Mares v. McDonough ( 2021 )

Case: 20-1627 Document: 45 Page: 1 Filed: 05/10/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY D. MARES,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1627
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-3159, Judge Joseph L. Toth.
______________________
Decided: May 10, 2021
______________________
SEAN A. RAVIN, Miami, FL, for claimant-appellant.
NATHANAEL YALE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR.; EVAN SCOTT GRANT, BRIAN D.
GRIFFIN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Case: 20-1627 Document: 45 Page: 2 Filed: 05/10/2021
2 MARES v. MCDONOUGH
Before DYK, LINN, and O’MALLEY, Circuit Judges.
PER CURIAM.
Appellant Anthony D. Mares (“Mares”) appeals a deci-
sion of the U.S. Court of Appeals for Veterans Claims (“Vet-
erans Court”), affirming a decision of the Board of
Veterans’ Appeals (“Board”), which denied his claim for en-
titlement to service connection for diabetes mellitus and
erectile dysfunction. Mares v. Wilkie, No. 18-3159, 2019
WL 6885044 (Vet. App. Dec. 18, 2019). We dismiss for lack
of jurisdiction.
I. BACKGROUND
A. Legal Framework
“During the Vietnam War, herbicides were applied
near the Korean DMZ [Demilitarized Zone] from April
1968 to July 1969.” McKinney v. McDonald, 796 F.3d 1377,
1379 (Fed. Cir. 2015). Congress, by statute, and the De-
partment of Veterans Affairs (“VA”), by regulation, have
created a number of presumptions with respect to veterans’
exposure to herbicides and certain diseases or conditions
associated with that exposure.
Relevant to this appeal, there is a presumption of ex-
posure to herbicides during service for veterans who
“served between April 1, 1968, and August 31, 1971, in a
unit that, as determined by the Department of Defense, op-
erated in or near the Korean DMZ in an area in which herb-
icides are known to have been applied during that period.”
39 U.S.C. § 3.307(a)(6)(iv). Although herbicide use near
the Korean DMZ ended in 1969, the VA extended the cov-
ered period of the regulation through August 1971 to ac-
count for residual exposure. See Herbicide Exposure and
Veterans With Covered Service in Korea, 76 Fed. Reg.
4,245, 4,245 (Jan. 25, 2011) (“We believe it is reasonable
and consistent with the intent of Congress to concede expo-
sure for veterans who served in or near the Korean DMZ
Case: 20-1627 Document: 45 Page: 3 Filed: 05/10/2021
MARES v. MCDONOUGH 3
after herbicide application ceased, because of the potential
for exposure to residuals of herbicides applied in that
area.”). 1
A veteran who meets the requirements of
§ 3.307(a)(6)(iv) is presumed to have been exposed to herb-
icides during service, and may obtain service connection on
a presumptive basis for any disease found to be associated
with such exposure. See 38 C.F.R. § 3.309(e). A veteran
who does not qualify for the presumption may still pursue
direct service connection for the same disability. See
Combee v. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir. 1994).
To prove direct service connection, as opposed to presump-
tive service connection, a veteran must show: “‘(1) the ex-
istence of a present disability; (2) in-service incurrence or
aggravation of a disease or injury; and (3) a causal relation-
ship between the present disability and the disease or in-
jury incurred or aggravated during service’—the so-called
‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362,
1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381
F.3d 1163, 1167 (Fed. Cir. 2004)).
B. Factual Background
Mares served in the United States Army from 1962 to
1982. His service included two tours on the Korean Penin-
sula: (1) from September 18, 1964 to August 17, 1965; and
(2) from May 14, 1972 to June 12, 1973. Mares, 2019 WL
1 The Blue Water Navy Vietnam Veterans Act of
2019 subsequently codified this regulatory presumption for
veterans who “served in or near the Korean [DMZ] during
the period beginning on September 1, 1967, and ending on
August 31, 1971.” 38 U.S.C. § 1116B. This provision went
into effect January 1, 2020—after the Veterans Court is-
sued its decision in this appeal. As the court noted, how-
ever, “the period specified still does not cover the veteran’s
service.” Mares, 2019 WL 6885044, at *1 n.1.
Case: 20-1627 Document: 45 Page: 4 Filed: 05/10/2021
4 MARES v. MCDONOUGH
6885044, at *1. Accordingly, he did not serve in the DMZ
during the time period specified in 39 C.F.R.
§ 3.307(a)(6)(iv).
In 2011, Mares filed a claim seeking service connection
for diabetes mellitus—a herbicide-associated disease—and
erectile dysfunction as secondary to his diabetes mellitus.
In his claim, Mares stated that, during his second period of
service in Korea (between 1972 and 1973), he was a facility
engineer “responsible for a variety of construction projects
north of the Imjin River, both within the DMZ and directly
south of the DMZ fence.” Mares, 2019 WL 6885044, at *1.
