NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOSEPH A. WADE,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

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

______________________ 

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant. 

 KELLY A. KRYSTYNIAK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for respondent-appellee. Also 

represented by MARTIN F. HOCKEY, JR., ROBERT EDWARD 

KIRSCHMAN, JR., CHAD A. READLER; AMANDA BLACKMON,
2 WADE v. WILKIE

BRIAN D. GRIFFIN, Office of General Counsel, United 

States Department of Veterans Affairs, Washington, DC. 

______________________ 

Before PROST, Chief Judge, WALLACH and HUGHES,

Circuit Judges.

PROST, 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 misinterpreted 38 C.F.R. § 4.16(a). Section 4.16(a) provides the 

standard for granting TDIU and states that a total disability 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-connected disabilities,” provided the veteran’s 

disability rating satisfies certain percentage threshold 

requirements. 38 C.F.R. § 4.16(a). 

Mr. Wade argues that the Veterans Court misinterpreted § 4.16(a) by considering evidence of whether he 

could perform sedentary work. In reviewing the Board’s 

decision, the Veterans Court considered 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 

mental status examination.” J.A. 2 (quoting J.A. 98). The 

Board also relied on Mr. Wade’s thirty years of work 

history and his educational background, including the fact 

that he had obtained a GED. J.A. 98–99; see J.A. 3 (Veterans Court noting that “[t]he Board repeatedly acknowledged 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 substan-
WADE v. WILKIE 3

tially gainful employment consistent with his education 

and history.’” (quoting J.A. 99)).

This court’s jurisdiction to review Veterans Court decisions is limited. We may review “the validity of a decision . . . 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). 

Absent a constitutional issue, however, we may not review the Veterans Court’s factual findings or its application 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 concerning the proper legal interpretation of 38 C.F.R. § 4.16(a), 

his argument is really about the Board’s factual determinations and the sufficiency of the evidence leading to the 

Board’s TDIU decision—as well as the Veterans Court’s 

review of that decision. Such issues are beyond this 

court’s limited jurisdiction over Veterans Court decisions. 

We therefore dismiss this appeal for lack of jurisdiction.

DISMISSED

COSTS

The parties shall bear their own costs.