NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`EDDIE JOHNSON,
`Claimant-Appellant
`
`v.
`
`ROBERT WILKIE, SECRETARY OF VETERANS
`AFFAIRS,
`Respondent-Appellee
`______________________
`
`2019-2049
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 18-7440, Judge Margaret C. Bart-
`ley.
`
`______________________
`
`Decided: December 4, 2019
`______________________
`
`EDDIE JOHNSON, Warner Robins, GA, pro se.
`
`
` MARIANA TERESA ACEVEDO, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent-appellee. Also repre-
`sented by JOSEPH H. HUNT, MARTIN F. HOCKEY, JR.,
`ROBERT EDWARD KIRSCHMAN, JR.; CHRISTINA LYNN GREGG,
`BRIAN D. GRIFFIN, Office of General Counsel, United States
`Department of Veterans Affairs, Washington, DC.
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`EDDIE JOHNSON,
`Claimant-Appellant
`
`v.
`
`ROBERT WILKIE, SECRETARY OF VETERANS
`AFFAIRS,
`Respondent-Appellee
`______________________
`
`2019-2049
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 18-7440, Judge Margaret C. Bart-
`ley.
`
`______________________
`
`Decided: December 4, 2019
`______________________
`
`EDDIE JOHNSON, Warner Robins, GA, pro se.
`
`
` MARIANA TERESA ACEVEDO, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent-appellee. Also repre-
`sented by JOSEPH H. HUNT, MARTIN F. HOCKEY, JR.,
`ROBERT EDWARD KIRSCHMAN, JR.; CHRISTINA LYNN GREGG,
`BRIAN D. GRIFFIN, Office of General Counsel, United States
`Department of Veterans Affairs, Washington, DC.
`
`
`
`2
`
`JOHNSON v. WILKIE
`
` ______________________
`
`Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
`PER CURIAM.
`Eddie Johnson appeals from the Court of Appeals for
`Veterans Claims’ (“the Veterans Court’s”) denial of his pe-
`tition for a writ of mandamus to compel the Department of
`Veterans Affairs (“VA”) to award Johnson compensation
`based on alleged service-connected deafness. See Johnson
`v. Wilkie, No. 18-7440 (Vet. App. May 16, 2019) (“Deci-
`sion”). Because Johnson raises only factual issues over
`which we lack jurisdiction, we dismiss the appeal.
`BACKGROUND
`Johnson was awarded service connection for bilateral
`hearing loss in 1982. When service connection was
`awarded, VA determined that Johnson’s hearing loss was
`zero percent disabling and assigned a noncompensable rat-
`ing. Since then, Johnson has filed a series of claims re-
`questing an increased rating. Johnson filed his first
`request for an increased rating in 1989. At that time, VA
`provided a hearing examination and, based on the results
`of the examination, continued the noncompensable rating.
`Johnson appealed the rating, which was eventually af-
`firmed by the Veterans Court. Johnson filed another claim
`for an increased rating on July 18, 2007, and VA again
`maintained the noncompensable rating.
`On September 17, 2009, Johnson filed a third claim for
`an increased rating. VA provided a hearing examination
`on January 13, 2010, and, based on the results of the ex-
`amination, awarded Johnson a 70 percent rating for bilat-
`eral hearing loss, effective from the date of the claim. The
`effective date of Johnson’s 70 percent rating was later
`changed to July 18, 2007.
`On February 8, 2012, Johnson filed a fourth claim for
`an increased rating.
` VA performed an additional
`
`
`
`JOHNSON v. WILKIE
`
`3
`
`examination on October 19, 2012, and awarded a 90 per-
`cent rating, effective from the date of the claim.
`In December 2018, Johnson petitioned the Veterans
`Court for mandamus relief, asking the court to compel the
`Atlanta VA regional office (“RO”) to issue a decision regard-
`ing Johnson’s entitlement to special monthly compensation
`(“SMC”) under 38 U.S.C. § 1114(k) for deafness in both ears
`and for an earlier effective date for the 2012 90-percent dis-
`ability rating. In response to Johnson’s petition, the RO
`reviewed Johnson’s claims file and issued ratings decisions
`dated February 28, 2019, and March 7, 2019 (“the 2019 de-
`cisions”), respectively denying SMC based on deafness and
`finding no clear and unmistakable error (“CUE”) under 38
`U.S.C. § 5109A in VA’s 2012 rating decision. Because the
`2019 decisions explained VA’s decision regarding John-
`son’s entitlement to SMC for deafness in both ears, both on
`the merits and as a CUE challenge, the Veterans Court de-
`termined that Johnson had received the relief that he had
`requested and dismissed Johnson’s petition as moot. Deci-
`sion, slip op. at 2. The Veterans Court further noted that
`to the extent that Johnson disagreed with the rating deci-
`sions, he was free to challenge the decisions through nor-
`mal VA procedures. Id.
