Burnley v. Shulkin ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN R. BURNLEY,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1965
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4108, Senior Judge Lawrence
B. Hagel.
______________________
Decided: September 11, 2017
______________________
JOHN R. BURNLEY, Richmond, VA, pro se.
MARIANA TERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., STEVEN J. GILLINGHAM; Y. KEN LEE, LARA EILHARDT,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 BURNLEY v. SHULKIN
______________________
Before DYK, LINN, and HUGHES, Circuit Judges.
PER CURIAM.
John Burnley appeals a decision of the United States
Court of Appeals for Veterans Claims (“Veterans Court”).
Burnley alleges that he was assaulted by another service-
member during his time in service in 1972, resulting in a
lower back disability that continues to this day. The
Board of Veterans’ Appeals (“Board”) found Burnley’s
testimony and supporting evidence not credible and
denied Burnley’s claim for disability compensation. The
Veterans Court affirmed. We dismiss Burnley’s appeal for
lack of jurisdiction.
BACKGROUND
Burnley served in the Marine Corps from February 4,
1972, to February 28, 1972. He was discharged for “men-
tal inaptitude.” S.A. 1. His discharge physical exam
“revealed no abnormalities of any kind and [Burnley at
the time of discharge] denied experiencing recurrent back
pain.” S.A. 2.
In 2006, Burnley filed a VA disability claim for a
lower back disability under 38 U.S.C. § 1110. At a 2011
Board hearing for his claim, Burnley testified that during
his time in service, “he was beaten by a fellow Marine,”
which resulted in a back injury. S.A. 2. Thus, according to
Burnley, his current lower back disability is service
connected. Burnley also testified that he was discharged
“to cover up the battery.” S.A. 33. At another Board
hearing, two of Burnley’s friends testified that “they were
not aware of him having any disabilities before entering
service and, after returning from service, he sometimes
walked bent over and more slowly.” S.A. 30. Burnely also
presented a statement to the Board from a private physi-
cian, who stated that after examining Burnley in 2012
BURNLEY v. SHULKIN 3
and “[b]ased on the history presented by [Burnley] and
the medical records reviewed, it is fair to believe more
likely than not that this back injury did have its onset in
February 1972 as a result of a physical altercation.” S.A.
31.
The Board denied Burnley’s claim because it found his
testimony and his supporting evidence “not credible.” S.A.
35.
First, the Board found that Burnley’s statements were
“inconsistent” and “in contradiction” with one another
with respect to the key issue of when the alleged attack
took place. S.A. 32. At times, Burnley testified that he
was attacked prior to the Marine Corp’s decision to dis-
charge him, while at other times, Burnley stated that he
was attacked after his discharge examination. The Board
found that “such alteration/revision of [Burnley’s] account
of the pertinent alleged in-service [connection] significant-
ly diminishes the credibility of the Veteran’s testimony.”
S.A. 35.
Second, the Board noted that Burnley asserted that
he sought “treatment for a back disability” between 1972
and 1976, but that the relevant medical records from this
period have been destroyed because of his physician’s
death. S.A. 26. However, “available . . . records are silent
for any complaints or findings regarding the lower back
prior to November 1996,” id., and Burnley’s private
treatment records “indicate that [Burnley] recalled that
. . . his back complaints . . . had their onset in approxi-
mately 2005 (around the time he was involved in an
automobile accident),” S.A. 39.
Finally, the Board found Burnley’s private physician’s
opinion that his back injury “more likely than not” dates
back to 1972, S.A. 4, to be unpersuasive, “because it was
not based on a thorough review of all the evidence of
record but instead was based predominantly on the Vet-
4 BURNLEY v. SHULKIN
eran’s self-reported history and a current physical exami-
nation,” S.A. 41. Instead, the Board found that the VA
physician’s opinion, which concluded that Burnley’s injury
was “less likely than not incurred in or caused by service,”
S.A. 3, to be “entitled to great probative weight, as it took
into account a thorough review of the Veteran’s claims file
and medical history,” S.A. 40.
Burnley appealed the Board’s decision to the Veterans
Court. The Veterans Court affirmed the Board’s determi-
nation, holding that the Board’s credibility determina-
tions “are not clearly erroneous and are supported by
adequate reasons.” S.A. 1.
Burnley appeals to our court.
DISCUSSION
Under 38 U.S.C. § 7292(a), we have jurisdiction to
review a decision of the Veterans Court only “with respect
to the validity of a decision of the Court on a rule of law or
of any statute or regulation . . . or any interpretation
thereof.” Absent a constitutional issue, we “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).
Here, Burnley challenges the Board’s credibility
determinations, emphasizing that “[t]he issue of ‘credibil-
ity’” is central to this appeal. Appellant Br. 1. Specifically,
Burnley appears to argue that the Veterans Court incor-
rectly weighed the evidence with respect to his claim, in
violation of the statutory directive that “[w]hen there is
an approximate balance of positive and negative evidence
regarding any issue material to the determination of a
matter, the Secretary shall give the benefit of the doubt to
the claimant.” 38 U.S.C. § 5107. However, under 38
U.S.C. § 7292, “[w]hether the Veterans Court was correct
in affirming the Board’s credibility determination is a
BURNLEY v. SHULKIN 5
question of fact beyond this court’s jurisdiction.” Gardin v.
Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010); see also
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000)
(“The weighing of [presented] evidence is not within our
appellate jurisdiction.”).
Burnley also appears to argue that the Board’s credi-
bility determinations constitute a “violat[ion] [of his] due
process rights.” Appellant Br. 1. Burnley’s “characteriza-
tion of [his case] as constitutional in nature does not
confer upon us jurisdiction that we otherwise lack.” Helfer
v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). Where an
appellant’s “allegation, in substance, amounts to no more
than an allegation that the Board and Veterans Court
erroneously weighed the facts, it is constitutional in name
only, and this court lacks jurisdiction.” Howlett v.
Shinseki, 431 F. App’x 925, 928 (Fed. Cir. 2011).
We have considered the appellant’s remaining argu-
ments and find them without merit. We dismiss Burnley’s
appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.