       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

             RICHARD L. SUDRANSKI,
                Claimant-Appellant,

                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2011-7066
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-2374, Judge William A.
Moorman.
             ___________________________

                 Decided: June 2, 2011
             ___________________________

   RICHARD L. SUDRANSKI, of Roanoke, Virginia, pro se.

    KENT C. KIFFNER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and STEVEN
SUDRANSKI   v. DVA                                      2


J. GILLINGHAM, Assistant Director. Of counsel on the
brief was DAVID J. BARRANS, Deputy Assistant General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
              __________________________

    Before BRYSON, DYK, and PROST, Circuit Judges.
PER CURIAM.

                        DECISION

    Richard L. Sudranski filed a claim contending that
the Secretary of Veterans Affairs committed clear and
unmistakable error in a 1986 rating decision. That claim
was denied by the Board of Veterans’ Appeals, and the
Board’s decision was affirmed by the United States Court
of Appeals for Veterans Claims (“the Veterans Court”).
Mr. Sudranski has appealed to this court. We affirm.

                      BACKGROUND

     Mr. Sudranski served on active duty in the U.S. Navy
from 1969 to 1971. He filed a claim for “nerves” in 1977.
When that claim was denied in 1978, he filed a Notice of
Disagreement (“NOD”). In 1982 the Board granted Mr.
Sudranski service connection for an acquired psychiatric
disorder. The regional office subsequently assigned him a
10% rating for agitated depression with paranoid idea-
tion, effective from 1977; it designated his disability as
falling under diagnostic code 9499-9405. The regional
office also assigned him a 30% rating for a non-service-
connected ineffectual or avoidant personality.

    Mr. Sudranski appealed the service-connected rating
to the Board. In January 1986, the Board awarded him a
50% rating for paranoid schizophrenia under diagnostic
3                                          SUDRANSKI   v. DVA


code 9203. When evaluating his appeal, the Board did not
apply 38 C.F.R. § 4.127 (1986). That regulation provided
that although the rating schedule does not recognize
personality disorders as disabilities, it does recognize
“properly diagnosed superimposed psychotic reactions
developing after enlistment,” including “personality
disorder with psychotic reaction.” The Board also did not
evaluate his eligibility for total disability based on indi-
vidual unemployability (“TDIU”) or a total disability
rating for pension purposes, because those issues had not
been properly certified for appeal. The Board therefore
referred those issues to the regional office.

    The regional office promptly implemented the Board’s
decision in January 1986 by awarding Mr. Sudranski a
50% service-connected disability rating, but it again
designated his disability as falling within non-psychotic
diagnostic code 9499-9405 for agitated depression with
paranoid ideation. Mr. Sudranski did not appeal that
January 1986 rating decision, and it became final.

     In the January 1986 rating decision, the regional of-
fice also considered Mr. Sudranski’s eligibility for a total
disability rating. It denied his claim for TDIU because
his service-connected disability was rated at only 50%,
which is below the 60% threshold for TDIU based on a
single disability. However, it rated him as permanently
and totally disabled for pension purposes based on his
service-connected disability rating of 50% and his non-
service-connected disability rating of 30%.

    Mr. Sudranski appealed the TDIU determination to
the Board and also sought an increased rating for service-
connected disability based on new evidence. In 1990, the
Board increased his service-connected disability for
paranoia to 100%. That rating decision was made effec-
SUDRANSKI   v. DVA                                         4


tive only from 1986 because the previous Board decision
granting a 50% rating had become final. Because the
100% rating exceeded the TDIU threshold for a single
service-connected disability, the Board also awarded Mr.
Sudranski a TDIU rating as of 1986.

     In February 2002, Mr. Sudranski filed a claim with
the regional office alleging that there was clear and
unmistakable error (“CUE”) in the January 1986 regional
office rating decision. The regional office interpreted that
CUE claim in part to allege CUE in the earlier January
1986 Board decision, and it referred that portion of the
claim to the Board. The regional office retained the
portion of Mr. Sudranski’s claim alleging CUE in the
regional office’s January 1986 decision.

    In June 2003, Mr. Sudranski submitted a letter to the
Board stating that he was not claiming CUE in the Janu-
ary 1986 Board decision. The Board treated that letter as
a withdrawal of his CUE claim. Accordingly, in April
2004, the Board dismissed his CUE claim without preju-
dice. Mr. Sudranski filed a motion to reconsider the
Board’s dismissal order, but the Board denied that motion
in December 2004.

