Realdalist A. Fahie v. R. JAMES NICHOLSON, Secretary of Veterans Affairs

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
06-7010
REALDALIST A. FAHIE,
Claimant-Appellant,
v.
R. JAMES NICHOLSON,
Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: May 3, 2005
__________________________
Before NEWMAN, DYK, and PROST, Circuit Judges.
NEWMAN, Circuit Judge.
Realdalist A. Fahie appeals the decision of the United States Court of Appeals for
Veterans Claims (CAVC), affirming the decision of the Board of Veterans Appeals which
denied his claims for: an effective date earlier than August 4, 1995 for his
service-connected right-hand disabilities; a rating of total disability based on individual
unemployability; and an increased disability rating for his service-connected right-hand

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disabilities.1 These claims raise no issues of statutory or constitutional interpretation.
Accordingly, the appeal must be dismissed.
BACKGROUND
Mr. Fahie served on active duty in the U.S. Navy from January 1976 to November
1977. While on active duty in 1976, he injured his right hand and underwent surgery for
tendon repair. His separation medical examination report indicated that at separation from
service his right hand was normal, but that he had scarring and tendon laceration of the
hand. In 1978, the Veterans Administration (VA) awarded him service connection for
right-hand laceration and scar and assigned him a 0% disability rating.
In April 1983 Mr. Fahie sought a higher rating for his right-hand laceration and scar.
The VA, acting through the cognizant agency entity, requested that Mr. Fahie provide
evidence to show that his disability had worsened. The CAVC found no response in the
record from Mr. Fahie to that request. In January 1987 Mr. Fahie again applied for an
increase in his disability rating. In April 1987 the VA informed Mr. Fahie that he would be
scheduled for a VA medical examination to determine the severity of his disability. Mr.
Fahie submitted a letter from his physician, but refused to report for a VA medical
examination. The VA reviewed the evidence of record, including the physician's statement
that Mr. Fahie had provided, and denied the claim. Mr. Fahie did not appeal that decision.
1 Fahie v. Nicholson, No. 00-2286 (Ct. App. Vet. Cl. Aug. 30, 2005).

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Seven years later, Mr. Fahie filed another claim for an increased rating for his
right-hand disability, which was also denied. Mr. Fahie also sought compensation for a
bilateral-eye condition, but the VA ruled that the condition was not service connected.
On June 23, 1997, Mr. Fahie was given a VA medical examination and, as a result,
the VA increased Mr. Fahie's disability rating to 10% and awarded him service connection
for a right-hand orthopedic-neurological condition, also rated at 10%. Both ratings were
made effective August 4, 1995. On July 25, 1997, Mr. Fahie sought an earlier effective
date for his disability rating. He argued that the effective date should be November 1977,
the date of his separation from service. That claim was denied because Mr. Fahie had not
timely appealed the denial of his earlier claims, hence the only claim that was deemed still
open was the one filed in 1995.
In December 1998, Mr. Fahie sued the VA in the United States District Court for the
Southern District of New York, claiming that the VA was discriminating against him under
the Americans with Disabilities Act of 1990. The District Court dismissed the claim for lack
of jurisdiction.
On October 29, 1999, Mr. Fahie filed a claim for total disability, stating that he was
unable to work because of his right-hand condition. That claim was denied. Mr. Fahie
appealed that decision, and while the appeal was pending, the VA informed him that it
needed a current VA medical examination to determine the effect of his disability on his
ability to work. Mr. Fahie refused to be examined, stating that the record already contained
all of the evidence necessary to adjudicate his claim. In January 2000, the VA scheduled
examinations of Mr. Fahie's hand, thumb, and fingers, as well as a neurological exam, but
he failed to report for any of those examinations.

