Joy v. Nicholson

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-7057
GEORGE D. JOY,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: October 6, 2006
___________________________
Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.
PER CURIAM.
DECISION
George D. Joy appeals from a decision of the Court of Appeals for Veterans
Claims (“Veterans Court”) that affirmed a decision by the Board of Veterans’ Appeals
denying Mr. Joy a disability rating in excess of 20% for chronic lumbar strain with
degenerative disc disease. We affirm.
BACKGROUND
Mr. Joy served on active duty in the United States Air Force from July 1965 to
January 1969. In February 2000, a regional office of the Department of Veterans Affairs
awarded Mr. Joy service connection for “chronic lumbar strain with degenerative disc
disease L4-L5 and L5-S1.” That condition was assigned a 20% disability rating based
on 38 C.F.R. § 4.71a, Diagnostic Codes 5293-95, and the rating was made effective as
of December 17, 1993. On Mr. Joy’s appeal from the rating decision, the Veterans
Court granted a motion for remand. On remand, the Board requested additional
development of the record, including additional medical examinations. After completing
the additional medical examinations, the Board concluded that Mr. Joy’s condition did
not warrant a disability rating in excess of 20%. Referring to the relevant Diagnostic
Codes, the Board found that the evidence of record did not show that the disability was
“severe, as would be exemplified by listing of the whole spine, marked limitation of
forward bending, or loss of lateral spine motion.” Nor did the Board find any evidence of
“muscle spasm,” “neurological impairment,” or “episodes during which [Mr. Joy] was
incapacitated.” Mr. Joy appealed that decision to the Veterans Court, arguing that he
was entitled to an increased rating for his lumbar condition and also that he was entitled
to service connection for various other conditions that had not been presented in his
appeal to the Board. The court affirmed the Board’s rating decision and declined to
consider Mr. Joy’s claims of service connection for other conditions. Mr. Joy now
appeals from that decision.
DISCUSSION
Mr. Joy raises several arguments in his brief to this court. First, Mr. Joy argues
that the Board erred by focusing exclusively on his ability to bend and flex during a short
medical examination, and by failing to take into account whether he could “repeatedly
perform such activities.” As a preliminary matter, we disagree with Mr. Joy’s
characterization of the Board’s decision. The Board in this case did not focus solely on
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Mr. Joy’s ability to bend and flex during a short medical examination. Rather, pursuant
to Diagnostic Code 5293, the Board considered whether Mr. Joy experienced episodes
of incapacitation, and the Board found no evidence of such episodes. Also, pursuant to
38 C.F.R. §§ 4.40 and 4.45 the Board considered the extent of Mr. Joy’s “functional
impairment” and “fatigability” and concluded that there was no “functional impairment
that is not adequately compensated by th[e] 20 percent rating.” Moreover, to the extent
that Mr. Joy is asking us to review or revise the criteria codified in the Department of
Veterans Affairs rating schedule, we have no authority to do so absent a challenge to
the constitutionality of the rating schedule, which Mr. Joy does not raise in this case.
See Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004) (“The Secretary’s
discretion over the schedule, including procedures followed and content selected, is
insulated from judicial review with one recognized exception limited to constitutional
challenges.”).
Next, Mr. Joy argues that the Board violated his right to due process by
“excluding” certain documents. There is no indication in the record, however, that the
Board refused to consider any evidence offered by Mr. Joy. Rather, it appears that the
Board considered all available evidence, including the most recent evidence from the
medical examinations the Board requested on remand. Thus, we see no basis for
concluding that the Board failed to consider any evidence bearing on Mr. Joy’s
condition.
Mr. Joy next argues that the Veterans Court erred by refusing to consider his
claims of service connection for various other injuries. On appeal to the Veterans Court,
Mr. Joy argued that he was entitled to service connection for various disabilities that
06-7057 3
were unrelated to his lumbar condition. Those additional claims were not raised before
the Board in this case. The statute that confers jurisdiction on the Veterans Court
provides that the court has the “power to affirm, modify, or reverse a decision of the
Board or to remand the matter as appropriate.” 38 U.S.C. § 7252(a) (emphasis added).
We have interpreted that statute to mean that the “court’s jurisdiction is premised on
and defined by the Board’s decision concerning the matter being appealed.” See
Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (holding that Veterans Court lacked
jurisdiction to consider a veteran’s claim for reinstatement of unemployability benefits
because the veteran only presented the Board with a separate claim for disability
benefits). Mr. Joy presented the Board with only a request for an increased rating for
his lumbar condition. Accordingly, the Board’s decision was confined to that claim, and
the Veterans Court therefore properly concluded that it had no jurisdiction to consider
claims that were not presented to the Board.
Finally, Mr. Joy argues that the Board failed to “give the veteran the benefit of the
doubt.” Mr. Joy is presumably referring to the statutory requirement that “[w]hen there is
an approximate balance of positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give the benefit of the doubt to the
claimant.” 38 U.S.C. § 5107(b). However, the Board in this case did not find an
“approximate balance” of evidence on any material issues in this case. Rather, the
Board found “no evidence” supporting Mr. Joy’s entitlement to a disability rating greater
than 20% for his lumbar condition. Thus, there was no issue on which Mr. Joy was
entitled to the benefit of the doubt.
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