    In July 2004, the regional office rejected Mr. Sudran-
ski’s claim that it committed CUE in its January 1986
decision that awarded him a 50% rating based on non-
psychotic diagnostic code 9499-9405 instead of psychotic
diagnostic code 9203. At that time, the regional office
responded to three specific allegations of error that Mr.
Sudranski had made at various times in correspondence
with the regional office. First, the regional office rejected
his argument that the Board had granted service connec-
tion for his non-service-connected disability for ineffectual
or avoidant personality rated at 30% under diagnostic
5                                          SUDRANSKI   v. DVA


code 9499-9404. Second, the regional office rejected his
argument that it had effectively severed his service con-
nection for psychosis by assigning the wrong diagnostic
code to his condition. Third, it explained that his unem-
ployability for TDIU purposes was not established solely
by his service-connected disability, a position that Mr.
Sudranski took issue with based on 38 C.F.R. § 3.341(a)
(1986). 1

    In 2004, Mr. Sudranski filed a detailed NOD with the
regional office, seeking to appeal the denial of his CUE
claim based on all three arguments he had raised with
the regional office. The regional office did not issue a
Statement of the Case (“SOC”) for nearly a year. Mr.
Sudranski petitioned the Veterans Court in 2005 for a
writ of mandamus to order the regional office to issue an
SOC. When the Veterans Court directed the Secretary of
Veterans Affairs to respond to the petition, the Secretary
responded by issuing an SOC. Mr. Sudranski objected to
that SOC before the Veterans Court because it covered

    1    Mr. Sudranski argued that TDIU could be estab-
lished if his service-connected disabilities were “sufficient
to produce unemployability,” 38 C.F.R. § 3.341(a) (1986).
That statement of the law is correct; it is also consistent
with the legal principle applied by the regional office. The
regional office did not state that his unemployability had
to be based solely on his service-connected disability.
Instead, it stated that “[w]hen [his] service connected
disability was considered apart from [his] non-service
connected disabilities [he was] not shown to be totally
disabled solely due to [his] service connected disability.”
In other words, the regional office recognized that his
service-connected disability had been evaluated as insuf-
ficient, by itself, to render him unemployable. To the
extent that Mr. Sudranski takes issue with that determi-
nation, we do not address that question because it pre-
sents a factual issue that falls outside of our jurisdiction.
See 38 U.S.C. § 7292(a), (d)(2).
SUDRANSKI   v. DVA                                        6


only his contention that the regional office had effectively
severed his service connection for psychosis by assigning
the incorrect diagnostic code. The Veterans Court elected
not to review Mr. Sudranski’s objection to the scope of the
SOC, however, stating “that matter is more appropriately
raised in the administrative proceedings, and the peti-
tioner has not demonstrated a lack of adequate alterna-
tive means to obtain the relief sought.” Sudranski v.
Nicholson, No. 05-2642, 2005 WL 4739708, at *2 (Vet.
App. Dec. 19, 2005).

     Mr. Sudranski pursued his CUE claim with regard to
the 1986 regional office decision based on the regional
office’s failure to apply the correct diagnostic code, the
only ground available given the limited SOC provided by
the Secretary. He continued to allege error with regard to
the limited scope of that SOC before the regional office
and the Board during that CUE proceeding. He also
requested a Supplemental Statement of the Case
(“SSOC”) from the regional office and moved the Board to
direct the regional office to issue an SSOC.

    None of his attempts to expand the scope of the SOC
or procure an SSOC was successful. Nonetheless, he
continued to present arguments to the Board and the
Veterans Court covering all three arguments that he had
identified in his 2004 NOD. He did not directly allege
CUE in the 1986 Board decision, but he indirectly chal-
lenged the Board’s failure to apply 38 C.F.R. § 4.127
(1986) by arguing that the regional office should have
given him a higher service rating through application of
that regulation.

    In 2008, the Board denied Mr. Sudranski’s appeal.
The Board indicated that it could not entertain any indi-
rect challenges to the 1986 Board decision because Mr.
7                                          SUDRANSKI   v. DVA


Sudranski had withdrawn his Board CUE claim in 2003,
and the Board had dismissed that claim without preju-
dice. 2 As to the direct challenges to the regional office
decision, the Board held that the regional office was
bound by the 50% rating regardless of which diagnostic
code was attached to that rating, so the outcome with
respect to TDIU eligibility would not have been mani-
festly different, and thus the standard for showing CUE
would not have been met. The Board did not address Mr.
Sudranski’s argument that his ineffectual or avoidant
personality disorder should have been connected to his
service or his argument that the regional office incorrectly
evaluated his eligibility for TDIU under 38 C.F.R. §
3.341(a) (1986).

