Dennis W. Teter v. Robert Wilkie, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

DENNIS W. TETER,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2019-2385
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-1297, Judge Amanda L. Mere-
dith.
______________________

Decided: December 22, 2020
______________________

K
ENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, for claimant-appellant.

ALISON VICKS, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JEFFREY
B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA
PREHEIM; Y. KEN LEE, DEREK SCADDEN, Office of General
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TETER v. WILKIE
2
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________

Before D
YK, SCHALL, and HUGHES, Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Dennis W. Teter appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) in Dennis W. Teter v. Robert L. Wilkie, No. 18-1297,
2019 WL 2363311 (Vet. App. June 5, 2019). In its decision,
the Veterans Court affirmed the November 30, 2017 deci-
sion of the Board of Veterans’ Appeals (“Board”) that de-
nied Mr. Teter entitlement to an initial increased disability
rating for post-traumatic stress disorder (“PTSD”), with
panic disorder and agoraphobia in excess of 30 percent, be-
fore August 3, 2012. J.A. 128.
1
For the reasons set forth
below, we dismiss for lack of jurisdiction.
BACKGROUND
I
In its decision, the Board assessed Mr. Teter’s symp-
toms in view of the criteria for 30 percent and 50 percent
disability ratings set forth in 38 C.F.R. § 4.130. The Board
also considered symptoms that were not specifically men-
tioned in the rating criteria. J.A. 124–25. In addition, pur-
suant to 38 C.F.R. § 4.126(a), the Board addressed the
frequency, severity, and duration of Mr. Teter’s symp-
toms.
2
In that regard, the Board stated:

1
The Board also denied an increased disability rat-
ing for PTSD in excess of 70 percent beginning August 3,
2012, J.A. 128, but that ruling is not before us.
2
38 C.F.R. § 4.126(a) states:
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TETER v. WILKIE
3
The nature of many PTSD symptoms, such [as]
anxiety or suspiciousness, are such that they are
constant but not always producing a noticeable im-
pact on the Veteran’s social functioning. The one
symptom that has a severity connected to its fre-
quency of occurrence is panic attacks. The Vet-
eran’s panic attacks were noted to be at most
weekly during this period. The Board notes that
the Veterans [sic] responses on his June 2008
PTSD screening confirm that his symptoms, for the
most part, were mild during this time period. This
is also supported by the fact that the Veteran re-
mained employed and described his relationship
with his supervisor and co-workers as “good.”
J.A. 125. The Board concluded that, “based on considera-
tion of the listed rating criteria, other reported symptoms,
and consideration of the Veteran’s relatively mild and in-
frequent symptoms during this time period,” for the period
prior to August 3, 2012, Mr. Teter’s symptoms closely
matched the criteria for a 30 percent rating and did not
satisfy the criteria for a 50 percent rating. Id.

