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

06-7010

REALDALIST A. FAHIE, Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

__________________________ DECIDED: May 3, 2005

__________________________

Before NEWMAN, DYK, and PROST, Circuit Judges

. NEWMAN, Circuit Judge

.

Realdalist A. Fahie appeals the decision of the United States Court of Appeals for Veterans Claims (CAVC), affirming the decision of the Board of Vete rans Appeals which denied his claims for: an effective date earlier than August 4, 1995 for his service-connected right-hand disabilities; a ra ting of total disability based on individual unemployability; and an increased disability rati ng for his service-connected right-hand06-7010 2 disabilities. 1 These claims raise no iss ues of statutory or constitutional interpretation. Accordingly, the appeal must be dismissed

. BACKGROUND Mr. Fahie served on active duty in the U. S. Navy from January 1976 to November 1977. While on active duty in 1976, he inju red his right hand and underwent surgery for tendon repair. His separation medi cal examination report indicat ed that at separation from service his right hand was normal, but t hat he had scarring and tendon laceration of the hand. In 1978, the Veterans Administration (VA) awarded him service connection for right-hand laceration and scar and assigned him a 0% disability rating. In April 1983 Mr. Fahie sought a higher rati ng for his right-hand laceration and scar. The VA, acting through the cognizant agency ent ity, requested that Mr. Fahie provide evidence to show that his disability had worsened. The CAVC found no response in the record from Mr. Fahie to that request. In January 1987 Mr. Fahie again applied for an increase in his disability rating. In April 1987 the VA informed Mr. Fahi e that he would be scheduled for a VA medical examination to determi ne the severity of his disability. Mr. Fahie submitted a letter from his physician, but refused to report for a VA medical examination. The VA reviewed the evidence of record, including the physician's statement that Mr. Fahie had provided, and denied the claim. Mr. Fahie did not appeal that decision.