He stated that he “was in the area that had been defoliated
constantly.” Id. In a subsequent submission, Mares stated
that he had been informed by a veteran’s service organiza-
tion representative that he “may have been exposed to de-
foliant chemicals in Korea and especially in the area of the
DMZ.” Id.A VA examiner confirmed Mares’ diagnosis of diabetes
mellitus, but did not opine on a link between the disease
and alleged herbicide exposure. In an April 2012 memo-
randum, the VA regional office coordinator with the Joint
Services Records Research Center determined that Mares’
“assignments to Korea preceded and followed the dates
when Agent Orange is conceded to have been used at the
Korean DMZ.” Id. at *2.
In August 2012, the VA regional office denied Mares’
diabetes mellitus and erectile dysfunction claims. Mares
timely appealed that decision to the Board.
In May 2019, the Board denied Mares’ claims for ser-
vice connection for diabetes and erectile dysfunction. The
Board recognized that VA regulations presume exposure to
herbicide agents for veterans who served between April 1,
1968 and August 31, 1971, in a unit that operated in or
near the Korean DMZ where herbicides are known to have
been applied. J.A. 19. The Board found that, because
Mares’ service department records indicate that he was not
Case: 20-1627 Document: 45 Page: 5 Filed: 05/10/2021
MARES v. MCDONOUGH 5
in Korea during that time frame, “the legal presumption of
exposure to herbicide agents is not available.” Id. The
Board further found that Mares “did not submit any evi-
dence stating how he was allegedly exposed to herbicide
agents and the record otherwise contains no basis upon
which to find exposure to herbicide agents on an actual ba-
sis.” Id. Because there was no showing of actual or pre-
sumed exposure to herbicides, the Board denied service
connection for diabetes mellitus on a presumptive basis.
Id.
The Board then considered whether Mares had estab-
lished direct service connection for diabetes mellitus. Be-
cause the record contained no indication that Mares’ “post-
service diabetes is causally related to his active service or
any incident therein,” and “absent probative evidence of in-
service Agent Orange exposure,” the Board denied service
connection on a direct basis. J.A. 20. Given its denial of
the diabetes claim, the Board also denied Mares’ secondary
erectile dysfunction claim. Id. Mares appealed to the Vet-
erans Court.
In the December 18, 2019 decision at issue on appeal,
the Veterans Court affirmed the Board’s decision denying
service connection. Before the Veterans Court, Mares did
not challenge the Board’s finding that the regulatory pre-
sumption of herbicide exposure was inapplicable to his
claim because his service fell outside the specified pre-
sumptive period. Mares, 2019 WL 6885044, at *3. Instead,
Mares argued that the Board erred in finding “no evidence
of alleged exposure to herbicide agents.” Id. at *2. Specif-
ically, he argued that the Board failed to analyze his state-
ments that he was actually exposed to Agent Orange in the
course of carrying out his construction duties in the Korean
DMZ. Id. The Veterans Court disagreed. First, it pointed
to the Board’s finding that neither Mares “nor the record
more generally, provided a ‘basis upon which to find expo-
sure to herbicide agents on an actual basis.’” Id. at *3. The
court agreed with this assessment, finding that “nowhere
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6 MARES v. MCDONOUGH
in the record does the veteran allege that herbicides were
actually sprayed or deployed while he was serving in Ko-
rea, or that he had knowledge of otherwise coming into di-
rect contact with them.” Id.
Next, the Veterans Court found that the herbicide ex-
posure Mares asserts “is residual in nature” because herb-
icide usage in the Korean DMZ ceased in 1969—almost
three years before his second period of Korean service be-
gan in 1972. Id. The court found that this assertion “runs
headlong into the regulation” because the VA already con-
sidered the potential for exposure to residuals of herbicides
applied in the Korean DMZ when it defined the presump-
tive period. Id. at *3. Specifically, the VA extended the
regulation’s presumptive period end date to August 31,
1971 to account for residual exposure. Id. In other words,
the VA “already determined that the period permitting a
presumption of exposure to herbicide residuals ended in
August 1971.” Id. at *4. Given this framework, the Veter-
ans Court found that Mares’ lay statements were “no more
than assertions that he was presumptively exposed to
herbicide residuals when his second service period began
in May 1972, eight and a half months after the ‘reasonable
outside date for residual exposure.’” Id. at *4.
The Veterans Court concluded that the Board offered a
sufficient explanation for denying service connection for di-
abetes mellitus. Id. And, because Mares’ argument for re-
mand of the erectile dysfunction claim turned on the
disposition of his diabetes appeal, the court affirmed that
portion of the Board’s decision as well. Id.