When evaluating a mental disorder, the rat-
ing agency shall consider the frequency, se-
verity, and duration of psychiatric symptoms,
the length of remissions, and the veteran’s ca-
pacity for adjustment during periods of remis-
sion. The rating agency shall assign an
evaluation based on all the evidence of record
that bears on occupational and social impair-
ment rather than solely on the examiner’s as-
sessment of the level of disability at the
moment of the examination.
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TETER v. WILKIE
4
II
Mr. Teter appealed the Board’s decision to the Veter-
ans Court. Before the Veterans Court, Mr. Teter argued
that the Board had failed to make the required assessment
of his PTSD and other mental-health disability symptoms
under the provisions of 38 C.F.R. § 4.130. Pointing to the
Board’s finding that “[b]efore August 3, 2012, the Veterans
[sic] PTSD caused no more than occupational and social im-
pairment with occasional decrease in work efficiency and
intermittent inability to perform occupational tasks,” Mr.
Teter contended that “[t]he Board failed, as required by
§ 4.130, to analyze [his] symptoms in terms of how those
symptoms impacted his social or occupational functioning.”
J.A. 140 (quoting J.A. 119). As a result, Mr. Teter asserted,
the Board had “failed to adequately consider the severity of
[his] service connected disability from [PTSD].” Id. at 140–
41. Mr. Teter also argued that the Board erred because it
made no findings of fact concerning “additional disabilities
from panic disorder and agoraphobia.” Id. at 141. Accord-
ing to Mr. Teter, because he was entitled to, but did not
receive, an evaluation of all of his service-connected mental
disorders, “the Board made a clear error of law by failing to
correctly apply the provisions of § 4.130 when assigning an
initial rating of 30 percent” for the period prior to August
3, 2012. Id.; see also id. at 141–43.
Addressing Mr. Teter’s argument that the Board
simply listed his symptoms without analysis or assess-
ment, the Veterans Court pointed out that Mr. Teter’s ar-
gument was “based on the Board’s recitation of the
evidence, not on its analysis of that evidence.” Teter, 2019
WL 2363311 at *3 (citing and comparing J.A. 121–22 (“Ev-
idence”) with J.A. 124–25 (“Analysis”)). The court then
found that “[i]n its analysis, . . . the Board expressly ad-
dressed the frequency, severity, and duration of the appel-
lant’s symptoms,” pointing in particular to the Board’s
analysis of Mr. Teter’s symptoms of anxiety, suspicious-
ness, and panic attacks. Id. (quoting J.A. 125). Having
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TETER v. WILKIE
5
found that the Board had performed the analysis required
under § 4.130, the court noted that Mr. Teter “[did] not pro-
vide specific arguments as to how that analysis is incom-
plete or incorrect.” Id. at *4. Accordingly, the court
determined that Mr. Teter had failed to carry his burden of
demonstrating error on the part of the Board on this point.
Id.
The Veterans Court then turned to Mr. Teter’s second
argument—that the Board failed to consider the symptoms
of his panic disorder and agoraphobia. The court acknowl-
edged the Department of Veterans Affairs’ argument that
Mr. Teter had failed to identify any symptoms of those dis-
orders that were not already included and compensated for
in his current rating. In addition, it noted Mr. Teter’s po-
sition that “it is not his obligation to identify . . . the symp-
toms of his panic disorder or agoraphobia or present
evidence that the Board overlooked.” Id. (citation and in-
ternal quotation marks omitted). The court explained,
however, that Mr. Teter did “bear the burden of demon-
strating prejudice as a result of the Board’s purported er-
ror.” Id. The court found that “[b]ecause the appellant has
not identified the symptoms of panic disorder and agora-
phobia for which he contends the Board failed to account
and has not argued or pointed to any evidence suggesting
that his symptoms satisfy the criteria for a higher disabil-
ity rating for the period on appeal,” Mr. Teter had failed to
demonstrate that any error was prejudicial. Id.
Having rejected Mr. Teter’s arguments, the Veterans
Court affirmed the decision of the Board. This appeal fol-
lowed.
D
ISCUSSION
I
Mr. Teter contends that the Veterans Court “relied
upon a misinterpretation” of 38 C.F.R. § 4.130 when it “re-
quired [him to] provide specific arguments as to how the
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TETER v. WILKIE
6
Board’s analysis was incomplete or incorrect.” Appellant’s
Br. 10. According to Mr. Teter, all he was required to do
was “describe[ ] the Board’s failure to comply with control-
ling regulatory law as interpreted by [the Federal Circuit]
and the Veterans Court.” Id. Mr. Teter asserts he did this
when he cited to the Veterans Court our decision in
Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir.
2013),
3
and argued that, by “merely quot[ing] verbatim”
the rating criteria for a 30 percent rating, the Board failed
to analyze his mental disorder symptoms, including his
panic disorder and agoraphobia, in terms of how those
symptoms impacted his social or occupational functioning,
as required by § 4.130. Id. at 11–12; see also id. at 14. Fi-
nally, Mr. Teter adds that the Board also failed to perform
its statutory duty under 38 U.S.C. § 7104(d) “to provide its
reasons for rejecting any material evidence favorable to
Mr. Teter regarding his symptoms from his service-con-
nected panic disorder and agoraphobia.” Appellant’s Br.
16.
The government responds that, because the level of im-
pairment associated with a rating under 38 C.F.R. § 4.130
is a factual conclusion, we lack jurisdiction to consider the