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In June 2000, Mr. Fahie's claims were remanded to the Regional Office for further
evaluation, with specific instructions to assist him in the processing of his claim. Mr. Fahie
submitted to a VA neurological examination in July, 2000, but refused to submit to further
testing, which included optometric and laboratory tests, x-rays, electromyograms, and
physical therapy. In August 2000, the VA received a letter from Mr. Fahie in which he
stated he would not participate in any additional VA medical examinations, and requested
that his claims be adjudicated on the evidence of record.
The Regional Office denied his claims on August 30, 2000. The agency refused to
increase his disability ratings or award an earlier effective date. Mr. Fahie appealed to the
Board of Veterans Appeals. In September 2000, he contacted the Regional Office and
reiterated that he did not wish any additional VA examinations in connection with his
appeal.
On November 3, 2000 the Board affirmed the RO's decision. The Board based its
decision, in part, on Mr. Fahie's refusal to submit to the tests and examinations that the
Regional Office deemed necessary to evaluate his claims, stating:
There is no evidence of record indicating that he was not able to travel to the
examination, for medical or other reasons . . . . He provided no specific
reason for his claimed hardship. More importantly, he has specifically refused
to report for additional VA examination and/or testing because he maintains it
was unwarranted and was not ordered by the Board, which, as noted above,
is not the case.
Accordingly, the Board concludes that the veteran has not shown good cause
for his refusal to report for VA examination and/or testing and that, based on
the veteran's refusal to report for the VA examinations scheduled in
conjunction with his claims for TDIU and increased ratings, his claims must
be denied.
The Court of Veterans Appeals affirmed, and this appeal followed.

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DISCUSSION
Mr. Fahie argues that the great weight of the evidence supports his position that he
is entitled to a higher disability rating, an earlier effective date for the ratings he has already
been awarded, and a determination that he is totally disabled. He cites the evidence of
record that supports these claims and argues that there is little or no evidence supporting
the government's position.
Except for the review of constitutional issues, 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). The government stresses that Mr. Fahie is
challenging the factual determination of the agency, and that such a challenge is outside of
our jurisdiction. We must agree. Mr. Fahie's claims are essentially that the VA incorrectly
evaluated the extent of his disabilities; these are factual determinations and, by statute,
they may not be reviewed here.
Mr. Fahie argues that the VA required an excessive number of tests and evaluations
before determining the extent of his disability, and that this constituted "grave procedural
error." He argues that we have jurisdiction over such procedural errors, and cites Hayre v.
West, 188 F.3d 1327 (Fed. Cir. 1999), overruled on other grounds, Cook v. Principi, 318
F.3d 1334 (Fed. Cir. 2002) (en banc). He argues that in Hayre this court reversed a CAVC
decision because the VA committed a similarly serious error there. In Hayre the Regional
Office failed to obtain certain medical evidence in the veteran's military record, and this
court held that, in doing so, the VA violated its duty to assist veterans in the prosecution of
their claims. Our jurisdiction over Mr. Hayre's claims arose from the erroneous
interpretation the Department accorded this duty to assist -- a matter of statutory

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interpretation. No such statutory issue is presented here. The number of evaluations
required to diagnose a particular medical condition is not an issue of law but a factual
medical judgment, and a veteran's refusal to be examined does not raise an issue of
statutory or procedural law.
Mr. Fahie argues that the Social Security Administration has deemed him totally
disabled and that the VA and the CAVC should accord deference to this determination.
The CAVC observed that the conditions that were considered for Social Security purposes
include legal blindness, not just the injury to his hand and subsequent surgeries. The
Social Security Administration's determination relied, in part, on Mr. Fahie's eye condition.
In relying on his eye condition as contributing to his disability, Mr. Fahie appears to
challenge the August 1998 RO decision denying service connection for the eye condition.
But Mr. Fahie did not appeal the RO's August 1998 decision regarding the eye condition,
and the issue of whether the eye condition was service connected was not before the
CAVC. We thus lack jurisdiction to consider it here.
For these reasons, the appeal is dismissed for want of appellate jurisdiction.
No costs.

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