Stanley W. Valentine v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STANLEY W. VALENTINE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1746
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-0217, Chief Judge Margaret C.
Bartley.
______________________
Decided: July 18, 2023
______________________
T HOMAS J OHN K NIFFEN, I, Law Office of Thomas J.
Kniffen, Vestal, NY, for claimant-appellant.
ERIC J OHN SINGLEY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON , ERIC P. BRUSKIN, P ATRICIA M.
MCCARTHY ; EVAN SCOTT G RANT , Y. K EN L EE , Office of
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VALENTINE v. MCDONOUGH 2
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before L OURIE, T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
Stanley Valentine appeals the final decision of the
United States Court of Appeals for Veterans Claims deny-
ing a rating higher than 10 percent for disability of his
right long finger. Because he fails to raise arguments
within the jurisdiction of our court, we dismiss for lack of
jurisdiction.
I
Mr. Valentine served in the United States Marine
Corps from December 1974 to December 1978 and in the
United States Army from April 1979 to January 1988. In
1989, a VA regional office (RO) awarded Mr. Valentine ser-
vice connection for cellulitis of the right hand and assigned
a 10 percent disability rating. In 1994, Mr. Valentine
sought an increased rating, which was denied by the RO
that same year and later by the Board in 1997. In Novem-
ber 2008, he again applied for an increased rating, but the
RO denied a rating higher than 10 percent. He then filed a
notice of disagreement with the RO’s decision. In August
2015, the Board remanded the claim for further factual de-
velopment, including a VA examination. After reviewing
the VA examination records, the Board denied his request
for a higher rating.
Mr. Valentine appealed to the Veterans Court, and in
February 2019 the parties submitted a joint motion for par-
tial remand of the Board’s decision. The parties agreed that
the Board erred by failing to address evidence indicating
that Mr. Valentine experienced “functional impact from
pain” on his right long finger. In August 2019, the Board
remanded the claim for a new VA examination.
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VALENTINE v. MCDONOUGH 3
Mr. Valentine underwent additional VA examinations in
December 2019 and September 2020, and he was diag-
nosed with degenerative arthritis and degenerative
changes of the metacarpophalangeal joint with limitation
of motion in his right long finger. While both examiners
acknowledged that he experienced functional limitation in
his right long finger, they concluded that “[his] functional
impairment was not so diminished that no effective func-
tion remains other than [what] would be equally well
served by an amputation with prothesis.” J.A. 3.
In December 2020, the Board denied a rating higher
than 10 percent for his right long finger disability. The
Board rated his disability under Diagnostic Code (DC)
5010-5229 (post-traumatic arthritis; limitation of motion of
the index or long finger). The Board considered evaluations
under other DCs, including DC 5154 (amputation of the
long finger), but determined that none satisfied the criteria
for an evaluation higher than 10 percent. The Board con-
cluded that “as demonstrated by the probative evidence of
record, including medical and lay evidence of record, [Mr.
Valentine] retains right long finger mobility and there is
no evidence of functional impairment comparable to ampu-
tation.” J.A. 13 (emphasis added).
Mr. Valentine appealed to the Veterans Court, primar-
ily arguing that the Board erred by adding a comparable to
amputation criteria to DC 5154. He contended that he was
prejudiced by the Board’s assessment of his right finger
disability under the “comparable to amputation” criteria in
the first instance without remand to the RO. The Veterans
Court affirmed the Board’s denial of a higher rating, reject-
ing his contention that “the Board’s assessment of the vet-
eran’s right long finger symptoms under the DC 5154
criteria, an assessment facilitated by the terms ‘compara-
ble to,’ constituted an unsupported medical conclusion or
otherwise modified the rating schedule.” J.A. 6. The Veter-
ans Court concluded that he “failed to demonstrate that the
Board committed prejudicial error in denying an increased
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VALENTINE v. MCDONOUGH 4
evaluation.” J.A. 4–5 (citing Shinseki v. Sanders, 556 U.S.
396, 409 (2009)).
