This morning the Federal Circuit released a nonprecedential opinion in a veterans case appealed from the Court of Appeals for Veterans Claims. Late yesterday and this morning, the Federal Circuit also released two nonprecedential orders granting motions to voluntarily dismiss appeals. Here is the introduction to the opinion and links to the dismissals.
Penley v. McDonough (Nonprecedential)
Tracy L. Penley appeals a decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals’ decision denying her an earlier effective date for total disability rating based on individual unemployability (TDIU) benefits. Ms. Penley argues the Veterans Court incorrectly affirmed the Board’s finding that the Department of Veterans Affairs (VA) implicitly denied her application for TDIU benefits in its 1999 and 2001 ratings decisions. Except for constitutional issues, we “may not review . . . a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). We do not have jurisdiction to decide whether the Veterans Court erred in applying the implicit denial rule to the facts of this case and therefore dismiss the appeal as to this issue.
Ms. Penley also appeals the Veterans Court’s decision to not consider her arguments regarding 38 C.F.R. § 3.156(b) pursuant to principles of administrative exhaustion. It is undisputed Ms. Penley did not raise any argument regarding § 3.156(b) to the Board. Appellant’s Br. 16. The Veterans Court did not abuse its discretion in declining to decide the argument in the first instance on appeal. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000). We therefore affirm the decision as to this issue.