Case: 21-2088 Document: 33 Page: 1 Filed: 10/07/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

TRACY L. PENLEY, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2021-2088 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 19-8656, Judge Scott Laurer. ______________________

Decided: October 7, 2022 ______________________

KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant. Also represented by GREGORY MICHAEL RADA, After Service LLC, Denver, CO.

EVAN WISSER, Commercial Litigation Branch, Civil Di- vision, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA PREHEIM; AMANDA BLACKMON, BRIAN D. GRIFFIN, Office of Case: 21-2088 Document: 33 Page: 2 Filed: 10/07/2022

2 PENLEY v. MCDONOUGH

General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Before MOORE, Chief Judge, CHEN and STOLL, Circuit Judges. MOORE, Chief Judge. 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 effec- tive date for total disability rating based on individual un- employability (TDIU) benefits. Ms. Penley argues the Veterans Court incorrectly affirmed the Board’s finding that the Department of Veterans Affairs (VA) implicitly de- nied 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 ap- peal 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 exhaus- tion. It is undisputed Ms. Penley did not raise any argu- ment regarding § 3.156(b) to the Board. Appellant’s Br. 16. The Veterans Court did not abuse its discretion in declin- ing 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. DISMISSED IN PART AND AFFIRMED IN PART COSTS No costs.