N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

JOSEPH A. WADE, Claimant

- Appellant

v.

ROBERT WILKIE , SECRETARY OF VETERAN S AFFAIRS, Respondent

- Appellee

______________________

2017

- 2329

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 16

- 1450, Senior Judge Alan G. Lance

, Sr.

______________________

Decided: August 20, 2018

______________________

K ENNETH M. C ARPENTER , Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant

- appellant.

K ELLY A. K RYSTYNIAK , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent

- appellee. Also represented by M ARTIN F. H OCKEY , J R ., R OBERT E DWARD K IRSCHMAN , J R ., C HAD A. R EADLER ; A MANDA B LACKMON ,WADE v. WILKIE 2

B RIAN D. G RIFFIN , Office of General Counsel, United States Department of Veterans Affairs , Washington, DC

.

______________________
Before P ROST , Chief Judge, W ALLACH and H UGHES , Circuit Judges.

P ROST , Chief Judge

. Appellant Joseph A. Wade appeals a decision of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans ’ Appeals (“Board ” ) denying entitlement to a total disability rating based on individual unemployability (“TDIU”)

. Mr. Wade argues that the Veterans Court misinte rpreted 38 C.F.R. § 4.16(a ). Section 4.16(a) provides the standard for granting TDIU and states that a total dis ability rating may be assigned where the scheduled rating is less than 100 % and the veteran is “unable to secure or follow a substantially gainful occupation as a result of service

- connecte d disabilities,” provided the veteran’s disability rating satisfies certain percentage threshold require ments. 38 C.F.R. § 4.16(a).

Mr. Wade argues that the Veterans Court misinte rpreted § 4.16(a) by considering evidence of whether he could perform sedentary work. In reviewing the Board’s decision, the Veterans Court consider ed the Board’s reliance on medical opinions that Mr. Wade was “able to seek and maintain substantially gainful sedentary

- type employment, based on the data from his history and
ment al status examination.” J.A. 2 (quoting J.A. 98). T he Board also relied on Mr. Wade’s thirty years of work history and his educational background, including the fact that he had ob tained a GED. J.A. 98

– 99 ; see J.A. 3 ( Ve terans Court noting that “ [t] he B oard repeatedly acknow ledged that [ Mr. Wade] obtained his GED and worked in a steel mill for 30 years before it found that the evidence does not reveal ‘ an inability to obtain and retain substa n-WADE v. WILKIE 3

tially gainful employment consistent with his education and hi story.’” (quoting J.A. 99)).

This court’s jurisdiction to review Veterans Court d ecisions is limited . We may review “ the validity of a dec ision

. . . 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 [Vete rans] Court in making the decision.” 38 U.S.C. § 7292(a). Absent a constitutional issue, however, we may not r eview the Veterans Court’s fact ual findings or its applic ation of law to facts. Id. § 7292(d); Singleton v. Shinseki

, 659 F.3d 1332, 1334 (Fed. Cir. 2011).
Although Mr. Wade frames his appeal as one concer ning the proper legal interpretation of 38 C.F.R. § 4.16(a), his argument is really about the Board’s factual determ inations and the sufficiency of the evidence leading to the Board’s TDIU decision —a s well as the Veterans Court’s review of that decision. Such issues are beyond this court’s limited jurisdiction over Veterans Court deci sions. We therefore dismiss this appeal for lack of jurisdiction.

DISMISSED

C OSTS The parties shall bear their own costs.