Bruce A. Miller v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRUCE A. MILLER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7085
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1291, Judge William A. Moor-
man.
______________________
Decided: May 9, 2014
______________________
P ETER J. CORCORAN , III, Antonelli, Harrington &
Thompson LLP, argued for claimant-appellant. With him
on the brief was ERIC S. SCHLICHTER , Winston & Strawn
LLP, of Houston, Texas.
J AMES R. SWEET , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. On the brief were S TUART F. D ELERY , Assistant
Attorney General, BRYANT G. SNEE, Acting Director,

-- 1 of 5 --

MILLER v. SHINSEKI 2
MARTIN F. HOCKEY , Assistant Director, and N ICHOLAS
J ABBOUR , Trial Attorney. Of counsel on the brief were
D AVID J. BARRANS , Deputy Assistant General Counsel,
and AMANDA R. BLACKMON, Staff Attorney, United States
Department of Veterans Affairs, of Washington, DC.
______________________
Before REYNA, MAYER , and CHEN, Circuit Judges.
P ER CURIAM .
Bruce A. Miller appeals a final decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming a decision by the Board of Veterans’
Appeals (“board”) denying referral for an extra-schedular
rating for otitis media. See Miller v. Shinseki, No. 11-
1291, 2012 WL 3711922 (Vet. App. Aug. 29, 2012) (“Veter-
ans Court Decision”). We dismiss for lack of jurisdiction.
The scope of our review of decisions from the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. We
have jurisdiction to review such decisions with respect to
a “challenge to the validity of any statute or regulation or
any interpretation thereof.” Id. § 7292(c). We are pre-
cluded, however, from reviewing factual determinations
or the application of law to fact “[e]xcept to the extent
that an appeal . . . presents a constitutional issue.” Id.
§ 7292(d)(2); see Conway v. Principi, 353 F.3d 1369, 1372
(Fed. Cir. 2004).
On appeal, Miller argues that he is entitled to referral
for an extra-schedular rating for chronic otitis media for
the period from May 28, 1999 to April 18, 2001. He
contends that the board misinterpreted this court’s deci-
sion in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.
Cir. 2001), when it determined that referral for an extra-
schedular rating was unwarranted. In Miller’s view,
Roberson required the board to consider his entitlement to
an extra-schedular rating under 38 C.F.R. § 3.321(b)(1),
even though he did not specifically request such a rating.

-- 2 of 5 --

MILLER v. SHINSEKI 3
The board, however, did in fact consider whether Miller
was entitled to referral for an extra-schedular rating for
chronic otitis media. A. 25. It noted that “[i]n exceptional
cases, where schedular evaluations are found to be inade-
quate, the [Regional Office] or Board may refer a claim”
for consideration, pursuant to section 3.321(b)(1), for
evaluation for an extra-schedular rating. A. 24. The
board determined, however, that Miller’s “symptomatolo-
gy and limitation of functioning [were] reasonably con-
templated by the rating schedule” and that there was “no
evidence that his otitis media ha[d] independently caused
marked interference with his employment . . . beyond that
contemplated by his assigned 10 percent schedular rat-
ing.” A. 25. The board’s conclusion that the rating sched-
ule adequately addressed Miller’s disability and that his
chronic otitis media did not cause marked interference
with his ability to maintain employment is a factual
determination which we lack jurisdiction to review. See
Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010)
(emphasizing that this court lacks authority to review the
board’s “evaluation and weighing of evidence”); see also
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997)
(explaining that the board has “authority to discount the
weight and probity of evidence in the light of its own
inherent characteristics and its relationship to other
items of evidence”).
Miller also asserts that the board failed to comply
with 38 U.S.C. § 7104(d)(1) by “ignor[ing]” evidence
supporting his claim of unemployability in the period
between May 28, 1999 and April 18, 2001. Simply be-
cause the board did not discuss every piece of evidence in
the record, however, does not establish that it did not
consider such evidence in determining that Miller’s chron-
ic otitis media—which was the only condition for which he
had been granted service connection prior to April 2001—
did not cause a marked interference with employment.
See Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000)

-- 3 of 5 --

MILLER v. SHINSEKI 4
(“[A]bsent specific evidence indicating otherwise, all
evidence contained in the record at the time of the [Re-
gional Office’s] determination of the service connection
must be presumed to have been reviewed by the Depart-
ment of Veterans Affairs, and no further proof of such
review is needed.”). While the board’s decision does not
specifically discuss all of the evidence presented by Miller,
“[t]here is a presumption that [the Department of Veter-
ans Affairs] considered all of the evidence of record,” and
the mere failure by the board to discuss a particular piece
of evidence is insufficient to rebut that presumption.
Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
2007).
Miller further contends that the Veterans Court mis-
interpreted section 3.321(b)(1) when it failed to recognize
that “marked interference with employment” and “fre-
quent periods of hospitalization” are two separate factors
that can independently support referral for an extra-
schedular rating. Examination of the Veterans Court’s
decision, however, makes clear that the court did not
interpret, or otherwise elaborate upon the meaning of,
section 3.321(b)(1). Nothing in the court’s opinion sug-
gests that “marked interference with employment” and
“frequent periods of hospitalization” are not separate
factors that can independently support referral for an
extra-schedular rating. To the contrary, the Veterans
Court specifically stated that “[i]f the [Regional Office] or
Board determines first that the schedular evaluation does
not contemplate the claimant’s level of disability and
symptomatology, and next that the disability picture
exhibits other related factors such as marked interference
with employment or frequent periods of hospitalization,
then the case must be referred to an authorized official to
determine whether, to accord justice, an extra-schedular
rating is warranted.” Veterans Court Decision, 2012 WL
3711922, at *2 (emphasis added).

-- 4 of 5 --

MILLER v. SHINSEKI 5
Miller’s appeal—although framed as a challenge to le-
gal determinations made by the board and the Veterans
Court—in reality presents only challenges to factual
determinations and the application of settled law to the
facts of his case. Accordingly, we dismiss for lack of
jurisdiction.
DISMISSED

-- 5 of 5 --