NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

TIMOTHY A. GARLAND,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-1727

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-4525, Judge Joseph L. Toth.

______________________ 

Decided: December 9, 2021 

______________________ 

TIMOTHY A. GARLAND, McDonough, GA, pro se.

 DANIEL HOFFMAN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by 

BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., LOREN MISHA 

PREHEIM; AMANDA BLACKMON, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Case: 21-1727 Document: 18 Page: 1 Filed: 12/09/2021
2 GARLAND v. MCDONOUGH

Before LOURIE, CLEVENGER, and PROST, Circuit Judges.

PER CURIAM. 

Timothy A. Garland appeals the decision of the U.S. 

Court of Appeals for Veterans Claims (“Veterans Court”) 

affirming the Board of Veterans’ Appeals’ (“Board”) denial 

of his claim for a disability rating greater than 20% for service-connected low-back disability. See Garland v. Wilkie, 

No. 19-4525, 2020 WL 6324737 (Vet. App. Oct. 29, 2020). 

For the reasons below, we dismiss for lack of jurisdiction. 

BACKGROUND

Mr. Garland is a veteran who served in the U.S. Army 

from 1980 until 1983, when he was medically discharged 

for persistent low-back pain. At that time, the Department 

of Veterans Affairs (“VA”) granted service connection for 

low-back disability (specifically, degenerative arthritis of 

the spine) and assigned a 10% rating. S.A. 1.1

In July 2010, Mr. Garland filed a claim for entitlement 

to an increased rating for his low-back disability. In 

June 2011, following a VA examination, the relevant VA 

regional office (“RO”) denied Mr. Garland’s claim and 

maintained the 10% rating. S.A. 2, 6, 8. Mr. Garland appealed the RO’s decision to the Board and, in September 2016, testified before the Board, contending (through 

counsel) that he was entitled to a higher rating for his lowback disability because he has rhabdomyolysis, a condition 

affecting muscle tissue and often causing kidney damage. 

See S.A. 2, 22–23. In November 2017, the Board acknowledged Mr. Garland’s “assert[ion] that he should be service 

connected for rhabdomyolysis” but referred that issue “to 

the RO for any appropriate development.” S.A. 15. In that

1 “S.A.” refers to the supplemental appendix filed 

with the government’s brief. 

Case: 21-1727 Document: 18 Page: 2 Filed: 12/09/2021
GARLAND v. MCDONOUGH 3

same November 2017 decision, the Board separately remanded Mr. Garland’s claim for entitlement to a rating 

greater than 10% for his low-back disability to the RO for 

additional development and action. S.A. 15–17. 

In March 2019, after further evidentiary development 

and adjudication by the RO, and “[b]ased on the evidence 

of record,” the Board granted Mr. Garland “a 20 percent 

rating, but no higher, for the entire appeal period” for his 

low-back disability, i.e., his “service-connected degenerative joint disease of the lumbar spine.” S.A. 5–6, 8; see

S.A. 6–11. Mr. Garland then appealed to the Veterans 

Court on the basis that the Board (in its March 2019 decision) improperly failed to address his contentions regarding rhabdomyolysis. See S.A. 1. The Veterans Court 

affirmed the Board’s decision, concluding that Mr. Garland 

failed to “demonstrate[] that these [rhabdomyolysis] issues 

were before the Board” and that therefore the Board wasn’t 

required to discuss them. Garland, 2020 WL 6324737, 

at *1. The court explained that the Board “is unable to act 

on a ‘matter’ absent an appealable, binding RO decision 

that is adverse to the claimant,” id. at *2 (cleaned up), and 

determined that here there was no such RO decision as to 

rhabdomyolysis because Mr. Garland’s “new and separate 

claim for service connection for rhabdomyolysis . . . had yet 

to be decided by firstline adjudicators,” see id. Mr. Garland 

now appeals the Veterans Court’s decision. 

DISCUSSION

We have limited jurisdiction to review decisions of the 

Veterans Court. Under 38 U.S.C. § 7292(d)(2), except to 

the extent that an appeal 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.” We have jurisdiction, however, to “decide all relevant questions of law.” Id.

§ 7292(d)(1). We conclude that we lack jurisdiction to review any of the issues Mr. Garland raises. 

Case: 21-1727 Document: 18 Page: 3 Filed: 12/09/2021
4 GARLAND v. MCDONOUGH

First, Mr. Garland argues that the Board “fail[ed] to 

address whether a higher rating was warranted for a lower 

back disability based on extra-schedular consideration of 

[his] rhabdomyolysis symptomatology.” Appellant’s Br. 2. 

But the Veterans Court determined that the issue of rhabdomyolysis was not properly before the Board because

Mr. Garland’s request for service connection for rhabdomyolysis was a new claim that needed to be addressed by the 

RO in the first instance. Garland, 2020 WL 6324737, at *2. 

In other words, the Veterans Court found that “the issue of 

service connection for rhabdomyolysis” “was distinct from 

the low back claim.” Id. This “interpretation of the contents of a claim for benefits” is a factual issue over which 

we lack jurisdiction.2 Ellington v. Peake, 541 F.3d 1364, 

1371–72 (Fed. Cir. 2008). 

Second, Mr. Garland appears to challenge the Veterans 

Court’s determination that the Board’s failure to consider 

his kidney condition was harmless. See Appellant’s 

Br. 2–3. On this point, the Veterans Court simply explained that Mr. Garland had “attributed his kidney condition to rhabdomyolysis” and that because “service 

connection for rhabdomyolysis has yet to be established, 

any error in the Board’s failure to consider [the kidney condition] is harmless.” Garland, 2020 WL 6324737, at *2. In 

making this determination, the Veterans Court merely 

considered the facts and applied the relevant law to those 

facts. Accordingly, our jurisdictional statute precludes appellate review of this issue. 38 U.S.C. § 7292(d)(2); see 

2 The Veterans Court further found that Mr. Garland took “no action” “to fill out the formal application for 

service connection to formally initiate the rhabdomyolysis 

claim referred by the Board.” Garland, 2020 WL 6324737, 

at *2. According to the government, Mr. Garland remains 

eligible to file a formal application with the RO for compensation for rhabdomyolysis. See Appellee’s Br. 9. 

Case: 21-1727 Document: 18 Page: 4 Filed: 12/09/2021
GARLAND v. MCDONOUGH 5

Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 

2007) (explaining that § 7292(d)(2) “prevents us from reviewing [claimant’s] contentions regarding actual prejudice”). 

CONCLUSION

We have considered Mr. Garland’s remaining arguments but find them unpersuasive. For the foregoing reasons, we dismiss this appeal for lack of jurisdiction. 

DISMISSED

COSTS

No costs. 

Case: 21-1727 Document: 18 Page: 5 Filed: 12/09/2021