    Mr. Sudranski appealed from the Board’s decision to
the Veterans Court. The Veterans Court held that Mr.
Sudranski’s arguments that had not been addressed in
the 2008 Board decision were not properly before the
court. Accordingly, the court did not consider his asser-
tion that the Board committed legal error in its 1986
decision, or his arguments addressing his non-service-
connected personality disorder. As to the direct chal-
lenges to the regional office decision, the court agreed
with the Board that in 1986 the regional office was bound
by the 50% rating and that Mr. Sudranski had failed to
show that his TDIU eligibility determination would have
been different if the regional office had used the proper
diagnostic code.




    2   That dismissal without prejudice would, of course,
not preclude Mr. Sudranski from filing a new claim
directly alleging CUE in the 1986 Board decision.
SUDRANSKI   v. DVA                                         8


                        DISCUSSION

     In this court, Mr. Sudranski contends that the re-
gional office erred in 1986 by assigning the non-psychotic
diagnostic code 9499-9405 to his service-connected dis-
ability, when the Board had assigned the psychotic diag-
nostic code 9203 to that disability. If the regional office
had assigned the psychotic diagnostic code, he argues, 38
C.F.R. § 4.127 (1986) would have required the regional
office to consider both his 50% rating for service-
connected psychotic disorder and his 30% rating for non-
service-connected personality disorder as “a single entity.”
Such a single entity rating would have surpassed the 60%
threshold for TDIU based on a single disability, he ar-
gues, and would have resulted in his receiving a TDIU
award from 1977 to 1986.

     As of 1986, section 4.127 of the VA regulations stated
that “personality disorders will not be considered as
disabilities under the terms of the schedule. . . . However,
properly diagnosed superimposed psychotic reactions
developing after enlistment, i.e., . . . personality disorder
with psychotic reaction, are to be considered as disabili-
ties analogous to, and ratable as, schizophrenic reaction,
unless otherwise diagnosed.” That regulation may be
somewhat unclear as to whether a psychotic reaction
superimposed on a personality disorder will be rated as a
single entity or two separate entities if one is service-
connected and the other is not. However, section 3.323 of
the regulations, 38 C.F.R. § 3.323 (1986), provided that
service-connected and non-service-connected disabilities
will be combined only for pension purposes, and not for
compensation purposes. Mr. Sudranski has therefore
failed to show that he would have been eligible for a TDIU
rating before 1986 even if the regional office had assigned
the proper diagnostic code and his disorders had been
9                                         SUDRANSKI   v. DVA


considered as a single entity, because one of those disor-
ders was determined to be not connected to his service. 3
The Veterans Court did not hold differently in Carpenter
v. Brown, 8 Vet. App. 240, 245 (1995), on which Mr.
Sudranski relies. In that case, the court stated only that
in order to be eligible for single-entity treatment, “the
service-connected mental condition must be a psychotic
disorder.” The court did not state that having a service-
connected psychotic disorder was sufficient to require that
a psychotic disorder and a separate personality disorder
be treated as a single disability for TDIU purposes.

    We conclude that Mr. Sudranski did not demonstrate
legal error in the regional office’s assignment of separate
ratings for his psychotic disorder and his personality
disorder. We therefore do not need to consider whether
the Secretary erred in electing not to issue a broader
SOC, because even if the Secretary had issued an SOC of
the sort that Mr. Sudranski wanted, the legal question
before us would have been the same.

    Mr. Sudranski also contends that the Board erred in
1986 by not considering his employability and remanding
the issue of TDIU eligibility to the regional office. We
find no error on that ground. The 1986 Board decision
addressed only the proper rating for Mr. Sudranski’s
service-connected paranoid schizophrenia. It did not
address his TDIU eligibility, because that inquiry turned
on other factors such as the existence of other service-
connected disabilities or Mr. Sudranski’s eligibility for a
TDIU rating under 38 C.F.R. § 4.16(b) (1986). The 1986

    3  In his reply brief in this court, Mr. Sudranski ar-
gues that his non-service-connected disability should have
been treated as connected to his military service. We do
not consider that argument because it raises a factual
question that falls outside our jurisdiction.
SUDRANSKI   v. DVA                                       10


Board decision may have resulted in the regional office’s
concluding that Mr. Sudranski was not eligible for TDIU
before 1986, but that result was due to Mr. Sudranski’s
failure to show that he had another service-connected
disability or that he was eligible for a TDIU rating under
section 4.16(b). We therefore conclude that Mr. Sudran-
ski has failed to point to any reversible error in the deci-
sion of the Veterans Court.

   No costs.

                       AFFIRMED
