Mark C. Jackson v. Robert Wilkie, Acting Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK C. JACKSON,
Claimant-Appellant
v.
ROBERT WILKIE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2018-1207
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-0021, Judge Margaret C.
Bartley.
______________________
Decided: May 2, 2018
______________________
MARK C. J ACKSON, Starke, FL, pro se.
J OSEPH ALAN P IXLEY , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by CHAD A. READLER , ROBERT E. K IRSCHMAN, J R.,
CLAUDIA B URKE; Y. K EN L EE , AMANDA B LACKMON, Office
of General Counsel, United States Department of Veter-
ans Affairs, Washington, DC.

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JACKSON v. WILKIE 2
______________________
Before L OURIE, M OORE, and CHEN, Circuit Judges.
P ER CURIAM .
Mark C. Jackson (“Jackson”) appeals from the deci-
sion of the United States Court of Appeals for Veterans
Claims (the “Veterans Court”) affirming the decision of
the Board of Veterans’ Appeals (the “Board”) denying him
entitlement to a total disability evaluation based on
individual unemployability (“TDIU”). See Jackson v.
Shulkin, No. 17-0021, 2017 WL 4861924 (Vet. App. Oct.
26, 2017) (“Decision”). For the reasons that follow, we
dismiss the appeal.
BACKGROUND
Jackson served on active duty in the United States
Navy from July 1989 to July 1993. In August 2003,
Jackson filed a claim at the U.S. Department of Veterans
Affairs (“VA”) Regional Office (“RO”) for entitlement to
TDIU benefits and requested vocational rehabilitation
and employment (“VRE”) training for a “sit down job” that
did not require both hands. Decision, 2017 WL 4861924,
at *1. Before he filed the claim, the RO had assigned
Jackson service connection for a 10% disability rating for
right foot injury residuals, a 0% rating for a right ear
injury, and a 0% rating for left finger fracture residuals.
Id.
In December 2003, Jackson reported he had a “sit
down job” tuning cable amplifiers that he could do with
one hand from July 1997 to December 2000. Id. Jackson
then worked as a technician from December 2000 to
December 2001 and at a fast food restaurant from August
2002 to October 2002, but he was unable to satisfy the
standing and walking requirements of those positions. Id.
In February 2004, the RO denied Jackson’s TDIU
claim. Id. at *2. That same month, Jackson filed a Notice

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JACKSON v. WILKIE 3
of Disagreement (“NOD”) as to the decision denying
TDIU, but the RO continued to deny TDIU.
Jackson appealed to the Board. In April 2005, the
Board remanded Jackson’s TDIU claim. Id. In March
2006, the VA denied Jackson’s request for VRE services,
determining that his vocational goal was not reasonably
feasible because Jackson had not been compliant with the
program for two years. Id. In April 2006, Jackson filed
an NOD as to the denial of VRE services. Id.
Between October 2006 and June 2013, the Board re-
manded the TDIU and VRE claims multiple times, includ-
ing in December 2011 to obtain Jackson’s records from the
Social Security Administration (“SSA”). Id. The VA
requested Jackson’s records from the SSA in May and
July 2012, but was later informed by the SSA that the
records could not be located and any further efforts to
locate them would be futile. Id. In February 2013, the
VA notified Jackson that his SSA records were unavaila-
ble. Id.
In August 2014, the Board granted Jackson’s VRE
appeal, finding that the March 2006 decision denying
VRE services was incorrect. Id. The Board found that
Jackson’s occupational goal of working as a computer
systems analyst was reasonable and that his service-
connected foot injury would not prevent him from per-
forming this type of work. Id.
But in April 2016, the Board again remanded the
TDIU claim. The matter was referred to the Compensa-
tion Service Director, who determined that Jackson was
not entitled to extraschedular TDIU under 38 C.F.R.
§ 4.16(b). Id. At this time, Jackson’s combined disability
evaluation was 40%, which included service connection for
a right foot injury, rated at 30%; lumbosacral strain, rated
at 10%; left finger fracture, rated at 0%; right ear injury,

