Danny Davis v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANNY DAVIS,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1960
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-4863, Judge Amanda L. Mere-
dith.
______________________
Decided: March 10, 2025
______________________
D ANNY D AVIS , Memphis, TN, pro se.
J OSHUA N. SCHOPF , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, MARTIN F. HOCKEY , J R., P ATRICIA M.
MCCARTHY ; MATTHEW ALBANESE , D EREK SCADDEN, Office
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DAVIS v. COLLINS 2
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before L OURIE, T ARANTO, and STOLL , Circuit Judges.
P ER CURIAM .
Danny Davis left active military service in April 1993
and began applying to the U.S. Department of Veterans Af-
fairs (VA) for awards of or increases in already-awarded
disability benefits, under 38 U.S.C. ch. 11, based on assert-
edly service-connected injuries. In 2015 and 2017, Mr. Da-
vis filed three claims requesting increased disability
ratings for service-connected conditions of the lower back
and right ankle, benefits for deep venous thrombosis in his
left leg, benefits for degenerative arthritis in his right
shoulder, an earlier effective date and a rating of compen-
sable disability for service-connected hypertension, and
other matters not relevant to the present appeal. After
VA’s relevant regional office denied those claims, the VA’s
Board of Veterans’ Appeals (Board) (1) remanded the mat-
ters of entitlement to a higher disability rating for the back
and right-ankle conditions, (2) found that the deep venous
thrombosis and the right-shoulder condition were con-
nected to Mr. Davis’s service, (3) granted a disability rating
of 10% (not higher) for hypertension, and (4) dismissed the
claim of entitlement to an earlier effective date for the
award of benefits for service-connected hypertension. Mr.
Davis appealed.
The Court of Appeals for Veterans Claims (Veterans
Court) ruled that it lacked jurisdiction over the remanded
matters, as well as the Board’s favorable findings of service
connection and favorable grant of a 10% disability rating
for service-connected hypertension. Davis v. McDonough,
No. 22-4863, 2024 WL 935642, at *1, *8 (Vet. App. Mar. 5,
2024) (2024 Opinion). For service-connected hypertension,
it also affirmed the denial of a disability rating higher than
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DAVIS v. COLLINS 3
10% and dismissed Mr. Davis’s appeal regarding an earlier
effective date. Id. at *1–2, *8. Mr. Davis asks this court to
review the Veterans Court’s determination. We affirm in
part and dismiss in part.
I
Mr. Davis served on active duty from November 1979
to April 1993. Id. at *2. Since his departure from active
duty, he has sought compensation for several disabilities.
Id. We describe the history of the proceedings specifically
relevant to the issues now before us.
A
In a June 1994 rating decision, VA found service con-
nection for hypertension and for residuals of injuries to his
back (lumbar strain) and right ankle, effective April 20,
1993, the day following his separation from service. Id.; see
38 U.S.C. § 5110(b)(1). For hypertension, VA found the dis-
ability not to warrant compensation, but for the other two
conditions, VA assigned a 10% disability rating. 2024
Opinion, at *2. In February 1999, VA increased Mr. Da-
vis’s disability ratings for the lumbar-strain and right-an-
kle conditions to 40% and 20%, respectively, effective May
19, 1998, but denied his request for a positive-compensa-
tion rating for hypertension. Id.
In 2015, Mr. Davis sought increased ratings for his
back and right-ankle conditions and benefits for a blood
clot in the left leg, but VA denied those requests. Id. In
April 2017, Mr. Davis again requested positive compensa-
tion for hypertension, but VA denied the request in October
2017. Id. In August 2017, Mr. Davis filed a claim for ben-
efits for degenerative arthritis of the right shoulder, which
VA denied in March 2018. Id. Mr. Davis filed notices of
disagreement with the 2015, 2017, and 2018 decisions, ap-
pealing those decisions to the Board. Id.