Mares timely appealed, alleging jurisdiction pursuant
to 38 U.S.C. § 7292(a).
II. DISCUSSION
This court’s jurisdiction to review decisions of the Vet-
erans Court is limited by statute. We have “exclusive ju-
risdiction to review and decide any challenge to the validity
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MARES v. MCDONOUGH 7
of any statute or regulation or any interpretation thereof .
. . and to interpret constitutional and statutory provisions,
to the extent presented and necessary to a decision.” 38
U.S.C. § 7292(c). Absent a constitutional issue, however,
we may not review the Veterans Court’s factual findings or
its application of law to facts. 38 U.S.C. § 7292(d); see Bo-
zeman v. McDonald, 814 F.3d 1354, 1357 (Fed. Cir. 2016)
(explaining that the Veterans Court’s “application of law to
fact” is “a question over which we lack jurisdiction”).
On appeal, Mares contends that the Veterans Court
erred when it held that he “was precluded from establish-
ing entitlement to a benefit based on a theory of direct ser-
vice connection for a disorder in which presumptive service
connection is available.” Appellant’s Br. 10. Mares main-
tains that he never argued that his exposure should be pre-
sumed. Instead, Mares “claimed entitlement to service
connection for diabetes mellitus based on actual exposure
to Agent Orange as part of his construction duties in the
Korean [DMZ].” Id. at 15. According to Mares, the Board
was required “to analyze his lay statements to determine
whether his allegation of actual exposure to Agent Orange
was competent, credible, and persuasive,” and it failed to
do so. Id. at 17. We disagree with Mares’ characterization
of the Board’s conclusions.
As the government points out, the crux of Mares’ ap-
peal involves a straight-forward challenge to a factual find-
ing—whether Mares provided evidence of actual exposure
to herbicides to demonstrate service connection. The Board
found that he did not, and the Veterans Court found no er-
ror in that determination. J.A. 19 (“[T]he Board finds that
service connection for diabetes mellitus based on actual or
presumed exposure to herbicide agents is not warranted.”);
Mares, 2019 WL 6885044, at *3 (agreeing with the Board
that “nowhere in the record does the veteran allege that
herbicides were actually sprayed or deployed while he was
serving in Korea, or that he had knowledge of otherwise
coming into direct contact with them”). The Board did not
Case: 20-1627 Document: 45 Page: 8 Filed: 05/10/2021
8 MARES v. MCDONOUGH
conclude that Mares could not prove actual exposure due
to the residual presence of herbicides. It only concluded
that the timing of Mares’ service in the Korean DMZ and
speculation that he may have been exposed to residual
herbicides at that time were insufficient to do so.
On appeal, Mares argues, as he did before the Veterans
Court, that his lay statements establish actual herbicide
exposure. But these allegations merely challenge the
Board’s findings of fact and the sufficiency of the evidence
leading to the Board’s decision, as well as the Veterans
Court’s review of that decision. Those issues are not within
our jurisdiction. 38 U.S.C. § 7292(d)(2).
Mares attempts to frame his argument as a legal one
regarding the interpretation of 38 U.S.C. § 1154(a). Specif-
ically, he contends that the Veterans Court “misinter-
preted section 1154(a) when it held that under 38 C.F.R.
§ 3.307(a)(6)(iv) . . . the Board is not obligated to consider
entitlement under the theory of direct service connection
because residual exposure is not actual exposure to Agent
Orange.” Appellant’s Br. 3–4. This argument lacks merit.
Contrary to Mares’ assertion, the Veterans Court nei-
ther cited nor interpreted 38 U.S.C. § 1154(a). See Forshey
v. Principi, 284 F.3d 1335, 1349 (Fed. Cir. 2002) (en banc),
superseded on other grounds by statute, Veterans Benefits
Act of 2002, Pub. L. No. 107–330, § 402(a), 116 Stat. 2820,
2832 (“[A]n interpretation of a statute or regulation occurs
when its meaning is elaborated by the court.”). It did not
say that residual exposure is not “actual exposure.” Ra-
ther, the Veterans Court affirmed the Board’s finding that
the evidence did not support Mares’ claim of actual herbi-
cide exposure, residual or otherwise. Mares’ arguments
merely challenge the weight given to the evidence, which
we lack jurisdiction to review. See Maxson v. Gober, 230
F.3d 1330, 1333 (Fed. Cir. 2000) (“The weighing of this ev-
idence is not within our appellate jurisdiction.”).
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MARES v. MCDONOUGH 9
III. CONCLUSION
Because Mares’ arguments on appeal concern only
challenges to factual determinations, we lack jurisdiction.
See 38 U.S.C. § 7292(d)(2). We therefore dismiss this ap-
peal.
DISMISSED
COSTS
No costs.