Hornbeak v. McDonald , 673 F. App'x 1002 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMA E. HORNBEAK,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1682
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2156, Judge Alan G. Lance, Sr.
______________________
Decided: January 17, 2017
______________________
SANDRA E. BOOTH, Law Office of Sandra E. Booth, Co-
lumbus, OH, argued for claimant-appellant.
MELISSA BAKER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.,
BENJAMIN C. MIZER; JONATHAN KRISCH, Y. KEN LEE, Office
of General Counsel, United States Department of Veter-
ans Affairs, Washington, DC.
2 HORNBEAK v. MCDONALD
______________________
Before O’MALLEY, BRYSON, and REYNA, Circuit Judges.
O’MALLEY, Circuit Judge.
Norma Hornbeak appeals from a decision of the Unit-
ed States Court of Appeals for Veterans Claims (“the
Veterans Court”) which affirmed a decision of the Board
of Veterans’ Appeals (“the Board”). Hornbeak v. McDon-
ald, No. 14-2156, 2015 WL 5255347 (Vet. App. Sept. 10,
2015). Because Mrs. Hornbeak does not raise any issues
on appeal that are within our jurisdiction, we accordingly
dismiss.
This appeal concerns Edward Hornbeak’s entitlement
to benefits for military service during World War II, now
pursued by Mrs. Hornbeak, his surviving wife. Specifical-
ly, Mrs. Hornbeak seeks burial benefits predicated on
entitlement to service connection for Mr. Hornbeak’s lung
cancer, on the theory of exposure to carcinogenic radia-
tion. The Regional Office and the Board denied Mrs.
Hornbeak’s claim, finding that the preponderance of the
evidence weighed against finding that Mr. Hornbeak was
within ten miles of Nagasaki or otherwise exposed to
ionizing radiation while in service. In particular, the
Board rejected lay statements previously made by Mr.
Hornbeak regarding service proximate to Nagasaki as not
credible, noting (1) varying details and inconsistency in
his statements over time, as well as (2) the absence of an
entry in the service records with respect to Nagasaki.
Mrs. Hornbeak timely appealed to the Veterans
Court, making two central arguments. First, she argued
that the Board clearly erred in finding Mr. Hornbeak’s lay
statements not credible due to the alleged variation and
inconsistency. Second, she argued that the Board im-
properly relied on the absence of corroborating service
records as substantive discrediting evidence. The Veter-
ans Court addressed the first argument, finding no issues
HORNBEAK v. MCDONALD 3
with the Board’s analysis: “In all, the Court cannot con-
clude that the Board clearly erred when it determined
that Mr. Hornbeak’s lay statements lacked credibility
based on the inconsistencies in those statements.” Id. at
*3. The Veterans Court determined that it did not, there-
fore, need to reach Mrs. Hornbeak’s second argument, as
it constituted harmless error:
As the inconsistencies in Mr. Hornbeak’s state-
ments were thus a sufficient basis for the Board to
find those statements not credible, the Court need
not consider the appellant’s remaining arguments
regarding the Board’s credibility findings. At
best, those alleged errors are not prejudicial. See
38 U.S.C. § 7261(b)(2) (requiring the Court to
“take due account of the rule of prejudicial error”);
Shinseki v. Sanders, 556 U.S. 396, 406 (2009).
Id. at *4.
Mrs. Hornbeak timely appeals the Veterans Court’s
decision to this court, relying on the same argument made
below with respect to Mr. Hornbeak’s service records.
Specifically, she argues that the Board erred by treating
“the absence of evidence of a matter in a record” as “sub-
stantive evidence that the matter did not occur.” Appel-
lant Br. at 13 (citing AZ v. Shinseki, 731 F.3d 1303 (Fed.
Cir. 2013)). The Veterans Court’s “decision not to review”
that “prejudicial” issue, she argues, was error. Id. at 20.
We do not have jurisdiction to address the merits of
Mrs. Hornbeak’s argument. The Veterans Court affirmed
the Board’s decision explicitly without reliance on the
absence of service record evidence. We may not, there-
fore, rule on that issue. Cromer v. Nicholson, 455 F.3d
1346, 1349 (Fed. Cir. 2006) (“If the Veterans Court af-
firmed without reaching the adverse presumption issue,
its disposition of the case could not be altered by the
adoption of ‘the position urged,’ and we again would lack
jurisdiction . . . .”). It is, moreover, well-established that
4 HORNBEAK v. MCDONALD
this court is without jurisdiction to review the Veterans
Court’s determinations over whether alleged Board errors
are harmless:
We do not have a record before us that would
permit us to offer an informed legal construction
of exactly what the Veteran’s Court must do when
it “take[s] due account” of prejudicial error, and
we would surpass our jurisdiction if we were to
apply the harmless error rule as codified in sec-
tion 7261(b)(2) to the facts of this case.
Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004).
CONCLUSION
Because Mrs. Hornbeak does not raise any issues that
are within this court’s jurisdiction, we must accordingly
dismiss her appeal.
DISMISSED