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DAVIS v. COLLINS 4
B
On April 8, 2022, the Board issued its decision.
S. Appx. 35–68;1 see 2024 Opinion, at *3. The Board re-
manded the matters of entitlement to higher disability rat-
ings for mechanical low-back pain with a herniated disc
and residuals of a right-ankle fracture, stating that Mr. Da-
vis “should be afforded new VA examinations to determine
the current nature and severity of his service-connected
low back, [and] right ankle” disabilities. S. Appx. 66–68;
see S. Appx. 36; 2024 Opinion, at *1. The Board found ser-
vice connection for residuals for deep venous thrombosis of
the left leg (including pulmonary embolism and atrial fi-
brillation) and for strain and degenerative arthritis of the
right shoulder. S. Appx. 35; 2024 Opinion, at *1.
Regarding Mr. Davis’s entitlement to benefits for hy-
pertension (already found to be service connected), the
Board dismissed as a matter of law his request for an effec-
tive date earlier than April 20, 1993 (the day after his ac-
tive service ended). S. Appx. 35, 38. The Board explained
that “[s]ervice connection cannot be established earlier
than the first day following separation from active service.”
S. Appx. 43. The Board further reasoned that Mr. Davis
did not file a notice of disagreement challenging VA’s June
1994 rating decision (which assigned that effective date
and found the disability not to warrant compensation) and
was not now arguing for clear and unmistakable error of
that decision. S. Appx. 36, 43–44; see 38 U.S.C. § 5110; 38
C.F.R. §§ 3.400, 20.202.
Regarding Mr. Davis’s April 2017 request for a posi-
tive-compensation rating for hypertension, the Board
agreed with Mr. Davis in part. See S. Appx. 36. It found
that a 10% rating under 38 C.F.R. § 4.104, Diagnostic Code
1 “S. Appx.” refers to the Supplemental Appendix
submitted by the government.
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DAVIS v. COLLINS 5
7101, was warranted, explaining that, although blood pres-
sure readings between May 2016 and September 2019 ex-
hibited diastolic blood pressure predominantly below 100,
“September 1993 and October 1998 VA examination re-
ports clearly show[ed] that historically, he exhibited dias-
tolic blood pressure elevation to predominantly 100 or
more” and his “hypertension require[d] the continuous use
of medication for control.” S. Appx. 63–65 (citing Wilson v.
McDonough, 35 Vet. App. 75 (2021)). The Board added
that, in evaluating Mr. Davis’s service-connected hyperten-
sion for disability-rating purposes, it could properly rely on
blood-pressure readings taken while Mr. Davis was taking
blood-pressure medication. S. Appx. 63–64 (citing McCar-
roll v. McDonald, 28 Vet. App. 267 (2016)). The Board
found that the record did not show that Mr. Davis met the
criteria for a 20% disability rating. S. Appx. 36, 65. Mr.
Davis appealed the Board’s decision.
C
The Veterans Court issued its opinion on March 5,
2024. S. Appx. 10–21; 2024 Opinion, at *1. The Veterans
Court concluded that, because remands by the Board are
not final decisions, the Veterans Court lacked jurisdiction
over the matters related to the disability rating assigned to
the conditions of the lower back and right ankle. 2024
Opinion, at *1. The Veterans Court similarly concluded
that it lacked jurisdiction to review or disturb the Board’s
“fully favorable” findings of service connection for the right-
shoulder condition, service connection for deep venous
thrombosis, and a 10% disability rating for his service-con-
nected hypertension. Id. at *1, *5.
The Veterans Court reviewed and affirmed the Board’s
denial, based on its “longitudinal review of the record,” of a
20% rating for the service-connected hypertension. Id. at
*2, *6–7. The Veterans Court noted that Mr. Davis did not
challenge, on appeal, the Board’s dismissal of his request
for an effective date earlier than April 20, 1993, for service-
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DAVIS v. COLLINS 6
connected hypertension. Id. at *1. Furthermore, “to the
extent that [Mr. Davis] contend[ed] that he is entitled to an
effective date as early as 2005 for the [eventual] award of
the 10% rating for hypertension,” the Veterans Court held
that this matter was not before it because “the Board did
not assign an effective date for the higher rating in the de-
cision on appeal.” Id. at *7.
