Wright v. McDonald ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GLENNA F. WRIGHT, (SUBSTITUTED FOR GLEN
A. WRIGHT, SR.),
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7133
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2206, Judge Robert N. Davis.
______________________
Decided: January 29, 2016
______________________
MAXWELL DOUGLAS KINMAN, Alexander, Webb, and
Kinman, Mason, OH, for claimant-appellant.
AGATHA KOPROWSKI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER; Y. KEN LEE, MARTIN JAMES
2 WRIGHT v. MCDONALD
SENDEK, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Before NEWMAN, CLEVENGER, and O’MALLEY, Circuit
Judges.
NEWMAN, Circuit Judge.
Glenna F. Wright, widow of U.S. Army Veteran Glen
A. Wright, Sr., appeals the July 22, 2014 ruling of the
United States Court of Appeals for Veterans Claims
(Veterans Court) affirming the decision of the Board of
Veterans’ Appeals (Board) denying him service connection
for his respiratory illness.
Mr. Wright served in the armed forces from 1964 to
1967, including service in Vietnam. He died during the
pendency of this appeal, which is carried on by his wife.
During his service in Vietnam, Mr. Wright spent 23 days
aboard the USS Breckenridge, a ship that was later
decommissioned due to the presence of asbestos. He was
also exposed to asbestos on base in Georgia, and he was
exposed to Agent Orange in Vietnam. His respiratory
illness was determined to be chronic obstructive pulmo-
nary disease (COPD). This ailment, however, does not
have an automatic compensable rating for service connec-
tion, as does emphysema. The Board determined that the
medical evidence does not support a connection between
Mr. Wright’s military service and his COPD, and the
Veterans Court affirmed.
On appeal from the Veterans Court’s review of deci-
sions of the Board, this court reviews validity of the
decision “on a rule of law or of any statute or regula-
tion…or interpretation thereof (other than a determina-
tion as to a factual matter) that was relied on in the
making of the decision.” 38 U.S.C. § 7292(a). Interpreta-
tions of statute are questions of law, and receive appellate
review. Willsy v. Peale, 535 F.3d 1368, 1370-73 (Fed. Cir.
WRIGHT v. MCDONALD 3
2008). However, the only situation in which we may
review factual findings of the Veterans Court or the Board
is when a constitutional issue is presented. Guillory v.
Shinseki, 603 F.3d 981, 986 (Fed. Cir. 2010) (citing 38
U.S.C. § 7292(d)(2)).
DISCUSSION
Mrs. Wright states that she is not raising a factual
question, and that the issue is whether her husband
received due process of law when the Veterans Court
relied on VA medical examinations and opinions that
contained insufficient detail to support the conclusion
reached, and that do not adequately address the service
connection of his disabilities. The government responds
that these are factual questions, not subject to our review,
or, in the alternative, that the medical evidence presented
was sufficient for the determination reached by the Board.
The Secretary of Veterans Affairs assists veterans in
applying for compensation. Included in this duty to assist
is the obligation of “providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.” 38
U.S.C. § 5103A(d)(1). In such events, the VA must con-
duct a “thorough and contemporaneous medical examina-
tion.” Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
Mrs. Wright’s argument is that the medical examiner
of her late husband did not correctly opine whether expo-
sure to either or both hazardous substances may have
caused his COPD. This contention does not call upon this
court to interpret any statute or regulation, and concerns
determinations of fact, jurisdiction over which we lack.
Mrs. Wright argues that there is a bona fide due pro-
cess violation regarding the sufficiency of the medical
opinion under the requirements of 38 U.S.C. § 5103A.
However, the characterization of an issue as constitution-
al “does not confer upon [this Court] jurisdiction that [it]
4 WRIGHT v. MCDONALD
otherwise lack[s].” Helfer v. West, 174 F.3d 1332, 1335
(Fed. Cir. 1999).
The medical examinations afforded Mr. Wright, are
held to the standard that they enable the Board “to con-
clude that a medical expert has applied valid medical
analysis to the significant facts of the particular case in
order to reach the conclusion submitted in the medical
opinion.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295,
304 (2008).
The medical examinations and attendant opinions
took place over the course of two remands directing addi-
tional development, in an effort to assist Mr. Wright with
his claim, and were expanded to include records from
private physicians treating him and the Social Security
Administration. The examiner’s opinion concerning
“veteran’s active military service” – including any “in-
service injury, event, or illness” – encompassed Mrs.
Wright’s contention of the possibility of his COPD being
“caused by both exposure to Agent Orange and asbestos.”
The examiner explained his conclusion that Mr. Wright’s
respiratory condition was more likely caused by his exten-
sive tobacco use, and not to service exposure.
This court has explained:
We have been asked on several occasions to
exercise our jurisdiction to judge the sufficiency of
a medical opinion. In each instance, . . . we have
dismissed the appeals for want of jurisdiction on
the ground that whether a medical opinion is ade-
quate is a question of fact. . . . In each of these
several cases, we correctly determined that the
sufficiency of a medical opinion is a matter beyond
our jurisdictional reach, because the underlying
question is one of fact.
WRIGHT v. MCDONALD 5
Prinkey v. Shinseki, 735 F.3d 1375, 1383 (Fed. Cir.
2013). Thus, the decision of the Court of Veterans Claims
must be
AFFIRMED.
No costs.