Tracy L. Penley v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRACY L. PENLEY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2088
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-8656, Judge Scott Laurer.
______________________
Decided: October 7, 2022
______________________
K ENNETH M. CARPENTER , Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
Also represented by G REGORY MICHAEL RADA, After Service
LLC, Denver, CO.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. B OYNTON, P ATRICIA M. MCC ARTHY , L OREN MISHA
P REHEIM ; AMANDA BLACKMON, BRIAN D. G RIFFIN, Office of
Case: 21-2088 Document: 33 Page: 1 Filed: 10/07/2022

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PENLEY v. MCDONOUGH 2
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before M OORE, Chief Judge, CHEN and STOLL , Circuit
Judges.
MOORE, Chief Judge.
Tracy L. Penley appeals a decision of the United States
Court of Appeals for Veterans Claims affirming the Board
of Veterans’ Appeals’ decision denying her an earlier effec-
tive date for total disability rating based on individual un-
employability (TDIU) benefits. Ms. Penley argues the
Veterans Court incorrectly affirmed the Board’s finding
that the Department of Veterans Affairs (VA) implicitly de-
nied her application for TDIU benefits in its 1999 and 2001
ratings decisions. Except for constitutional issues, we
“may not review . . . a challenge to a law or regulation as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2). We do not have jurisdiction to decide whether
the Veterans Court erred in applying the implicit denial
rule to the facts of this case and therefore dismiss the ap-
peal as to this issue.
Ms. Penley also appeals the Veterans Court’s decision
to not consider her arguments regarding 38 C.F.R.
§ 3.156(b) pursuant to principles of administrative exhaus-
tion. It is undisputed Ms. Penley did not raise any argu-
ment regarding § 3.156(b) to the Board. Appellant’s Br. 16.
The Veterans Court did not abuse its discretion in declin-
ing to decide the argument in the first instance on appeal.
See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000).
We therefore affirm the decision as to this issue.
DISMISSED IN PART AND AFFIRMED IN PART
COSTS
No costs.
Case: 21-2088 Document: 33 Page: 2 Filed: 10/07/2022

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