The Veterans Court also addressed whether it could
consider a letter that Mr. Davis purportedly sent to VA’s
Office of the Inspector General (OIG letter) in July 2018.
Id. at *3 n.3. Mr. Davis included the OIG letter in his in-
formal brief to the Veterans Court to support his argument
that VA fraudulently closed claims he purportedly filed in
2001 and 2002 for benefits for left-knee and ankle condi-
tions. Id.; S. Appx. 24–34.2 The Veterans Court explained
that it was precluded by 38 U.S.C. § 7252(b) from consider-
ing the OIG letter because Mr. Davis “d[id] not assert that
this document was before the Board at the time of the de-
cision on appeal, nor d[id] this document appear in the rec-
ord of proceedings filed with the Court.” 2024 Opinion, at
*3 n.3.
On March 26, 2024, Mr. Davis moved for single-judge
reconsideration. S. Appx. 5–9. He made six arguments rel-
evant to the present appeal.3 First, he argued that the
2 The OIG letter refers to Mr. Davis’s “right ankle
and knee for arthritis from injuries,” S. Appx. 33, but the
parties agree that the OIG letter was referring to degener-
ative arthritis in the left knee and ankle. See Informal
Opening Brief at 5; Appellee Response Brief at 2 n.4 (not-
ing Mr. Davis’s “slip of the pen” in the letter); Informal Re-
ply Brief at 1.
3 He also urged the Veterans Court to reconsider its
decision to vacate the Board’s denial of benefits for acid re-
flux and remand the matter for further proceedings, but
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DAVIS v. COLLINS 7
Board’s remand of the matters relating to his lower back
and right ankle were not “favorable” given VA’s previous
denial of benefits without an examination. S. Appx. 8. Sec-
ond, he argued that his right-shoulder condition warranted
a 20% disability rating. Id. Third, he disagreed with the
Veterans Court’s characterization of the Board’s grant of
service connection for deep venous thrombosis as “favora-
ble” because he had not yet received “a settlement and[/]or
benefits.” Id. Fourth, he argued that, regarding hyperten-
sion, he deserved a rating higher than 10%, asserting that
the blood-pressure readings VA obtained during examina-
tions were inaccurate for several reasons, including that
the readings were taken while Mr. Davis was taking his
blood-pressure medication, which he said brings his blood
pressure down. S. Appx. 5–7. Fifth, he argued that the ef-
fective date for benefits for service-connected hypertension
and deep venous thrombosis “should be early February
2006.” S. Appx. 7–8. Sixth, he argued that the OIG letter
was in the record because OIG is “under the chain of com-
mand of the Secretary of the VA” and because he purport-
edly mentioned the letter to the Board in an October 2021
hearing. S. Appx. 8.
In an order issued April 2, 2024, the Veterans Court
denied single-judge reconsideration, explaining that it
would not consider arguments Mr. Davis was raising for
the first time and that Mr. Davis had failed to show that
the Veterans Court had “overlooked or misunderstood a
point of fact or law prejudicial to the outcome of the ap-
peal.” S. Appx. 2–4. The Veterans Court’s decision became
did not identify a specific error in the Veterans Court’s de-
cision to vacate and remand, which we note is not a deci-
sion adverse to Mr. Davis, or his desired outcome.
S. Appx. 8. He has not raised this acid-reflux matter in the
present appeal. Informal Opening Brief at 1–7.
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DAVIS v. COLLINS 8
final on April 2, 2024, and Mr. Davis timely appealed to
this court.