Mr. Valentine appeals.
II
We review de novo the Veterans Court’s interpretation
of law. Bazalo v. West, 150 F.3d 1380, 1382 (Fed. Cir. 1998).
Unless an appeal from the Veterans Court decision pre-
sents a constitutional issue, this Court may not review “a
challenge to a factual determination,” or “a challenge to a
law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2)(A)–(B).
III
Section 7261(b)(2) requires the Veterans Court to “take
due account of the rule of prejudicial error.” Mr. Valentine
argues that the Veterans Court misinterpreted 38 U.S.C.
§ 7261(b)(2) when it concluded that the Board did not com-
mit prejudicial error in denying an increased rating. But
Mr. Valentine does not explain how the Veterans Court
misinterpreted § 7261(b)(2). Instead, he argues that the
Veterans Court erred as a matter of law merely by not find-
ing prejudicial error in the Board’s decision. He does not
allege that the Veterans Court relied on an incorrect legal
standard for assessing prejudicial error, nor does he pre-
sent any argument on what the correct interpretation of
§ 7261(b)(2) should be.
Mr. Valentine argues that the Board committed preju-
dicial error by evaluating his disability under newly added
criteria, “comparable to amputation,” in the first instance
without remand to the RO. Under his reasoning, the Vet-
erans Court failed to take due account of the Board’s prej-
udicial error under § 7261(b)(2) when it held that the words
“comparable to amputation” did not modify the rating
schedule. That argument does not challenge a legal inter-
pretation, though, but rather the application of the
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VALENTINE v. MCDONOUGH 5
prejudicial error rule to the facts of this case. Thus, we lack
jurisdiction.
The rating schedule explicitly permits the Board to
rate disabilities by analogy by selecting a DC for a closely
related disease, injury, or residual condition. 38 C.F.R.
§ 4.20. When the Board stated that Mr. Valentine did not
have “functional impairment comparable to amputation,”
J.A. 13, the Board did not modify DC 5154 criteria. Rather,
it made a factual determination that his disability does not
qualify for a rating under DC 5154 by analogy because
“[his] functional impairment was not so diminished that no
effective function remained other than what would be
equally well served by an amputation with prothesis.” J.A.
3. Since his right long finger is not amputated, rating by
analogy was the only way the Board could assess the ap-
plicability of DC 5154 to his case. Based on its review of
Mr. Valentine’s medical history and reports, the Board
found, and the Veterans Court affirmed, that his disability
does not qualify for a rating under DC 5154 because “the
evidence does not show amputation of [his] right long fin-
ger or its functional equivalent.” J.A. 6. We lack jurisdic-
tion to review those determinations.
Nor can we review the Board’s alleged failure here to
remand his claim to the RO because he provides no basis
for finding that he was entitled to remand as a matter of
law. Mr. Valentine cites 38 C.F.R. § 20.904 as the sole au-
thority for his contention that the Board was legally obli-
gated to remand his claim to the RO. Section 20.904
requires the Board to remand the case to the RO only when
“further evidence, clarification of the evidence, correction
of a procedural defect, or any other action is essential for a
proper appellate decision.” 38 C.F.R. § 20.904(a). He does
not explain why § 20.904 requires the Board to remand to
the RO in his case; nor point to any missing evidence or
action that was “essential for a proper appellate decision.”
And so, he raises no legal issue regarding § 20.904 within
our jurisdiction to decide.
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VALENTINE v. MCDONOUGH 6
Here, the Veterans Court “carefully reviewed the rec-
ord evidence,” including the degree of functional impair-
ment of Mr. Valentine’s right long finger, but was “not
persuaded that the Board failed to consider any relevant
provisions of law or regulation.” J.A. 6. Because we find
none of Mr. Valentine’s arguments raise a legal issue
within our jurisdiction, we dismiss for lack of jurisdiction.
IV
Because we lack jurisdiction to consider the arguments
raised on appeal, we dismiss.
DISMISSED
COSTS
No costs.
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