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JACKSON v. WILKIE 4
rated at 0%; mole removal, rated at 0%; and right foot
hammertoes on the second to fifth digits, rated at 0%.1
Id. The Compensation Service Director found that Jack-
son’s service-connected disabilities did not preclude him
from sedentary employment requiring limited standing
and walking. Id.
Jackson appealed the denial of his TDIU claim to the
Board. The basic issue before the Board then was Jack-
son’s entitlement to TDIU. Id. In October 2016, the
Board found that Jackson’s service-connected disabilities
did not render him unable to secure substantially gainful
employment and denied the claim. Id. In its decision, the
Board considered Jackson’s partial college education and
computer work history, as well as his statements that he
was unable to work due to limitations in walking, stand-
ing, and repetitive left hand use. Id.
In August 2017, Jackson appealed this decision to the
Veterans Court, which affirmed the Board. Id. at *4. In a
single-judge decision, the Veterans Court confirmed that
it did not have jurisdiction over Jackson’s separate VRE
claim because it was not before the Board in its October
2016 adjudication. Id. at *3. The Veterans Court also
concluded that the Board did not err in determining that
the VA satisfied its duty under 38 C.F.R. § 3.159 to assist
Jackson in obtaining his SSA records in support of his
TDIU claim and that such records were unavailable. Id.
After multiple attempts at securing the records, SSA had
notified the VA that the requested records were unavaila-
ble and that any further effort at locating such records
would be futile. Id. at *2.
1 Jackson apparently was not entitled to TDIU un-
der 38 C.F.R. § 4.16(a) either, which in the case of two or
more disabilities requires “at least one disability ratable
at 40 percent or more, and sufficient additional disability
to bring the combined rating to 70 percent or more.”

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JACKSON v. WILKIE 5
Jackson moved for a full panel decision, which was
granted. The panel agreed with the single judge and
affirmed. Jackson then timely appealed to this court.
D ISCUSSION
The scope of our review in an appeal from the Veter-
ans Court is limited. We may review the validity of a
decision with respect to a rule of law or interpretation of a
statute or regulation that was relied upon by the Veterans
Court in making its decision. 38 U.S.C. § 7292(a). Except
with respect to constitutional issues, this Court “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.” Id. § 7292(d)(2).
Jackson raises several arguments in this appeal. For
the following reasons, we conclude that we lack jurisdic-
tion over Jackson’s claims.
Jackson argues that he was unlawfully denied VRE
benefits for opposing unlawful discrimination. The gov-
ernment responds that because the VRE claim was not
before the Board, the Veterans Court properly concluded
that it lacked jurisdiction over that claim, and therefore
the VRE claim is not properly presented to this court.
We agree with the government. As prescribed by
statute, our task is to review certain legal determinations
relied upon by the Veterans Court in deciding a case, see
38 U.S.C. § 7292(d)(1), not to decide issues in the first
instance. We lack jurisdiction over Jackson’s VRE claims
that were not before the Veterans Court or decided by the
Board.
Jackson also raises several arguments relating to his
TDIU claim. Jackson argues that the VA failed to meet
its duty to acquire his SSA records and conspired with the
Social Security Commissioner to falsify his records. In
connection with the alleged conspiracy, Jackson alleges
that the VA misdiagnosed him with a finger, rather than

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JACKSON v. WILKIE 6
a hand, disability. The government responds that Jack-
son’s allegations are factual in nature and outside our
jurisdiction.
We agree with the government that Jackson’s conten-
tions challenge either the Veterans Court’s factual deter-
minations or its application of law to facts, and we have
jurisdiction over neither of such determinations. 38
U.S.C. § 7292(a); see also Jackson v. Shinseki, 324 F.
App’x. 901, 904 (Fed. Cir. 2009) (similarly concluding that
we lacked jurisdiction over Jackson’s SSA records claims).
Finally, Jackson argues that the VA violated his
rights under the First and Fifth Amendments by denying
him TDIU. Appellant Br. 3 (citing Cushman v. Shinseki,
576 F.3d 1290, 1293 (Fed. Cir. 2009)). He also generally
alleges that the VA engaged in racketeering and extortion
and has refused to pay for and implement his intellectual
property.
The government responds that the Veterans Court
neither needed to decide nor did decide any constitutional
issue in its decision, and that Jackson has merely at-
tached constitutional labels to his factual claims challeng-
ing the VA’s denial of TDIU. According to the
government, such labeling of factual claims as constitu-
tional is not sufficient to invoke our jurisdiction.
We agree with the government that Jackson has only
repackaged into constitutional form his claim that he
qualifies for TDIU, and we lack jurisdiction over that
claim because it only challenges the Veterans Court’s
factual determinations or applications of law to fact.
Furthermore, we conclude that Cushman is inappli-
cable. In Cushman, we decided that a veteran’s due
process rights had been violated where it had been estab-
lished that the VA relied on a record improperly altered
by a VA employee. 576 F.3d at 1294, 1300. In contrast,
there is no factual basis in the record for the various

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JACKSON v. WILKIE 7
crimes and misdeeds Jackson claims took place at the VA
and SSA. Cushman is thus inapposite and does not
provide a constitutional basis for Jackson’s claim that the
VA erred in denying him TDIU.
We have considered the remaining arguments, but
conclude that they are without merit.
CONCLUSION
For the foregoing reasons, we dismiss the appeal for
lack of jurisdiction.
DISMISSED
COSTS
Each party shall bear its own costs.

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