davis’ service-
connected disability ratings for pes planus, the degenera-
tion changes and joint degeneration in his knees with
genu valgum and tarsal tunnel syndrome, and denied his
other requests for service connection.
In 2009, Mr. Davis appealed the SMC denial. On Au-
gust 24, 2012, the Board denied the appeal.
Mr. Davis appealed the Board’s decision to the Veter-
ans Court. The VA recommended that the Veterans
Court set aside the denial and remand to the Board to
consider treatment records bearing on Mr. Davis’ need for
regular aid and attendance. These treatment records
were generated prior to the Board decision in 2012, but
were added to the claims file after the decision. The
Veterans Court thus determined that the treatment
records were constructively before the Board. The Veter-
ans Court further noted that “[o]n remand, Mr. Davis may
present, and the Board must consider, any additional
evidence and argument in support of the matter remand-
ed.” SA39.
On remand, the Board found that the previously omit-
ted treatment records showed that Mr. Davis “ha[d]
problems or deficits in three or more activities of daily
living” but that “the extent to which his service-connected
disabilities are responsible for these deficits” was unclear.
SA33. The Board concluded that a new medical examina-
4 DAVIS v. SHULKIN
tion was necessary and remanded to the Denver Regional
Office with specific instructions to “afford the Veteran an
aid and attendance examination to determine the current
nature and severity of his service-connected disabilities.”
SA34.
Mr. Davis failed to appear for the new examination.
When the VA contacted him about rescheduling the exam,
Mr. Davis represented that “he is aware, and does not
wish to reschedule the exam” and that he “is working
towards filing a new claim . . . .” SA30. Based on his
failure to appear for examination and his statement that
he would not appear, the Denver Regional Office issued a
Supplemental Statement of the Case in February 2014,
again denying Mr. Davis’ claim for SMC. In making its
determination, the Denver Regional Office considered
private treatment records submitted by Mr. Davis on
February 3, 2014.
Mr. Davis again appealed to the Board. The Board
denied his claim for SMC based on his failure to present
“any reason for his failure to report for the scheduled
examination.” SA12. The Board noted that the VA sent
Mr. Davis a letter in November 2013, advising him that
his claim may be denied if he failed to appear for a new
medical examination and that the Denver Regional Office
had informed Mr. Davis in its February 2014 Supple-
mental Statement of the Case that absent good cause,
“when a claimant fails to report for an examination
scheduled in conjunction with an increased rating claim,
the claim shall be denied.” Id.; see also SA26 (quoting 38
C.F.R. § 3.655).
Mr. Davis appealed the Board’s decision to the Veter-
ans Court. He argued that the Board failed to comply
with the Veterans Court’s remand order, and that the
Board denied him “one review before the Secretary,” thus
depriving him of the “ability to present the best argument
before the Board and the Secretary.” SA3 (internal quota-
DAVIS v. SHULKIN 5
tion marks omitted). The Veterans Court affirmed,
finding that the Board’s decision to require an additional
medical examination was not clearly erroneous, and that
the Board had the authority under governing regulations
to deny a claim for an increased rating if the claimant
misses an examination without good cause. The Veterans
Court further found that Mr. Davis failed to show that
missing a scheduled examination without good cause
constituted a denial of any statutory or due process right.
Mr. Davis appeals. We have jurisdiction under 38
U.S.C. §§ 7292(a), (c).
STANDARD OF REVIEW
Our standard of review in this case is limited. We re-
view de novo legal determinations by the Veterans Court.
Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).
We have jurisdiction over all relevant questions of law,
including interpretations of constitutional and statutory
authority. 38 U.S.C. § 7292(d)(1).
Absent a constitutional question, we do not possess
jurisdiction to review any challenge to a factual determi-
nation or the application of law or regulation to the facts
of a particular case. Guillory, 603 F.3d at 986. Therefore,
we do not have jurisdiction to review whether the evi-
dence presented in a particular case meets the applicable
legal standard. See, e.g., Waltzer v. Nicholson, 447 F.3d
1378, 1380 (Fed. Cir. 2006).
DISCUSSION
Mr. Davis challenges the denial of entitlement to
SMC. Mr. Davis argues that he was deprived of due
process because (1) he “was entitled to submit other
evidence and that the Board had [an] obligation to consid-
er this evidence,” and (2) that he “was entitled to have
[his] claim for benefit based on the entire evidence before
the Secretary [of the VA] at the time of the decision.”
Attach. to Appellant’s Informal Br. 1.
6 DAVIS v. SHULKIN
We find no denial of due process. Procedural due pro-
cess requires notice and fair opportunity to be heard.
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,
313–14 (1950); see Jones v. Flowers, 547 U.S. 220, 226
(2006).
Here, the VA provided notice that failure to attend a
new medical examination would result in a denial of SMC
in the November 2013 letter and in the Denver Regional
Office’s February 2014 Supplemental Statement of the
Case. The Denver Regional Office also provided
Mr. Davis with a copy of the VA regulations 38 C.F.R.
§§ 3.655(a)–(b) that states a claim for increase “shall be
denied” if a Veteran fails to report for an examination
scheduled in conjunction for a claim for increase without
good cause. The Statement of the Case further provided
Mr. Davis with examples of circumstances that constitute
good cause.
Mr. Davis also had a fair opportunity to be heard.
The VA gave Mr. Davis a number of opportunities to
explain why he did not appear for the new examination.
First, the VA telephoned Mr. Davis to reschedule the
medical examination, but Mr. Davis stated that he did not
wish to reschedule the exam and that he was working
towards filing a new claim. He provided no reason for his
refusal to participate in a new medical examination.
Second, after issuing the February 2014 Supplemental
Statement of the Case, denying his SMC claim, the VA
provided Mr. Davis with an opportunity to respond and to
present additional comments or evidence. Mr. Davis still
did not provide the VA with any reason why he did not
appear for the scheduled medical examination. Third, in
his appeal to the Board, Mr. Davis persisted in not pre-
senting any reason for his failure to report for the medical
examination.
To the extent Mr. Davis challenges the VA’s applica-
tion of its regulation to his claim of entitlement to SMC,
DAVIS v. SHULKIN 7
this court lacks jurisdiction over that challenge. 38
U.S.C. § 7292(d)(2). Other arguments made by Mr. Davis
are inapplicable and we do not further consider them.
The decision of the Veterans Court is affirmed.
AFFIRMED
COSTS
No costs.