II
Our authority to review decisions by the Veterans
Court is “limited by statute.” Perciavalle v. McDonough,
101 F.4th 829, 835 (Fed. Cir. 2024); see generally 38 U.S.C.
§ 7292. We have authority to review “the validity of a de-
cision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans] Court in making the deci-
sion.” 38 U.S.C. § 7292(a). In particular, the scope of the
Veterans Court’s jurisdiction under 38 U.S.C. § 7252 is a
legal issue. See Goss v. McDonough, 122 F.4th 1332, 1336
(Fed. Cir. 2024). But where, as here, no constitutional
question is presented, we “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.” 38
U.S.C. § 7292(d)(2); see Perciavalle, 101 F.4th at 835.
We understand Mr. Davis to be making six arguments.
First, he argues that he should be awarded a disability rat-
ing for degenerative arthritis in his back and right ankle.
Informal Opening Brief at 4, 6, 7. Second, he argues that
he should be awarded a disability rating for his deep ve-
nous thrombosis and a higher disability rating for his right-
shoulder condition. Id. at 5–7. Third, regarding his ser-
vice-connected hypertension, Mr. Davis argues that he is
entitled to a disability rating higher than 10%, at least in
part because the Board, in limiting the rating to 10%, relied
on blood-pressure readings he deems inaccurate. Id. at 4,
6–7. Fourth, he argues that he is entitled to an earlier ef-
fective date, seemingly back to 2006, for the finding of ser-
vice connection and benefits for hypertension and deep
venous thrombosis. Id. at 6–7. Fifth, he argues that he is
entitled to benefits for conditions of his left knee and ankle,
citing his OIG letter as evidence in support. Id. at 6–7.
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DAVIS v. COLLINS 9
None of these contentions, we conclude, supplies a basis for
us to set aside the Veterans Court’s decision.
We conclude that the Veterans Court correctly ruled
that it lacked jurisdiction over the issue in Mr. Davis’s ap-
peal related to the disability ratings for conditions of the
lower back and right ankle. The Board’s remand of those
matters is not a grant or denial of a higher disability rating
and, thus, is not a “decision” under 38 U.S.C. § 7252(a) that
the Veterans Court has authority to review. Kirkpatrick v.
Nicholson, 417 F.3d 1361, 1363–64 (Fed. Cir. 2005); see 38
U.S.C. § 7104(d)(3). The Board (or VA regional office if
warranted) is where Mr. Davis must present his factual ar-
guments about how his purported degenerative arthritis in
his lower back and right ankle should affect his disability
rating. See, e.g., S. Appx. 8; Informal Reply Brief at 1, 3, 6.
He may also file new claims to the extent he asserts condi-
tions outside the scope of the claims already presented.
We also conclude that, to the extent that the Board
found service connection for deep venous thrombosis and
for strain and degenerative arthritis in the right shoulder,
and to the extent it granted a disability rating of 10% for
service-connected hypertension, those rulings were deci-
sions favorable to Mr. Davis. S. Appx. 35–36; 2024 Opin-
ion, at *5; see Monk v. Shulkin, 855 F.3d 1312, 1316, 1319–
20 (Fed. Cir. 2017). Because those decisions are not ad-
verse decisions, the Veterans Court correctly concluded
that it lacked jurisdiction to review them under 38 U.S.C
§ 7266(a). 2024 Opinion, at *1, *5; Monk, 855 F.3d at 1316,
1319–20.
Mr. Davis argues that he should receive an effective
date in 2006 for his service-connected deep venous throm-
bosis and his service-connected hypertension. Informal
Opening Brief at 6–7. We conclude that the Veterans Court
correctly ruled that those issues were not before it. 2024
Opinion, at *1, *5, *7; S. Appx. 3. Regarding deep venous
thrombosis, the Veterans Court explained that
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DAVIS v. COLLINS 10
“downstream” issues like an effective date are decided after
service connection is found; thus, the Board had not ad-
dressed the issue of the effective date for benefits for deep
venous thrombosis and that issue was not before the Court.
