Shannon v. Collins

• Court: Court of Appeals for the Federal Circuit
• Decided: June 9, 2025
• Docket: 24-1784
• Status: Unpublished

Opinion

Case: 24-1784 Document: 34 Page: 1 Filed: 06/09/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

OLIVER SHANNON, Claimant-Appellant

v.

DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2024-1784 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 22-7270, Judge Joseph L. Falvey, Jr, Judge Scott Laurer, Judge William S. Greenberg. ______________________

Decided: June 9, 2025 ______________________

OLIVER SHANNON, Locust, NC, pro se.

LAUREL DON HAVENS, III, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; MATTHEW ALBANESE, BRIAN D. GRIFFIN, Office of General Counsel, United States Depart- ment of Veterans Affairs, Washington, DC. Case: 24-1784 Document: 34 Page: 2 Filed: 06/09/2025

______________________

Before MOORE, Chief Judge, LOURIE and BRYSON, Circuit Judges. PER CURIAM. Oliver Shannon appeals a decision of the United States Court of Appeals for Veterans Claims (Veterans Court) af- firming a decision of the Board of Veterans’ Appeals (Board) denying a higher rating for his right knee disabili- ties. Because Mr. Shannon raises issues we do not have jurisdiction to review, we dismiss. BACKGROUND Mr. Shannon served in the U.S. Army from 1968 to 1971. S. Appx. 42. 1 At issue here is the Veterans Court’s decision related to the Board’s determination “the criteria in excess of 10 percent based on right knee limitation of motion, or for separate ratings for genu recurvatum or im- pairment of the tibia or fibula, have not been met.” S. Appx. 26. The Veterans Court held the Board did not err when it denied a higher rating for Mr. Shannon’s right knee disabilities. S. Appx. 12–13. Mr. Shannon timely ap- peals. DISCUSSION We have limited jurisdiction to review Veterans Court decisions. Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). Unless a constitutional issue is presented, 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.” 38 U.S.C. § 7292(d)(2). Even when an argument is framed as one of statutory interpre- tation, we lack jurisdiction if the argument ultimately

1 “S. Appx.” refers to the supplemental appendix at- tached to Appellee’s Informal Response Brief. Case: 24-1784 Document: 34 Page: 3 Filed: 06/09/2025

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concerns an application of law to the facts. Delisle v. McDonald, 789 F.3d 1372, 1374 (Fed. Cir. 2015). The Veterans Court rejected Mr. Shannon’s arguments that (1) the Board failed to apply or misapplied several reg- ulations; (2) the Board failed to consider his 1968 leg injury and 1970 back injury for his right knee disability rating, which has an effective date of October 6, 2011; and (3) the Veterans Court should either grant service connection or take some unspecified action on claims the Board did not decide. S. Appx. 14–17. The Veterans Court explained Mr. Shannon “disagrees with the Board’s decision but doesn’t point to evidence that disputes the Board’s findings” and held “[t]he Board didn’t clearly err when it weighed the ev- idence.” S. Appx. 17. On appeal, Mr. Shannon’s arguments are difficult to parse. He lists, without explanation, the statutory and reg- ulatory provisions and diagnostic codes (DC) the Board cited in its challenged determination. Appellant’s Informal Br. 1 (citing 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1–4.7, 4.10, 4.40, 4.45, 4.59, 4.71a; DC 5003, 5256, 5262, 5263); see also S. Appx. 26. He cites 38 U.S.C. § 7332, also without explanation, which relates to confidentiality of medical records “maintained in connection with the per- formance of any program or activity . . . relating to drug abuse, alcoholism or alcohol abuse, infection with the hu- man immunodeficiency virus, or sickle cell anemia.” Ap- pellant’s Informal Br. 2. Pro se filings are construed liberally, Erickson v. Par- dus, 551 U.S. 89, 94 (2007), but we cannot read in argu- ments that were never made in the briefs. See Parks v. Shinseki, 716 F.3d 581, 586 (Fed. Cir. 2013). At most, Mr. Shannon challenges how certain diagnostic codes were ap- plied, but whether a particular rating was correctly as- signed requires application of law to fact that we do not have jurisdiction to review. Middleton v. Shinseki, 727 F.3d 1172, 1177–78 (Fed. Cir. 2013) (citing 38 U.S.C. Case: 24-1784 Document: 34 Page: 4 Filed: 06/09/2025

§ 7292(d)(2)). We recognize Mr. Shannon has framed these arguments in terms of statutory or regulatory interpreta- tion and generally claims his constitutional right has been violated. Appellant’s Informal Reply Br. 1–2, 6–7, 10. Merely characterizing an argument as presenting a consti- tutional issue, as Mr. Shannon does here, is insufficient to confer jurisdiction. Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007). Mr. Shannon makes additional arguments that gener- ally seem to challenge determinations the Veterans Court did not make on issues it was not presented, or otherwise challenge the Veterans Court’s conclusion that his argu- ment there was underdeveloped. Both are issues we lack jurisdiction to review. Belcher v. West, 214 F.3d 1335, 1337 (Fed. Cir. 2000) (holding we lack jurisdiction to review an issue or argument that was not raised to the Veterans Court). First, Mr. Shannon cites 38 U.S.C. § 20.1403, which de- fines clear and unmistakable error (CUE), for “[k]nee tibia and fibula.” Appellant’s Informal Br. 2; see also Appellant’s Informal Reply Br. 5–6. But Mr. Shannon did not allege CUE before the Veterans Court. S. Appx 21–23. Second, Mr. Shannon disputes the 1982 denial of his “claim for lum- bosacral strain with muscle spasms.” Appellant’s Informal Br. 2–3; see also Appellant’s Informal Reply Br. 7–8. But that claim was not before the Board and not addressed by the Veterans Court. S. Appx. 42–43; S. Appx. 12–17. Fi- nally, Mr. Shannon challenges the Veterans Court’s find- ing that any records relating to a 1968 leg injury and a 1970 back injury are irrelevant to the rating for his right knee disability, which has an effective date of October 6, 2011. Appellant’s Informal Br. 2; see also Appellant’s In- formal Reply Br. 4–5. Mr. Shannon fails to present any argument as to why these records were relevant and should have been considered by the Veterans Court. Id.; Parks, 716 F.3d at 586 (“[I]t is one thing to read a record Case: 24-1784 Document: 34 Page: 5 Filed: 06/09/2025

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sympathetically . . . it is quite another to read into the rec- ord an argument that had never been made.”). CONCLUSION We have considered Mr. Shannon’s remaining argu- ments and find them unpersuasive. Because Mr. Shan- non’s appeal does not present issues within our limited jurisdiction, we dismiss. DISMISSED COSTS No costs.