                 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
                                        06-7057

                                  GEORGE D. JOY,

                                                Claimant-Appellant,

                                           v.

                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                Respondent-Appellee.

                          ___________________________

                          DECIDED: October 6, 2006
                          ___________________________


Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.

PER CURIAM.

                                        DECISION

      George D. Joy appeals from a decision of the Court of Appeals for Veterans

Claims (“Veterans Court”) that affirmed a decision by the Board of Veterans’ Appeals

denying Mr. Joy a disability rating in excess of 20% for chronic lumbar strain with

degenerative disc disease. We affirm.

                                   BACKGROUND

      Mr. Joy served on active duty in the United States Air Force from July 1965 to

January 1969. In February 2000, a regional office of the Department of Veterans Affairs

awarded Mr. Joy service connection for “chronic lumbar strain with degenerative disc
disease L4-L5 and L5-S1.” That condition was assigned a 20% disability rating based

on 38 C.F.R. § 4.71a, Diagnostic Codes 5293-95, and the rating was made effective as

of December 17, 1993. On Mr. Joy’s appeal from the rating decision, the Veterans

Court granted a motion for remand.        On remand, the Board requested additional

development of the record, including additional medical examinations. After completing

the additional medical examinations, the Board concluded that Mr. Joy’s condition did

not warrant a disability rating in excess of 20%. Referring to the relevant Diagnostic

Codes, the Board found that the evidence of record did not show that the disability was

“severe, as would be exemplified by listing of the whole spine, marked limitation of

forward bending, or loss of lateral spine motion.” Nor did the Board find any evidence of

“muscle spasm,” “neurological impairment,” or “episodes during which [Mr. Joy] was

incapacitated.” Mr. Joy appealed that decision to the Veterans Court, arguing that he

was entitled to an increased rating for his lumbar condition and also that he was entitled

to service connection for various other conditions that had not been presented in his

appeal to the Board. The court affirmed the Board’s rating decision and declined to

consider Mr. Joy’s claims of service connection for other conditions.        Mr. Joy now

appeals from that decision.

                                      DISCUSSION

      Mr. Joy raises several arguments in his brief to this court. First, Mr. Joy argues

that the Board erred by focusing exclusively on his ability to bend and flex during a short

medical examination, and by failing to take into account whether he could “repeatedly

perform such activities.”     As a preliminary matter, we disagree with Mr. Joy’s

characterization of the Board’s decision. The Board in this case did not focus solely on




06-7057                                     2
Mr. Joy’s ability to bend and flex during a short medical examination. Rather, pursuant

to Diagnostic Code 5293, the Board considered whether Mr. Joy experienced episodes

of incapacitation, and the Board found no evidence of such episodes. Also, pursuant to

38 C.F.R. §§ 4.40 and 4.45 the Board considered the extent of Mr. Joy’s “functional

impairment” and “fatigability” and concluded that there was no “functional impairment

that is not adequately compensated by th[e] 20 percent rating.” Moreover, to the extent

that Mr. Joy is asking us to review or revise the criteria codified in the Department of

Veterans Affairs rating schedule, we have no authority to do so absent a challenge to

the constitutionality of the rating schedule, which Mr. Joy does not raise in this case.

See Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004) (“The Secretary’s

discretion over the schedule, including procedures followed and content selected, is

insulated from judicial review with one recognized exception limited to constitutional

challenges.”).

       Next, Mr. Joy argues that the Board violated his right to due process by

“excluding” certain documents. There is no indication in the record, however, that the

Board refused to consider any evidence offered by Mr. Joy. Rather, it appears that the

Board considered all available evidence, including the most recent evidence from the

medical examinations the Board requested on remand. Thus, we see no basis for

concluding that the Board failed to consider any evidence bearing on Mr. Joy’s

condition.

       Mr. Joy next argues that the Veterans Court erred by refusing to consider his

claims of service connection for various other injuries. On appeal to the Veterans Court,

Mr. Joy argued that he was entitled to service connection for various disabilities that




06-7057                                    3
were unrelated to his lumbar condition. Those additional claims were not raised before

the Board in this case. The statute that confers jurisdiction on the Veterans Court

provides that the court has the “power to affirm, modify, or reverse a decision of the

Board or to remand the matter as appropriate.” 38 U.S.C. § 7252(a) (emphasis added).

We have interpreted that statute to mean that the “court’s jurisdiction is premised on

and defined by the Board’s decision concerning the matter being appealed.”             See

Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (holding that Veterans Court lacked

jurisdiction to consider a veteran’s claim for reinstatement of unemployability benefits

because the veteran only presented the Board with a separate claim for disability

benefits). Mr. Joy presented the Board with only a request for an increased rating for

his lumbar condition. Accordingly, the Board’s decision was confined to that claim, and

the Veterans Court therefore properly concluded that it had no jurisdiction to consider

claims that were not presented to the Board.

       Finally, Mr. Joy argues that the Board failed to “give the veteran the benefit of the

doubt.” Mr. Joy is presumably referring to the statutory requirement that “[w]hen there is

an approximate balance of positive and negative evidence regarding any issue material

to the determination of a matter, the Secretary shall give the benefit of the doubt to the

claimant.”   38 U.S.C. § 5107(b).       However, the Board in this case did not find an

“approximate balance” of evidence on any material issues in this case. Rather, the

Board found “no evidence” supporting Mr. Joy’s entitlement to a disability rating greater

than 20% for his lumbar condition. Thus, there was no issue on which Mr. Joy was

entitled to the benefit of the doubt.




06-7057                                       4
