Eddie Johnson v. Robert Wilkie, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDDIE JOHNSON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2049
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-7440, Judge Margaret C. Bart-
ley.
______________________
Decided: December 4, 2019
______________________
EDDIE J OHNSON, Warner Robins, GA, pro se.
MARIANA T ERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by J OSEPH H. HUNT , MARTIN F. HOCKEY , J R.,
ROBERT E DWARD K IRSCHMAN, J R.; CHRISTINA L YNN G REGG,
BRIAN D. G RIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.

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JOHNSON v. WILKIE 2
______________________
Before L OURIE, BRYSON, and T ARANTO, Circuit Judges.
P ER CURIAM .
Eddie Johnson appeals from the Court of Appeals for
Veterans Claims’ (“the Veterans Court’s”) denial of his pe-
tition for a writ of mandamus to compel the Department of
Veterans Affairs (“VA”) to award Johnson compensation
based on alleged service-connected deafness. See Johnson
v. Wilkie, No. 18-7440 (Vet. App. May 16, 2019) (“Deci-
sion”). Because Johnson raises only factual issues over
which we lack jurisdiction, we dismiss the appeal.
BACKGROUND
Johnson was awarded service connection for bilateral
hearing loss in 1982. When service connection was
awarded, VA determined that Johnson’s hearing loss was
zero percent disabling and assigned a noncompensable rat-
ing. Since then, Johnson has filed a series of claims re-
questing an increased rating. Johnson filed his first
request for an increased rating in 1989. At that time, VA
provided a hearing examination and, based on the results
of the examination, continued the noncompensable rating.
Johnson appealed the rating, which was eventually af-
firmed by the Veterans Court. Johnson filed another claim
for an increased rating on July 18, 2007, and VA again
maintained the noncompensable rating.
On September 17, 2009, Johnson filed a third claim for
an increased rating. VA provided a hearing examination
on January 13, 2010, and, based on the results of the ex-
amination, awarded Johnson a 70 percent rating for bilat-
eral hearing loss, effective from the date of the claim. The
effective date of Johnson’s 70 percent rating was later
changed to July 18, 2007.
On February 8, 2012, Johnson filed a fourth claim for
an increased rating. VA performed an additional

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JOHNSON v. WILKIE 3
examination on October 19, 2012, and awarded a 90 per-
cent rating, effective from the date of the claim.
In December 2018, Johnson petitioned the Veterans
Court for mandamus relief, asking the court to compel the
Atlanta VA regional office (“RO”) to issue a decision regard-
ing Johnson’s entitlement to special monthly compensation
(“SMC”) under 38 U.S.C. § 1114(k) for deafness in both ears
and for an earlier effective date for the 2012 90-percent dis-
ability rating. In response to Johnson’s petition, the RO
reviewed Johnson’s claims file and issued ratings decisions
dated February 28, 2019, and March 7, 2019 (“the 2019 de-
cisions”), respectively denying SMC based on deafness and
finding no clear and unmistakable error (“CUE”) under 38
U.S.C. § 5109A in VA’s 2012 rating decision. Because the
2019 decisions explained VA’s decision regarding John-
son’s entitlement to SMC for deafness in both ears, both on
the merits and as a CUE challenge, the Veterans Court de-
termined that Johnson had received the relief that he had
requested and dismissed Johnson’s petition as moot. Deci-
sion, slip op. at 2. The Veterans Court further noted that
to the extent that Johnson disagreed with the rating deci-
sions, he was free to challenge the decisions through nor-
mal VA procedures. Id.
Johnson timely appealed.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review a decision of the Veterans
Court with respect to a rule of law or interpretation of a
statute or regulation relied on by the Veterans Court in its
decision. 38 U.S.C. § 7292(a). However, except with re-
spect to constitutional issues, we may not review chal-
lenges to factual determinations or challenges to the
application of a law or regulation to the facts of a case. Id.
§ 7292(d)(2).

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JOHNSON v. WILKIE 4
The exclusion of review of factual issues from our juris-
diction does not preclude us from reviewing denials of a pe-
tition for mandamus based on a challenge to a law,
regulation, or constitutional issue. See Lamb v. Principi,
284 F.3d 1378, 1381–82 (Fed. Cir. 2002). The grant or de-
nial of a petition for mandamus is reviewed for abuse of
discretion. Id. at 1384. However, “[t]he remedy of manda-
mus is a drastic one, to be invoked only in extraordinary
situations,” Kerr v. United States Dist. Court, 426 U.S. 394,
402 (1976), and writs “cannot be used as substitutes for ap-
peals,” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379,
383 (1953).
On appeal, Johnson argues that VA erred in denying
SMC for his hearing loss. Specifically, Johnson argues that
the RO improperly denied Johnson’s request because it re-
lied on the results of the 2012 hearing examination. Ac-
cording to Johnson, the RO’s reliance on an earlier
examination was a deprivation of due process under the
Fifth Amendment.
The government responds that we lack jurisdiction to
review the Veterans Court’s dismissal of Johnson’s petition
because Johnson raises only factual issues on appeal—spe-
cifically, whether the RO correctly determined that John-
son’s hearing loss does not entitle him to SMC.
Accordingly, the government argues that we should dis-
miss Johnson’s appeal. Alternatively, the government ar-
gues that the Veterans Court’s dismissal of Johnson’s
petition was proper because Johnson received a decision
from VA regarding his entitlement to SMC, which Johnson
could have appealed through non-mandamus procedures.
We agree with the government that we lack jurisdic-
tion to consider the merits of Johnson’s appeal. The deter-
mination whether the severity of a disability entitles a
claimant to SMC is a factual determination that we lack
jurisdiction to review. See Bastien v. Shinseki, 599 F.3d
1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing

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JOHNSON v. WILKIE 5
of evidence and the drawing of appropriate inferences from
it are factual determinations committed to the discretion of
the fact-finder.”).
Johnson’s bare assertion of a due process violation is
insufficient to transform Johnson’s appeal into a constitu-
tional issue over which we have jurisdiction. Johnson ar-
gues that the RO improperly relied on an earlier hearing
examination in its denial of SMC. But Johnson’s “charac-
terization of that question as constitutional in nature does
not confer upon us jurisdiction that we otherwise lack.”
Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007)
(quoting Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir.
1999)).
In any event, as noted by the Veterans Court, Johnson
could have obtained review of the RO’s denial of SMC by
appealing the 2019 decisions within the VA system, and
may still do so subject to applicable time limits. In re-
sponse to his petition to the Veterans Court, Johnson re-
ceived decisions from the RO explaining its decision to deny
SMC, and Johnson has not explained how appealing the
RO’s denial of SMC through the regular appeal process
would have been insufficient to vindicate his objections to
the 2019 decisions.
CONCLUSION
We have considered Johnson’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
dismiss the appeal for lack of jurisdiction.
DISMISSED

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