Grant v. Nicholson , 177 F. App'x 976 ( 2006 )

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
05-7203
DONALD GRANT,
Claimant-Appellant,
v.
R. James Nicholson,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
DECIDED: April 14, 2006
__________________________
Before MICHEL, Chief Judge, NEWMAN and MAYER, Circuit Judges.
PER CURIAM.
Mr. Donald E. Grant appeals the decision of the Court of Appeals for Veterans
Claims affirming the termination of his non-service-connected pension benefits. Because
this court lacks jurisdiction to review nonconstitutional, factual determinations, in this case
whether Mr. Grant is unemployable due to various injuries and afflictions, the appeal is
dismissed.
ANALYSIS
Mr. Grant, who was working as a truck driver, was assaulted in March 1991. He was
struck on the head and his ankle was broken. He sustained a subdural hematoma, had
hypertension, and had pain while walking or standing on his ankle after it was repaired with
a screw. In addition, Mr. Grant had complaints of headaches, dizziness, and weakness.
In 1993, a hearing officer gave Mr. Grant a non-service-connected pension,
evaluating him at a 40% disability rating based on hypertension, postoperative subdural
hematoma, and peripheral neuropathy of the left and right legs. An extraschedular
evaluation was given according to 38 C.F.R. §3.321(b)(2) (for a veteran who is "found to be
unemployable by reason of his or her disability, age, occupational background and related
factors . . . .").
Mr. Grant reported working for a taxi cab service starting in September 1999,
working 3 to 5 days or half-days per week. In 2000 he reported a gross income of $35,576,
but claimed expenses of $26,000 for lease of the taxi and $9,000 in fuel, with a net
operating loss of $770 for the year. In the fall of 2001, a rating officer terminated his
pension benefits on the basis that Mr. Grant had demonstrated an ability to obtain and
maintain gainful employment.
The VA provided various medical evaluations, and in January 2003 the Board found
that Mr. Grant was 30% disabled, but that he was able to maintain gainful employment.
The Board affirmed the termination of pension benefits.
Mr. Grant appealed to the Court of Appeals for Veterans Claims, pointing to the
evidence before the regional office that he is unable to drive for more than 3-4 hours per
day and "if he drives for too long, he will fall asleep while driving," and that he has
05-7203 2
dizziness. The court analyzed the evidence, and reviewed whether his part-time self-
employment driving a cab is the type of "marginal employment" contemplated in 38 C.F.R.
§4.17(a) ("Marginal employment, for example, as a self-employed farmer or other person,
while employed in his or her own business, or at odd jobs or while employed at less than
half the usual remuneration will not be considered incompatible with a determination of
unemployability, if the restriction, as to securing or retaining better employment, is due to
disability"). Applying this regulation, the Court of Appeals for Veterans Claims concluded
that Mr. Grant had not demonstrated unemployability.
We cannot review factual determinations, or application of the law to facts. We have
reviewed whether the court correctly interpreted the statute and regulations concerning
"marginal employment" and other legal provisions related to Mr. Grant's arguments that the
medical examinations he received were inadequate and that the Board and the court did
not consider certain relevant factors and did not take into account his complete physical
examination and his type of earning and wages. The issues raised by Mr. Grant are all
factual, and the finding by the Court of Appeals for Veterans Claims that Mr. Grant's work
activity shows that he is employable is a factual determination, and not reviewable by this
court.
Because we are without jurisdiction to review the appeal of Mr. Grant, the appeal is
dismissed.
No costs.
05-7203 3