NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-7203

DONALD GRANT, Claimant-Appellant,

v. R. James Nicholson, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee.

__________________________ DECIDED: April 14, 2006

__________________________

Before MICHEL, Chief Judge , NEWMAN and MAYER, Circuit Judges

. PER CURIAM.

Mr. Donald E. Grant appeals the decision of the Court of Appeals for Veterans Claims affirming the termination of his non-se rvice-connected pension benefits. Because this court lacks jurisdiction to review nonconsti tutional, factual determinat ions, in this case whether Mr. Grant is unemployable due to vari ous injuries and afflictions, the appeal is dismissed

.05-7203 2 ANALYSIS Mr. Grant, who was working as a truck driver , was assaulted in March 1991. He was struck on the head and his ankle was broken. He sustained a subdural hematoma, had hypertension, and had pain while walking or st anding on his ankle after it was repaired with a screw. In addition, Mr. Grant had compla ints of headaches, dizziness, and weakness. In 1993, a hearing officer gave Mr. Gr ant a non-service-connected pension, evaluating him at a 40% disability rating bas ed on hypertension, po stoperative subdural hematoma, and peripheral neuropat hy of the left and right legs. An extraschedular evaluation was given according to 38 C.F.R. §3. 321(b)(2) (for a veteran who is "found to be unemployable by reason of his or her disab ility, age, occupational background and related factors . . . ."). Mr. Grant reported working for a taxi c ab service starting in September 1999, working 3 to 5 days or half-days per week. In 2000 he reported a gross income of $35,576, but claimed expenses of $26,000 for lease of the taxi and $9,000 in fuel, with a net operating loss of $770 for the year. In the fa ll of 2001, a rating officer terminated his pension benefits on the basis that Mr. Grant had demonstrated an ability to obtain and maintain gainful employment. The VA provided various medical evaluati ons, and in January 2003 the Board found that Mr. Grant was 30% disabl ed, but that he was able to maintain gainful employment. The Board affirmed the termination of pension benefits. Mr. Grant appealed to the Court of Appeals for Veterans Claims, pointing to the evidence before the regional office that he is unable to drive for more than 3-4 hours per day and "if he drives for too long, he will fall asleep while driving," and that he has05-7203 3 dizziness. The court analyzed the evidence, and reviewed whether his part-time selfemployment driving a cab is t he type of "marginal employment " contemplated in 38 C.F.R. §4.17(a) ("Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her ow n business, or at odd jobs or while employed at less than half the usual remuneration will not be consi dered incompatible wit h a determination of unemployability, if the restricti on, as to securing or retaining better employment, is due to disability"). Applying this regulation, the C ourt of Appeals for Veterans Claims concluded that Mr. Grant had not dem onstrated unemployability. We cannot review factual dete rminations, or application of the law to facts. We have reviewed whether the court correctly interpre ted the statute and regul ations concerning "marginal employment" and other legal provisions related to Mr. Grant's arguments that the medical examinations he received were i nadequate and that the Boar d and the court did not consider certain relevant factors and did not take into account his complete physical examination and his type of earning and wages. The issues raised by Mr. Grant are all factual, and the finding by the Court of Appeals for Veterans Claims that Mr. Grant's work activity shows that he is empl oyable is a factual determination, and not reviewable by this
court. Because we are without jurisdiction to re view the appeal of Mr. Grant, the appeal is dismissed. No costs.