1 Fahie v. Nicholson , No. 00-2286 (Ct. App. Vet. Cl. Aug. 30, 2005).06-7010 3 Seven years later, Mr. Fahie filed another claim for an increased rating for his right-hand disability, which was also denied. Mr. Fahie also sought compensation for a bilateral-eye condition, but the VA ruled t hat the condition was not service connected. On June 23, 1997, Mr. Fahie was given a VA medical examination and, as a result, the VA increased Mr. Fahie's disability rating to 10% and awarded him service connection for a right-hand orthopedic-neurologi cal condition, also rated at 10%. Both ratings were made effective August 4, 1995. On July 25, 1997, Mr. Fahie sought an earlier effective date for his disability rating. He argued that the effective date s hould be November 1977, the date of his separation from service. That claim was denied because Mr. Fahie had not timely appealed the denial of his earlier clai ms, hence the only claim that was deemed still open was the one filed in 1995. In December 1998, Mr. Fahie sued the VA in the United States District Court for the Southern District of New York, claiming that the VA was discriminating against him under the Americans with Disabilities Ac t of 1990. The District Court dismissed the claim for lack of jurisdiction. On October 29, 1999, Mr. Fahie filed a claim for total disability, stating that he was unable to work because of his right-hand conditi on. That claim was denied. Mr. Fahie appealed that decision, and while the appeal wa s pending, the VA informed him that it needed a current VA medical examination to dete rmine the effect of his disability on his ability to work. Mr. Fahie refused to be exami ned, stating that the re cord already contained all of the evidence necessary to adjudicate his claim. In January 2000, the VA scheduled examinations of Mr. Fahie's hand, thumb, and fingers, as we ll as a neurological exam, but he failed to report for any of those examinations.06-7010 4 In June 2000, Mr. Fahie's claims were re manded to the Regional Office for further evaluation, with specific instruct ions to assist him in the proc essing of his claim. Mr. Fahie submitted to a VA neurological examination in Ju ly, 2000, but refused to submit to further testing, which included optometric and laborat ory tests, x-rays, electromyograms, and physical therapy. In August 2000, the VA rece ived a letter from Mr. Fahie in which he stated he would not participate in any additi onal VA medical examinations, and requested that his claims be adjudicated on the evidence of record. The Regional Office denied his claims on August 30, 2000. The agency refused to increase his disability ratings or award an earlier effective dat e. Mr. Fahie appealed to the Board of Veterans Appeals. In September 2000, he contacted t he Regional Office and reiterated that he di d not wish any additional VA examinations in connection with his appeal. On November 3, 2000 the Boar d affirmed the RO's decision. The Board based its decision, in part, on Mr. Fahie's refusal to s ubmit to the tests and examinations that the Regional Office deemed necessary to evaluate his claims, stating: There is no evidence of record indicating that he was not able to travel to the examination, for medical or other reasons . . . . He provided no specific reason for his claimed hardship. More im portantly, he has spec ifically refused to report for additional VA examination and/ or testing because he maintains it was unwarranted and was not ordered by t he Board, which, as noted above, is not the case. Accordingly, the Board concludes that the veteran has not shown good cause for his refusal to report for VA examination and/or testing and that, based on the veteran's refusal to report fo r the VA examinations scheduled in conjunction with his claims for TDIU and increased ratings, his claims must be denied. The Court of Veterans Appeals affirmed, and this appeal followed.06-7010 5 DISCUSSION Mr. Fahie argues that the great weight of the evidence supports his position that he is entitled to a higher disability rating, an earlie r effective date for the ratings he has already been awarded, and a determinat ion that he is totally disabled. He cites the evidence of record that supports these claims and argues t hat there is little or no evidence supporting the government's position. Except for the review of constitutional issues, we "may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as app lied to the facts of a particular case," 38 U.S.C. §7292(d)(2). T he government stresses that Mr. Fahie is challenging the factual determination of the agency, and that such a cha llenge is outside of our jurisdiction. We must agree. Mr. Fahie's claims are essentially that the VA incorrectly evaluated the extent of his disabilities; these are factual det erminations and, by statute, they may not be reviewed here. Mr. Fahie argues that the VA required an excessive number of tests and evaluations before determining the extent of his disability, and that this constituted "grave procedural error." He argues that we have jurisdic tion over such procedural errors, and cites Hayre v. West , 188 F.3d 1327 (Fed. Cir. 1999), overruled on other grounds , Cook v. Principi , 318 F.3d 1334 (Fed. Cir. 2002) ( en banc ). He argues that in Hayre this court reversed a CAVC decision because the VA committed a similarly serious error there. In Hayre the Regional Office failed to obtain certain medical evidenc e in the veteran's military record, and this court held that, in doing so, the VA violated its duty to assist ve terans in the prosecution of their claims. Our jurisdic tion over Mr. Hayre's claims arose from the erroneous interpretation the Department accorded this duty to assist -- a matter of statutory06-7010 6 interpretation. No such st atutory issue is presented here. The number of evaluations required to diagnose a particular medical condi tion is not an issue of law but a factual medical judgment, and a veteran's refusal to be examined does not raise an issue of statutory or procedural law. Mr. Fahie argues that the Social Security Administration has deemed him totally disabled and that the VA and the CAVC should a ccord deference to this determination. The CAVC observed that the conditions that we re considered for Social Security purposes include legal blindness, not just the injury to his hand and subsequent surgeries. The Social Security Administration's determination re lied, in part, on Mr. Fahie's eye condition. In relying on his eye condition as contributi ng to his disability, Mr. Fahie appears to challenge the August 1998 RO decision denying se rvice connection for the eye condition. But Mr. Fahie did not appeal the RO's August 1998 decision regarding the eye condition, and the issue of whether the eye condition was service connected was not before the CAVC. We thus lack jurisdiction to consider it here. For these reasons, the appeal is dismissed for want of appellate jurisdiction. No costs.