David L. Johnson v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID L. JOHNSON,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1898
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-4199, Judge Scott Laurer.
______________________
Decided: January 29, 2026
______________________
CHRISTOPHER G LENN MURRAY , National Veterans Le-
gal Services Program, Arlington, VA, argued for claimant-
appellant. Also represented by RENEE A. B URBANK, STACY
A. T ROMBLE , CHRISTOPHER WALLACE .
AN H OANG, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. B OYNTON, MARTIN F. HOCKEY , J R., P ATRICIA M.
MCCARTHY ; CHRISTINA L YNN G REGG, BRIAN D. G RIFFIN,
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JOHNSON v. COLLINS 2
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before L OURIE, P ROST , and CUNNINGHAM , Circuit Judges.
P ROST , Circuit Judge.
David L. Johnson appeals from a decision of the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”),
affirming the denial of restoration of his forty-percent rat-
ing for residuals of a right-ankle ligament tear and left-an-
kle sprain. See Johnson v. McDonough, No. 22-4199, 2023
WL 8108368 (Vet. App. Nov. 22, 2023) (“Decision”). For the
following reasons, we affirm in part and dismiss in part.
BACKGROUND
Mr. Johnson served honorably in the U.S. Marine
Corps from November 25, 1961 to May 24, 1962. During
his service, Mr. Johnson suffered a ligament tear in his
right ankle. In 2011, Mr. Johnson applied to the Depart-
ment of Veterans Affairs (“VA”) for service-connected disa-
bility benefits for his right-ankle disability and
subsequently applied for disability benefits associated with
his left ankle. In examinations conducted in February and
July 2012, VA examiners noted ankylosis in both of Mr.
Johnson’s ankles and, consequently, rated each of his ser-
vice-connected ankle disabilities at forty percent.
In September 2012, Mr. Johnson sought an increase in
compensation based on unemployability. A VA examiner
found, during a January 2013 examination, that Mr. John-
son did not present ankylosis in either ankle, but the ex-
aminer later opined, in February 2013, that the prior
ankylosis diagnoses were supported by the original finding
that dorsiflexion stopped at ten degrees. In October 2013,
a new examiner also found no ankylosis in either ankle.
The VA regional office proposed that Mr. Johnson’s ratings
be reduced from forty percent to twenty percent as the
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JOHNSON v. COLLINS 3
examiners should not have indicated that either of
Mr. Johnson’s ankles had ankylosis. J.A. 338, 340. De-
spite originally deciding to challenge the proposed reduc-
tion, Mr. Johnson instead opted for another medical
examination, which occurred in May 2015 and also found
no ankylosis in either ankle. In November 2015, the re-
gional office reduced Mr. Johnson’s rating to twenty per-
cent for both ankles effective February 1, 2016.
After Mr. Johnson appealed, the Board of Veterans’ Ap-
peals (“Board”) remanded for the VA “to obtain imaging
and a medical opinion as to whether [Mr. Johnson] has, or
ever had, ankylosis.” J.A. 265. Mr. Johnson’s case then
volleyed between the Board and the VA regional office for
years. During this time, Mr. Johnson underwent at least
four additional examinations, which each separately indi-
cated that he did not have ankylosis in either ankle.
In March 2022, the Board ultimately denied Mr. John-
son’s request for restoration of his forty-percent rating.
The Board found that “[t]he rating reductions for the ser-
vice connected ankle disabilities were based on clinical ev-
idence establishing that an improvement in these
disabilities had actually occurred and resulted in an im-
provement in [Mr. Johnson’s] ability to function under the
ordinary conditions of life.” J.A. 106. Specifically, “the
findings of there being no ankylosis at the VA examina-
tions conducted in January 2013, October 2013, and May
2015—as confirmed by subsequent VA examinations of the
ankles—warranted the reduction in the [forty-percent] rat-
ings.” J.A. 112.
On appeal before the Veterans Court, Mr. Johnson ar-
gued that the Board’s decision was void because it relied on
the January 2013, October 2013, and May 2015 VA exami-
nations. According to Mr. Johnson, these examinations
were inadequate for failing to consider functional loss over
time or pain during both active and passive range of motion
in weight-bearing and non-weight-bearing positions.
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JOHNSON v. COLLINS 4
Mr. Johnson also contended that the Board failed to make
all findings necessary for upholding his rating reduction.
