                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                        2009-7056

                                 RICHARD A. DANIELS,

                                                             Claimant-Appellant,

                                             v.

                    ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                             Respondent-Appellee.


       Alyson G. Barker, Howrey LLP, of Irvine, California, for claimant-appellant. Of
counsel were Michael J. Stimson; and Pamela S. Kane, of Washington, DC

       Kent C. Kiffner, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and
Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Michael J. Timinski,
Deputy Assistant General Counsel, and Christa A. Childers, Staff Attorney, Office of the
General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge William A. Moorman
                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                        2009-7056


                                 RICHARD A. DANIELS,

                                                             Claimant-Appellant,

                                             v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                             Respondent-Appellee.

           Appeal from the United States Court of Appeals for Veterans Claims in
           07-1317, Judge William A. Moorman.
                           ____________________________

                              DECIDED: August 5, 2009
                           ____________________________


Before LOURIE and RADER, Circuit Judges, and CLARK, District Judge. ∗

PER CURIAM.
                                        DECISION

       Richard A. Daniels appeals from the final decision of the Court of Appeals for

Veterans Claims (the “Veterans Court”) affirming the denial of his requests for higher

disability ratings by the Board of Veterans’ Appeals (the “Board”). Daniels v. Peake,

No. 07-1317, 2008 WL 5111510 (Vet. App. Nov. 24, 2008). Because Daniels’ appeal

raises no issue within our jurisdiction, we dismiss.




       ∗
              Honorable Ron Clark, District Judge, United States District Court for the
Eastern District of Texas, sitting by designation.
                                     BACKGROUND

       Daniels served on active duty in the U.S. Navy from September 1990 to March

2000. He began having back problems in 1993, during service, and was diagnosed with

“sciatica and degenerative disk disease and herniated nucleus pulposus at the L5 area.”

He also began experiencing knee problems, later diagnosed as tendinitis and

patellofemoral syndrome. The Department of Veterans Affairs (the “VA”) regional office

granted service connection for his conditions in July 2001 and assigned a 20% disability

rating for the lower back condition and a 10% disability rating each for the left and right

knee conditions. Daniels submitted a notice of disagreement in June 2002, asserting

that he was entitled to higher disability ratings. In November 2002, the regional office

increased the disability rating for his back condition to 40%.

       On appeal, the Board determined that the VA had complied with its duties to

notify and assist Daniels under 38 U.S.C. §§ 5103 and 5103A. With respect to his lower

back condition, the Board noted that the VA had amended the rating criteria for

musculoskeletal injuries of the spine during the period of Daniels’ appeal.           After

evaluating the evidence of record for his claim, relying primarily on an August 2004 VA

medical examination, the Board determined that Daniels was not entitled to a disability

rating higher than 40% under both the new and old rating criteria. The Board also

determined that Daniels could not receive disability ratings higher than 10% for his knee

conditions.

       Daniels appealed to the Veterans Court, arguing that the Board had failed to

ensure that the VA complied with its duty to assist. He asserted that because he had

informed the VA that his back and knee conditions had worsened since the August 2004



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                                         -2-
examination, he was entitled to a new examination. Daniels also argued that the Board

failed to provide an adequate statement of the reasons or bases for its decision

because it did not address the former rating criteria applicable to his back disability. On

November 24, 2008, the Veterans Court concluded that none of the evidence Daniels

pointed to—a primary care report from several weeks after the August 2004 VA medical

examination, the July 2005 MRI results, and an August 2005 Social Security

Administration disability report—nor the mere passage of time could have reasonably

apprised the VA that his condition had materially worsened. The Veterans Court also

determined that even if the Board had applied the former criteria to his claim, he would

not have been entitled to a higher rating because the 40% disability rating that Daniels

received was already the maximum authorized under the former criteria.

       Daniels timely appealed the Veterans Court’s decision to this court. We have

jurisdiction pursuant to 38 U.S.C. § 7292.

                                       DISCUSSION

       The scope of our review in an appeal from a decision of the Veterans Court is

limited to the “validity of a decision of the [Veterans Court] on a rule of law or of any

statute or regulation . . . or any interpretation thereof (other than a determination as to a

factual matter) that was relied on by the [Veterans Court] in making the decision.” 38

U.S.C. § 7292(a). We must decide “all relevant questions of law” and must set aside

any regulation or interpretation thereof “other than a determination as to a factual

matter” that we find “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a



2009-7056
                                         -3-
statutory right; or (D) without observance of procedure required by law.” 38 U.S.C.

§ 7292(d)(1). Except for an appeal that presents a constitutional issue, we may not

review “(A) a challenge to a factual determination, or (B) a challenge to a law or

regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).

       In the instant action, Daniels fails to provide any argument that can serve as a

basis for our jurisdiction. Although he indicates in his informal brief that the Veterans

Court’s decision involved the validity or interpretation of a statute or regulation, he does

not then elaborate what statute, regulation, or rule of law relied upon by the Veterans

Court was involved that could provide the basis for our jurisdiction or raise any legal

arguments whatsoever in his appeal. Daniels also concedes that the Veterans Court

decision did not decide any constitutional issues. What we can glean from Daniels’ brief

is that he argues that he should have received higher disability ratings. These are

factual determinations or applications of law to fact, and we lack jurisdiction to review

any facts or application of law or regulation to fact.           38 U.S.C. § 7292(d)(2).

Additionally, we do not have jurisdiction to address his sole remaining argument, that

the VA is not taking care of his medical needs, since that argument also presents an

issue of application of law to fact.

       Thus, Daniels’ appeal does not challenge the validity of any statute or regulation

or raise any constitutional issue that could form the basis for our jurisdiction.

Accordingly, we dismiss.

                                         COSTS

       No costs.




2009-7056
                                         -4-
