Swafford v. McDonald ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT L. SWAFFORD,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1488
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-3984, Judge Bruce E. Kasold.
______________________
Decided: November 8, 2016
______________________
ROBERT L. SWAFFORD, West Frankfort, IL, pro se.
ANTHONY F. SCHIAVETTI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., SCOTT D. AUSTIN; MARTIN JAMES
SENDEK, Y. KEN LEE, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
2 SWAFFORD v. MCDONALD
Before TARANTO, LINN, and STOLL, Circuit Judges.
PER CURIAM.
Robert L. Swafford appeals the final judgment of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”). Because Mr. Swafford fails to appeal
a question within our jurisdiction, we dismiss.
BACKGROUND
Mr. Swafford is an Army veteran who served on active
duty from February 1953 to December 1954, including
service in Korea during the Korean War. In the 1990s,
Mr. Swafford lost his hearing. In 2007, he filed a claim
for service-connected benefits for tinnitus and bilateral
hearing loss. A Veterans Administration examiner re-
viewed his medical history, performed an examination,
and concluded that it was “less likely than not” that
Mr. Swafford’s hearing loss and tinnitus were related to
his in-service noise exposure. App. 23–24. The examiner
noted that Mr. Swafford had shown normal hearing
sensitivities when discharged from the Army and that in
the years since his discharge he had a history of noise
exposure working in housing construction.
Following the examination, the Regional Office (“RO”)
denied Mr. Swafford’s claims. Mr. Swafford challenged
that denial before the RO and later the V.A. Board of
Appeals (“Board”), but both affirmed the original denial.
He then appealed to the Veterans Court, which granted
Mr. Swafford a remand. The court found that the Board
had failed to support its decision with an adequate state-
ment of reasons or bases and that it had relied on an
inadequate medical examination to render its decision.
On remand, the Board requested an expert medical
opinion from the Veterans Health Administration as to
whether Mr. Swafford’s hearing loss likely began in, or
was caused by, his time in service. A clinical audiologist
SWAFFORD v. MCDONALD 3
reviewed Mr. Swafford’s condition and concluded that his
service did not likely cause his hearing loss, but rather its
cause was likely “a combination of factors: his civilian
occupational noise exposure, his recreational firearm use,
genetics, and/or the aging process.” App. 59–60. Follow-
ing this new opinion, Mr. Swafford submitted additional
evidence and the Board remanded the case to the RO.
On remand, the RO again denied Mr. Swafford’s
claim. Mr. Swafford appealed, and the Board affirmed.
Its eighteen-page opinion reflected a detailed considera-
tion of the record evidence. The Board concluded that
“the VA examiners provided sound reasoning in the
analysis of the situation” and “[t]he VA medical special-
ists reviewed in detail the pertinent medical records,
discussed the salient facts, and provided a complete
rationale for all conclusions presented.” App. 94.
Mr. Swafford appealed that judgment to the Veterans
Court. Through counsel, he asserted that the Board
relied on an inadequate medical report, failed to comply
with the original remand order, and provided inadequate
reasons and bases for its decision. The Veterans Court
disagreed. It affirmed the Board’s findings that the
medical report was adequate and that the report complied
with the remand order’s requirement to consider lay
evidence. The court further found that the Board’s deci-
sion provided sufficient reasons and bases for its opinion.
Mr. Swafford timely appealed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. We may review legal ques-
tions such as those relating to the interpretation of consti-
tutional and statutory provisions. 38 U.S.C. § 7292(c).
But we may not review factual determinations or applica-
tion of law to fact, except to the extent an appeal presents
a constitutional issue. Id. § 7292(d)(2).
4 SWAFFORD v. MCDONALD
We do not have jurisdiction to decide the issues that
Mr. Swafford appeals. Mr. Swafford challenges the
qualifications and competency of the audiologist who
conducted the review of his medical history. But we have
previously held that “the adequacy of a medical opinion is
a matter beyond our appellate jurisdiction.” Prinkey v.
Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013).
Mr. Swafford also challenges the merits of the Board’s
benefits determination. He argues that, as a right-
handed rifleman, he could have suffered left ear damage,
so his left ear damage has a service connection. Appellant
Br. 2. And he argues that the Board misstated his dates
of service. 1 Id. at 1. He thus requests that this court
“declare all actions of the VA Board of Appeals taken after
the first remand, null and void” and asks that we “award
Swafford a just amount of compensation without delay.”
Id. at 2. We cannot review these arguments, however, as
they each attack the factual underpinnings of the Board’s
denial of Mr. Swafford’s claim but do not implicate a
question of law over which we have jurisdiction. See
38 U.S.C. § 7292(c).
Besides challenging the merits of his benefits deter-
mination, Mr. Swafford also alleges that the Board “ap-
parently conspired with two audiologist[s] not qualified as
witnesses” and that “[f]alse witnesses of no knowledge of
fact made discriminating statements against Veteran
Robert Swafford.” Appellant Br. 1. Mr. Swafford alleges
1 The Board noted that Mr. Swafford “had active
service from February 1953 to September of 1954, to
include service in Korea.” App. 80. While this statement
by the Board did not play any role in its ultimate denial of
Mr. Swafford’s claims, it appears to be in error.
Mr. Swafford’s form DD 214 shows that he entered mili-
tary service on February 13, 1953, and was released from
service on December 23, 1954. App. 14.
SWAFFORD v. MCDONALD 5
that these are constitutional issues within this court’s
jurisdiction. The Government responds that these claims
are not actually constitutional in nature, but rather
“amount[] merely to a disagreement with the contents of
the examiner’s report.” Appellee Br. 10. We agree. To
the extent that Mr. Swafford might call his claims consti-
tutional, “his claim is constitutional in name only.” Helfer
v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999); see also
Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996)
(“We examine the substance of these allegations, rather
than the plaintiff’s labels, to determine their true na-
ture.”) Mr. Swafford is arguing the factual merits of his
claim, “not raising a separate constitutional contention.”
Helfer, 174 F.3d at 1335. As such, we have no jurisdiction
to reach his allegations.
Because Mr. Swafford raises only factual disputes be-
yond our jurisdiction, we dismiss.
DISMISSED
COSTS
No costs.