NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JANICE M. AUSTIN,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1993
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-531, Judge Amanda L. Mere-
dith.
______________________
Decided: December 4, 2019
______________________
JANICE M. AUSTIN, Lake Wales, FL, pro se.
MARGARET JANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR.; CHRISTINA LYNN GREGG, Y. KEN LEE, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
Before REYNA, WALLACH, and HUGHES, Circuit Judges.
2 AUSTIN v. WILKIE
PER CURIAM.
Appellant Janice M. Austin appeals a decision from the
U.S. Court of Appeals for Veterans Claims (“Veterans
Court”), which affirmed the Board of Veterans’ Appeals’
(“Board”) denial of service-connected death benefits for her
late husband, George Austin, who passed away due to
esophageal cancer. Austin v. Wilkie, No. 18-531,
2019 WL
1436874, at *4 (Vet. App. Mar. 29, 2019). Because we lack
jurisdiction, we dismiss.
DISCUSSION
I. Standard of Review and Legal Standard
“The jurisdiction of this court to review decisions of the
Veterans Court is limited by statute.” Gazelle v. Shulkin,
868 F.3d 1006, 1009 (Fed. Cir. 2017) (citation omitted). We
may “review and decide any challenge to the validity of any
statute or regulation or any interpretation
thereof . . . and . . . interpret constitutional and statutory
provisions, to the extent presented and necessary to a deci-
sion.” 38 U.S.C. § 7292(c) (2012). Absent a constitutional
issue, we lack subject matter jurisdiction over an appeal
that raises “(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.”
Id. § 7292(d)(2); see Wanless v.
Shinseki,
618 F.3d 1333, 1336 (Fed. Cir. 2010).
II. We Lack Jurisdiction over Ms. Austin’s Appeal
Ms. Austin’s appeal involves neither the interpretation
of a statute or regulation nor a constitutional issue; in-
stead, Ms. Austin challenges only factual determinations
that we may not review. See Appellant’s Br. 1–2. First,
Ms. Austin contends that the Veterans Court incorrectly
rejected the “causative factors” linking an “exposure to
Agent Orange/Dioxin and esophageal cancer and related
illness.”
Id. at 1. Mr. Austin, a U.S. Army veteran who
served in the Vietnam died in 2000 of metastatic esopha-
geal cancer, with underlying causes of renal failure second-
ary to cisplatin. Austin,
2019 WL 1436874, at *1. There is
no presumptive service connection for esophageal cancer
based on exposure to herbicide agents during the Vietnam
AUSTIN v. WILKIE 3
War. See 38 U.S.C. § 1116(a)(1) (granting a presumptive
service connection for certain diseases for veterans who
served in the Vietnam War),
id. § 1116(a)(2) (listing dis-
eases that qualify for the presumptive service connection,
not including esophageal cancer). 1 To the extent that Ms.
Austin seeks review of the determination that there was no
causal connection between Mr. Austin’s esophageal cancer
and his exposure to Agent Orange, it is a factual determi-
nation that cannot be disturbed by this court.
Id.
§ 7292(d)(2); see Prinkey v. Shinseki,
735 F.3d 1375, 1382
(Fed. Cir. 2013) (explaining that we “[have] no power to re-
solve any factual dispute in a case decided by the Veterans
Court”). 2
Second, Ms. Austin argues that the medical expert
failed to meet “requirements through qualified knowledge”
to provide testimony. See Appellant’s Br. 1, see also
id.
(averring that the medical expert’s testimony should be
stricken as the expert failed to have the requisite “educa-
tion, experience, [or] . . . practic[e]”). To the extent that
Ms. Austin seeks to challenge the medical examiner’s
1 For the purposes of § 1116, an “herbicide agent”
“means a chemical in an herbicide used” during the Vi-
etnam War, 38 U.S.C. § 1116(a)(3), including Agent Or-
ange, see Procopio v. Wilkie,
913 F.3d 1371, 1373 (Fed.
Cir. 2019).
2 Mr. Austin was also diagnosed with diabetes melli-
tus type II, see Appellee’s App. 105, a disease which is in-
cluded in the list of diseases qualifying for the presumptive
service connection, see 38 U.S.C. § 1116(a)(2)(H). The Vet-
erans Court affirmed the Board’s finding that esophageal
cancer was the cause of Mr. Austin’s death. See Austin,
2019 WL 1436874, at *1. To the extent that Ms. Austin
contends that the Veterans Court erred in failing to grant
the presumption for Mr. Austin’s death on those grounds,
see Appellant’s Br. 2 (seeking a grant of service connection
for Mr. Austin’s death from due to both “esophageal can-
cer . . . [and] Diabetes Mellitus II” (emphasis added)), the
cause of death is a factual finding and not properly before
us, see
Prinkey, 735 F.3d at 1382.
4 AUSTIN v. WILKIE
competency or credibility, we lack the jurisdiction to ad-
dress the argument, as it was not raised before the Board.
See Francway v. Wilkie,
940 F.3d 1304, 1307 n.1 (Fed.
Cir. 2019) (en banc) (providing that we do not have juris-
diction to review medical examiner competency where the
veteran failed to raise that issue before the Board). 3
CONCLUSION
We do not have jurisdiction to review this appeal. Ac-
cordingly, Ms. Austin’s appeal from the U.S. Court of Ap-
peals for Veterans Claims is
DISMISSED
COSTS
No costs.
3 To support this argument, Ms. Austin relies upon
the Veterans’ Dioxin and Radiation Exposure Compensa-
tion Standards Act. See Appellant’s Br. 2; see also 38
U.S.C. § 5107(b) (requiring the VA to “consider all infor-
mation and law and medical evidence of record in a case
before the Secretary with respect to benefits under [VA]
laws”). Section 5107(b) does not apply in cases where the
Board has ruled against a veteran’s benefit claim by a pre-
ponderance of the evidence, see Ortiz v. Principi,
274
F.3d 1361, 1364 (Fed. Cir. 2001) (“[T]he benefit of the
doubt rule [§ 5107(b)] is inapplicable when the preponder-
ance of the evidence is found to be against the claimant.”),
as occurred here, see Appellee’s App. 22.