`Johnson timely appealed.
`DISCUSSION
`Our jurisdiction to review decisions of the Veterans
`Court is limited. We may review a decision of the Veterans
`Court with respect to a rule of law or interpretation of a
`statute or regulation relied on by the Veterans Court in its
`decision. 38 U.S.C. § 7292(a). However, except with re-
`spect to constitutional issues, we may not review chal-
`lenges to factual determinations or challenges to the
`application of a law or regulation to the facts of a case. Id.
`§ 7292(d)(2).
`
`
`
`4
`
`JOHNSON v. WILKIE
`
`The exclusion of review of factual issues from our juris-
`diction does not preclude us from reviewing denials of a pe-
`tition for mandamus based on a challenge to a law,
`regulation, or constitutional issue. See Lamb v. Principi,
`284 F.3d 1378, 1381–82 (Fed. Cir. 2002). The grant or de-
`nial of a petition for mandamus is reviewed for abuse of
`discretion. Id. at 1384. However, “[t]he remedy of manda-
`mus is a drastic one, to be invoked only in extraordinary
`situations,” Kerr v. United States Dist. Court, 426 U.S. 394,
`402 (1976), and writs “cannot be used as substitutes for ap-
`peals,” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379,
`383 (1953).
`On appeal, Johnson argues that VA erred in denying
`SMC for his hearing loss. Specifically, Johnson argues that
`the RO improperly denied Johnson’s request because it re-
`lied on the results of the 2012 hearing examination. Ac-
`cording to Johnson, the RO’s reliance on an earlier
`examination was a deprivation of due process under the
`Fifth Amendment.
`The government responds that we lack jurisdiction to
`review the Veterans Court’s dismissal of Johnson’s petition
`because Johnson raises only factual issues on appeal—spe-
`cifically, whether the RO correctly determined that John-
`son’s hearing
`loss does not entitle him to SMC.
`Accordingly, the government argues that we should dis-
`miss Johnson’s appeal. Alternatively, the government ar-
`gues that the Veterans Court’s dismissal of Johnson’s
`petition was proper because Johnson received a decision
`from VA regarding his entitlement to SMC, which Johnson
`could have appealed through non-mandamus procedures.
`We agree with the government that we lack jurisdic-
`tion to consider the merits of Johnson’s appeal. The deter-
`mination whether the severity of a disability entitles a
`claimant to SMC is a factual determination that we lack
`jurisdiction to review. See Bastien v. Shinseki, 599 F.3d
`1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing
`
`
`
`JOHNSON v. WILKIE
`
`5
`
`of evidence and the drawing of appropriate inferences from
`it are factual determinations committed to the discretion of
`the fact-finder.”).
`Johnson’s bare assertion of a due process violation is
`insufficient to transform Johnson’s appeal into a constitu-
`tional issue over which we have jurisdiction. Johnson ar-
`gues that the RO improperly relied on an earlier hearing
`examination in its denial of SMC. But Johnson’s “charac-
`terization of that question as constitutional in nature does
`not confer upon us jurisdiction that we otherwise lack.”
`Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007)
`(quoting Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir.
`1999)).
`In any event, as noted by the Veterans Court, Johnson
`could have obtained review of the RO’s denial of SMC by
`appealing the 2019 decisions within the VA system, and
`may still do so subject to applicable time limits. In re-
`sponse to his petition to the Veterans Court, Johnson re-
`ceived decisions from the RO explaining its decision to deny
`SMC, and Johnson has not explained how appealing the
`RO’s denial of SMC through the regular appeal process
`would have been insufficient to vindicate his objections to
`the 2019 decisions.
`
`CONCLUSION
`We have considered Johnson’s remaining arguments
`but find them unpersuasive. For the foregoing reasons, we
`dismiss the appeal for lack of jurisdiction.
`DISMISSED
`
`
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