Wheaton v. Shinseki ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD A. WHEATON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7162
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-0584, Judge Robert N. Davis.
______________________
Decided: October 15, 2013
______________________
DAN CURRY, Randles, Mata & Brown, LLC, of Kansas
City, Missouri, for claimant-appellant.
L. MISHA PREHEIM, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were STUART F. DELERY,
Principal Deputy Assistant Attorney General, JEANNE E.
DAVIDSON, Director, MARTIN F. HOCKEY, JR. Assistant
Director. Of counsel on the brief were DAVID J. BARRANS,
Deputy Assistant General Counsel, and AMANDA R.
RICHARD WHEATON v. SHINSEKI 2
BLACKMON, Attorney, United States Department of Vet-
erans Affairs, of Washington, DC.
______________________
Before NEWMAN, PLAGER, and TARANTO, Circuit Judges.
PER CURIAM
Mr. Richard Wheaton appeals the decision of the
Court of Appeals for Veterans Claims, Wheaton v.
Shinseki, No. 11-0584 (Vet. App. Mar. 26, 2012), which
affirmed the decision of the Board of Veterans Appeals
that there was not Clear and Unmistakable Error
(“CUE”) in the Regional Office’s findings relating to his
claim for service connection asbestosis.
The Regional Office (“RO”) had found in 1988 that Mr.
Wheaton’s claim, which the RO “liberally” construed to
include a claim for asbestosis, was a residual of his ser-
vice-connected tuberculosis. The RO denied his claim for
service connection asbestosis, but granted service connec-
tion for tuberculosis at a rating of 20% with an effective
date of August 24, 1988, the date of Mr. Wheaton’s claim
application.
In February 2003 Mr. Wheaton filed a petition to reo-
pen his claim to include post-traumatic stress disorder,
hearing loss, and tinnitus. In October 2003 the RO grant-
ed additional disability compensation at a rating of 30%,
based primarily on asbestosis with chronic obstructive
pulmonary disease, effective as of February 26, 2003. Mr.
Wheaton argues that he is entitled to an effective date of
1988 for the additional compensation, because the Re-
gional Office committed CUE in its 1988 decision by
failing to correctly apply the law as it existed in 1988.
Mr. Wheaton’s arguments are primarily that the VA
doctor who examined his lungs in October 1988 did not
consider his in-service asbestos exposure. The examining
physician’s medical report dated October 18, 1988 makes
RICHARD WHEATON v. SHINSEKI 3
no reference to in-service asbestos exposure. Mr.
Wheaton relies on a document that he states was provid-
ed in October 1988, but that bears a VA stamp “received
November 30, 1988,” as establishing his in-service expo-
sure to asbestos. The Veterans Court deemed the argu-
ment of medical error “speculative,” and declined to find
CUE in the 1988 decision.
On this appeal, the government states that the ques-
tions of whether and how the Regional Office, the Board,
and the Veterans Court weighed medical evidence are
questions of fact and thus are not within our appellate
jurisdiction. Issues of diagnosis or misdiagnosis, and of
whether and when evidence was provided to or considered
by a treating physician, are questions of fact, and review
by this court is not authorized. 38 USC §7292(d)(1)-(2);
see Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir.
2010) (“The evaluation and weighing of evidence and the
drawing of appropriate inferences from it are factual
determinations committed to the discretion of the fact-
finder.”).
We have carefully reviewed all of Mr. Wheaton’s ar-
guments and determine that the appeal must be dis-
missed for lack of appellate jurisdiction.
DISMISSED
COSTS
No costs.