Case: 21-1727 Document: 18 Page: 1 Filed: 12/09/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY A. GARLAND,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1727
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4525, Judge Joseph L. Toth.
______________________
Decided: December 9, 2021
______________________
TIMOTHY A. GARLAND, McDonough, GA, pro se.
DANIEL HOFFMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., LOREN MISHA
PREHEIM; AMANDA BLACKMON, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
______________________
Case: 21-1727 Document: 18 Page: 2 Filed: 12/09/2021
2 GARLAND v. MCDONOUGH
Before LOURIE, CLEVENGER, and PROST, Circuit Judges.
PER CURIAM.
Timothy A. Garland appeals the decision of the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”)
affirming the Board of Veterans’ Appeals’ (“Board”) denial
of his claim for a disability rating greater than 20% for ser-
vice-connected low-back disability. See Garland v. Wilkie,
No. 19-4525,
2020 WL 6324737 (Vet. App. Oct. 29, 2020).
For the reasons below, we dismiss for lack of jurisdiction.
BACKGROUND
Mr. Garland is a veteran who served in the U.S. Army
from 1980 until 1983, when he was medically discharged
for persistent low-back pain. At that time, the Department
of Veterans Affairs (“VA”) granted service connection for
low-back disability (specifically, degenerative arthritis of
the spine) and assigned a 10% rating. S.A. 1. 1
In July 2010, Mr. Garland filed a claim for entitlement
to an increased rating for his low-back disability. In
June 2011, following a VA examination, the relevant VA
regional office (“RO”) denied Mr. Garland’s claim and
maintained the 10% rating. S.A. 2, 6, 8. Mr. Garland ap-
pealed the RO’s decision to the Board and, in Septem-
ber 2016, testified before the Board, contending (through
counsel) that he was entitled to a higher rating for his low-
back disability because he has rhabdomyolysis, a condition
affecting muscle tissue and often causing kidney damage.
See S.A. 2, 22–23. In November 2017, the Board acknowl-
edged Mr. Garland’s “assert[ion] that he should be service
connected for rhabdomyolysis” but referred that issue “to
the RO for any appropriate development.” S.A. 15. In that
1“S.A.” refers to the supplemental appendix filed
with the government’s brief.
Case: 21-1727 Document: 18 Page: 3 Filed: 12/09/2021
GARLAND v. MCDONOUGH 3
same November 2017 decision, the Board separately re-
manded Mr. Garland’s claim for entitlement to a rating
greater than 10% for his low-back disability to the RO for
additional development and action. S.A. 15–17.
In March 2019, after further evidentiary development
and adjudication by the RO, and “[b]ased on the evidence
of record,” the Board granted Mr. Garland “a 20 percent
rating, but no higher, for the entire appeal period” for his
low-back disability, i.e., his “service-connected degenera-
tive joint disease of the lumbar spine.” S.A. 5–6, 8; see
S.A. 6–11. Mr. Garland then appealed to the Veterans
Court on the basis that the Board (in its March 2019 deci-
sion) improperly failed to address his contentions regard-
ing rhabdomyolysis. See S.A. 1. The Veterans Court
affirmed the Board’s decision, concluding that Mr. Garland
failed to “demonstrate[] that these [rhabdomyolysis] issues
were before the Board” and that therefore the Board wasn’t
required to discuss them. Garland,
2020 WL 6324737,
at *1. The court explained that the Board “is unable to act
on a ‘matter’ absent an appealable, binding RO decision
that is adverse to the claimant,” id. at *2 (cleaned up), and
determined that here there was no such RO decision as to
rhabdomyolysis because Mr. Garland’s “new and separate
claim for service connection for rhabdomyolysis . . . had yet
to be decided by firstline adjudicators,” see id. Mr. Garland
now appeals the Veterans Court’s decision.
DISCUSSION
We have limited jurisdiction to review decisions of the
Veterans Court. Under
38 U.S.C. § 7292(d)(2), except to
the extent that an appeal presents a constitutional issue,
we may not “review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” We have jurisdiction, how-
ever, to “decide all relevant questions of law.”
Id.
§ 7292(d)(1). We conclude that we lack jurisdiction to re-
view any of the issues Mr. Garland raises.
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4 GARLAND v. MCDONOUGH
First, Mr. Garland argues that the Board “fail[ed] to
address whether a higher rating was warranted for a lower
back disability based on extra-schedular consideration of
[his] rhabdomyolysis symptomatology.” Appellant’s Br. 2.
But the Veterans Court determined that the issue of rhab-
domyolysis was not properly before the Board because
Mr. Garland’s request for service connection for rhabdomy-
olysis was a new claim that needed to be addressed by the
RO in the first instance. Garland,
2020 WL 6324737, at *2.
In other words, the Veterans Court found that “the issue of
service connection for rhabdomyolysis” “was distinct from
the low back claim.”
Id. This “interpretation of the con-
tents of a claim for benefits” is a factual issue over which
we lack jurisdiction. 2 Ellington v. Peake,
541 F.3d 1364,
1371–72 (Fed. Cir. 2008).
Second, Mr. Garland appears to challenge the Veterans
Court’s determination that the Board’s failure to consider
his kidney condition was harmless. See Appellant’s
Br. 2–3. On this point, the Veterans Court simply ex-
plained that Mr. Garland had “attributed his kidney condi-
tion to rhabdomyolysis” and that because “service
connection for rhabdomyolysis has yet to be established,
any error in the Board’s failure to consider [the kidney con-
dition] is harmless.” Garland,
2020 WL 6324737, at *2. In
making this determination, the Veterans Court merely
considered the facts and applied the relevant law to those
facts. Accordingly, our jurisdictional statute precludes ap-
pellate review of this issue.
38 U.S.C. § 7292(d)(2); see
2 The Veterans Court further found that Mr. Gar-
land took “no action” “to fill out the formal application for
service connection to formally initiate the rhabdomyolysis
claim referred by the Board.” Garland,
2020 WL 6324737,
at *2. According to the government, Mr. Garland remains
eligible to file a formal application with the RO for compen-
sation for rhabdomyolysis. See Appellee’s Br. 9.
Case: 21-1727 Document: 18 Page: 5 Filed: 12/09/2021
GARLAND v. MCDONOUGH 5
Newhouse v. Nicholson,
497 F.3d 1298, 1302 (Fed. Cir.
2007) (explaining that § 7292(d)(2) “prevents us from re-
viewing [claimant’s] contentions regarding actual preju-
dice”).
CONCLUSION
We have considered Mr. Garland’s remaining argu-
ments but find them unpersuasive. For the foregoing rea-
sons, we dismiss this appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