3
In Vazquez-Claudio, we explained that evaluation
under § 4.130 is “symptom[ ]driven,” meaning that “symp-
tom[s] should be the fact-finder’s primary focus when de-
ciding entitlement to a given disability rating” under the
regulation. 713 F.3d at 116–17. We stated that, “[r]eading
§§ 4.126 and 4.130 together, it is evident that the ‘fre-
quency, severity, and duration’ of a veteran’s symptoms
must play an important role in determining his disability
level.” Id. at 117 (quoting § 4.126). We held, in Vazquez-
Claudio, “that a veteran may only qualify for a given disa-
bility rating under § 4.130 by demonstrating the particular
symptoms associated with that percentage, or others of
similar severity, frequency, and duration.” Id.
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TETER v. WILKIE
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arguments Mr. Teter advances on appeal. Appellee’s Br. 9
(citing Vazquez-Claudio, 713 F.3d at 117). The government
contends that, after noting the criteria for 30 percent and
50 percent disability ratings under 38 C.F.R. § 4.130 and
reviewing the governing case law, the Veterans Court
simply applied the regulation and governing law to the
facts of Mr. Teter’s case. Id. at 10–12. The government
concludes that “the only dispute here is how the well-estab-
lished legal standards governing assessment under 38
C.F.R. § 4.130 were applied to [Mr. Teter’s] case—an issue
of application of law to fact that is beyond [the Federal Cir-
cuit’s] purview.” Id. at 12 (citing 38 U.S.C. § 7292(d)(2)).
II
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Unless a case presents a con-
stitutional issue, we may not review a challenge to a fac-
tual 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).
We disagree with Mr. Teter’s contention that the Vet-
erans Court relied upon a misinterpretation of 38 C.F.R.
§ 4.130. Indeed, the Veterans Court did not “interpret”
§ 4.130 at all. Rather, the Veterans Court applied the gov-
erning law to the facts of Mr. Teter’s case and found that
the Board “expressly addressed” Mr. Teter’s symptoms in
terms of their frequency, severity, and duration. Teter,
2019 WL 2363311 at *3 (quoting J.A. 125). Although Mr.
Teter attempts to frame his arguments as a challenge to
the legal standard set forth in § 4.130, it is clear that he is
actually asking us to review a challenge to a law or regula-
tion as applied to the facts of his case. Such a review is
outside our jurisdiction. 38 U.S.C. § 7292(d)(2). In addi-
tion, we note that the Veterans Court found that Mr. Teter
had not demonstrated any prejudice due to the Board’s al-
leged error to account for any of his symptoms. Teter, 2019
WL 2363311 at *4. This finding is outside our jurisdiction
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TETER v. WILKIE
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as well, as are Mr. Teter’s challenges to the adequacy of the
Board’s reasons and bases. See Pitts v. Shinseki, 700 F.3d
1279, 1286 (Fed. Cir. 2012) (concluding that the claimant’s
argument that the Veterans Court erred in finding an error
harmless falls outside our court’s jurisdiction); Newhouse
v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (stating
that 38 U.S.C. § 7292(d)(2) “prevents us from reviewing
[the claimant’s] contentions regarding actual prejudice”);
Lawson v. Shinseki, 449 F. App’x 2 (Fed. Cir. 2010) (con-
cluding that our court lacks jurisdiction to review a chal-
lenge under 38 U.S.C. § 7104); Cook v. Principi, 353 F.3d
937, 940 (Fed. Cir. 2003) (same).
C
ONCLUSION
Because Mr. Teter presents only challenges that fall
outside our jurisdiction, we dismiss for lack of jurisdiction.
DISMISSED
C
OSTS
No costs.
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