2024 Opinion, at *5 (citing Grantham v. Brown, 114 F.3d
1156, 1158 (Fed. Cir. 1997)); S. Appx. 3. Similarly, regard-
ing a rating of compensable disability for hypertension, the
Board had not “assign[ed] an effective date for the higher
rating in the decision on appeal, and therefore that matter
[was] not before the [Veterans] Court.” 2024 Opinion, at
*7; S. Appx. 3.
Mr. Davis challenges the accuracy of the blood-pres-
sure readings on which the Board relied, when assigning a
10% rating, in finding that a rating of 20% was not war-
ranted under 38 C.F.R. § 4.104, Diagnostic Code 7101. In-
formal Opening Brief at 4–5. We do not have authority to
review that challenge, which amounts to no more than a
challenge to the Board’s findings of fact or application of
law to the facts. See King v. Shinseki, 700 F.3d 1339, 1346
(Fed. Cir. 2012). Mr. Davis has not identified a legal error
in the Veterans Court’s allowance, at least in this case, of
using blood-pressure readings that Mr. Davis deems inac-
curate at least in part because he was medicated when
those readings were taken. The Veterans Court explained
in McCarroll that use of blood-pressure readings taken
while a veteran is medicated is allowed under Diagnostic
Code 7101, 28 Vet. App. at 271–75, and Mr. Davis has not
argued that McCarroll committed legal error in so conclud-
ing. See 2024 Opinion, at *7 (noting absence of challenge);
Informal Opening Brief (no challenge to McCarroll);
S. Appx. 3.
Finally, Mr. Davis contends that he is entitled to disa-
bility benefits for claims he purportedly presented to VA in
2001 and 2002. Informal Opening Brief at 7. He relies on
the OIG letter, which he argues was properly before the
Board at the time of its 2022 decision. Id. at 5–7; Informal
Reply Brief at 1–2, 6–7. The Veterans Court determined
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DAVIS v. COLLINS 11
that it was precluded from considering the letter because it
was not in the record before the Board. 2024 Opinion, at
*3 n.3; see 38 U.S.C. §§ 7252(b), 7261(b); Kyhn v. Shinseki,
716 F.3d 572, 575–77 (Fed. Cir. 2013) (holding that reliance
on extra-record evidence exceeds the Veterans Court’s lim-
ited jurisdiction); see also Bowling v. McDonough, 38 F.4th
1051, 1057 (Fed. Cir. 2022); Tadlock v. McDonough, 5 F.4th
1327, 1333, 1335–36 (Fed. Cir. 2021). Mr. Davis’s conten-
tion that he had mentioned the letter and raised the issue
to the Board in October 2021, “without more,” the Veterans
Court explained, “d[id] not demonstrate that the Court
overlooked or misunderstood any point of law or fact.”
S. Appx. 3. Mr. Davis makes no argument in the present
appeal that the Veterans Court legally erred in so conclud-
ing, and thus we lack jurisdiction to decide whether the
OIG letter was in the record. And even if the OIG letter
was in the record, it discusses claims related to his left knee
and ankle, which were not before the Board or, therefore,
the Veterans Court or us. See Ledford v. West, 136 F.3d
776, 782 (Fed. Cir. 1998); Skaar v. McDonough, 48 F.4th
1323, 1332–33 (Fed. Cir. 2022); Calvert v. Peake, 285 F.
App’x 751, 753 n.1 (Fed. Cir. 2008). These conclusions do
not foreclose Mr. Davis from raising arguments advanced
in the OIG letter in pursuing claims he has pending or may
yet properly file.
III
We have considered Mr. Davis’s other arguments and
find them unpersuasive. We affirm in part and dismiss in
part, as set forth above.
The parties shall bear their own costs.
AFFIRMED IN PART, DISMISSED IN PART
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