To reduce his rating, Mr. Johnson maintained, the Board
needed to find that his ankylosis actually improved under
the ordinary conditions of life and work, but the Board
failed to address whether the ankylosis improved under the
ordinary conditions of work.
The Veterans Court affirmed the Board’s decision and
rejected Mr. Johnson’s contention that the Board relied on
inadequate examinations. Decision, 2023 WL 8108368,
at *3, *5. It observed that “the standard for assessing the
adequacy of an exam is whether it can adequately inform
the Board’s decision making” and determined that, here,
the contested exams “gave the Board enough information
to assess whether his ankylosis had improved.” Id. at *3.
Specifically, the Veterans Court noted that all three exam-
iners found that Mr. Johnson did not have ankylosis and
measured his range of motion including during flare-ups,
which supported the finding that Mr. Johnson did not have
functional ankylosis. Id.
Additionally, the Veterans Court rejected Mr. John-
son’s argument that the Board failed to make all necessary
findings. Id. at *4. Specifically, the Veterans Court con-
cluded that the weight of the evidence supported the
Board’s conclusion “that [Mr. Johnson’s] ankylosis—a legal
reality if not a medical one—had improved.” Id. Moreover,
the Veterans Court noted that Mr. Johnson had not worked
“since 2009, well before this litigation began, so there were
no relevant work conditions for the Board to analyze.” Id.
(cleaned up). The Veterans Court thus concluded that the
Board correctly articulated the standard governing rating
reductions and correctly “limited its discussion to the evi-
dence of record.” Id.
Mr. Johnson filed a motion for reconsideration or, al-
ternatively, a panel decision. The Veterans Court denied
the motion for reconsideration. While the Veterans Court
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JOHNSON v. COLLINS 5
granted the motion for a panel decision, the panel ordered
that the single-judge decision remain the Veterans Court’s
final decision.
Mr. Johnson timely appealed. Our jurisdiction over ap-
peals from the Veterans Court is governed by 38 U.S.C.
§ 7292.
D ISCUSSION
I
Mr. Johnson argues that the Veterans Court upheld
the reduction of his ankle-disability ratings based on an in-
correct interpretation of the term “actual change” in
38 C.F.R. § 4.13. That regulation requires the Secretary to
show “an actual change in the [veteran’s] conditions, for
better or worse.”1 In support of his argument, Mr. Johnson
1 The regulation, in full, provides:
The repercussion upon a current rating of service
connection when change is made of a previously as-
signed diagnosis or etiology must be kept in mind.
The aim should be the reconciliation and continu-
ance of the diagnosis or etiology upon which service
connection for the disability had been granted. The
relevant principle enunciated in § 4.125, entitled
“Diagnosis of mental disorders,” should have care-
ful attention in this connection. When any change
in evaluation is to be made, the rating agency
should assure itself that there has been an actual
change in the conditions, for better or worse, and
not merely a difference in thoroughness of the ex-
amination or in use of descriptive terms. This will
not, of course, preclude the correction of erroneous
ratings, nor will it preclude assignment of a rating
in conformity with § 4.7.
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JOHNSON v. COLLINS 6
highlights (1) the Veterans Court’s suggestion that the “in-
itial examiners marked ankylosis in error” and (2) its rea-
soning that, “even if the initial examiners had noted
ankylosis correctly,” the evidence supported the Board’s
finding that his condition had improved. See Decision,
2023 WL 8108368, at *3 (emphasis added). We understand
Mr. Johnson to argue that the Veterans Court could not
uphold a finding of an “actual change” simply by assuming
the correctness (or lack of error in) the initial diagnoses.
See Appellant’s Br. 12–13 (“[T]he Veterans Court created a
legal fiction that Mr. Johnson did have ankylosis at the
time he was awarded the separate [forty-]percent ratings
so that the later absence of ankylosis represented an im-
provement in the ankle disabilities.”).
At bottom, Mr. Johnson’s regulatory-interpretation ar-
gument for why there was no “actual change” requires dis-
turbing the fact findings underlying the initial diagnoses of
ankylosis (and the earlier forty-percent rating). Put differ-
ently: if those fact findings were not disturbed—such that
the earlier diagnoses and rating were treated as a settled
factual matter—then Mr. Johnson could not maintain his
argument that the Veterans Court erroneously upheld his
rating reduction in the absence of a showing of an actual
change in his condition. Yet the Board did not disturb
those fact findings. Nor did the Veterans Court. Because
we generally “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), and because Mr. Johnson’s regulatory-inter-
pretation argument depends on disturbing a factual deter-
mination adhered to by both the Board and the Veterans
Court, we conclude that we lack jurisdiction to consider
38 C.F.R. § 4.13 (emphasis added).
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JOHNSON v. COLLINS 7
this argument and thus dismiss Mr. Johnson’s challenge in
this regard.
II
Mr. Johnson also alleges that the Veterans Court ex-
ceeded the scope of its jurisdictional statute by engaging in
de novo factfinding. For example, Mr. Johnson contends
that VA regulations require testing for pain on active and
passive range of motion and both weight-bearing and non-
weight-bearing positions. Appellant’s Br. 20 (citing
38 C.F.R. § 4.59). Mr. Johnson contends that none of the
three pre-reduction examinations addressed both active
and passive motion or both weight-bearing and non-
weight-bearing positions. The Board did not analyze these
deficiencies, Mr. Johnson contends, but the Veterans Court
nevertheless concluded that the pre-reduction examina-
tions provided the Board with enough information to assess
whether Mr. Johnson’s ankylosis improved.
In response, the Secretary argues that the Veterans
Court did not make fact findings in the first instance but
merely reviewed the Board’s findings that the examina-
tions were adequate.
We agree with the Secretary; the Veterans Court did
not find facts in the first instance. Whether the Veterans
Court exceeded its jurisdiction is a legal question that this
court has jurisdiction to review. Tadlock v. McDonough,
5 F.4th 1327, 1332–33 (Fed. Cir. 2021). Such review in-
cludes determining whether the Veterans Court exceeded
its authority by engaging in de novo factfinding. Tadlock,
5 F.4th at 1332–33. Here, the Board recognized that “if the
VA examination report justifying the rating reduction is in-
adequate, the reduction cannot be upheld.” J.A. 109. The
Board then concluded that there was “no evidence of clini-
cal or functional ankylosis in either ankle on any other clin-
ical report after the February and July 2012 VA
examinations” and that “the VA examinations conducted in
January 2013, October 2013, and May 2015 . . . warranted
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JOHNSON v. COLLINS 8
the reduction in [Mr. Johnson’s] ratings.” J.A. 112. Thus,
the Board determined that the pre-reduction examinations
were adequate to support the reduction in Mr. Johnson’s
rating. The Veterans Court’s subsequent assessment of the
adequacy of the examinations to support a conclusion that
Mr. Johnson did not suffer from functional ankylosis there-
fore reflects the proper exercise of appellate review of fac-
tual determinations, rather than fact finding in the first
instance.
Mr. Johnson also alleges that the Board made no find-
ings regarding whether the improvements in Mr. Johnson’s
ankle disabilities reflected improved functioning in the or-
dinary conditions of work and, thus, the Veterans Court ex-
ceeded its jurisdiction by determining that “there were no
relevant work conditions for the Board to analyze.” Appel-
lant’s Br. 23.
We disagree. The Veterans Court recognized, as did
the Board, that Mr. Johnson had not worked since 2009,
well before Mr. Johnson’s initial ankylosis diagnosis. As a
result, the Veterans Court concluded that the Board appro-
priately confined its analysis to the issues implicated by
the evidence of record. Decision, 2023 WL 8108368, at *4.
This conclusion by the Veterans Court is not a factual find-
ing. For example, the Veterans Court did not determine
that Mr. Johnson’s ankylosis in fact improved under the or-
dinary conditions of work. Instead, the Veterans Court’s
decision indicates that the relevant standard did not re-
quire the Board to speculate as to whether Mr. Johnson’s
ankylosis improved under conditions that were not impli-
cated by the facts of the case. See id. (concluding that “[t]he
[Veterans] Court can’t imagine what the Board could or
should have said about the work conditions of a veteran
who has been unemployed for the span of his appeal beyond
addressing his holistic ability to function” and, thus, “the
Board decision adequately analyzed [Mr. Johnson’s] im-
proved ability to function under the ordinary conditions of
life and work given his circumstances” (emphasis added)).
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JOHNSON v. COLLINS 9
Accordingly, Mr. Johnson’s arguments that the Veter-
ans Court exceeded its jurisdiction lack merit. We there-
fore affirm the jurisdictional assessment underlying the
Veterans Court’s decision.
CONCLUSION
We have considered Mr. Johnson’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm in part and dismiss in part.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.
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