Arrozal v. Shinseki , 396 F. App'x 698 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PRESCILLA M. ARROZAL,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7069
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 08-1597, Chief Judge William P.
Greene, Jr.
____________________
Decided: October 7, 2010
____________________
PRESCILLA M. ARROZAL, of San Rafael, Bulacan, Phil-
ippines, pro se.
DAWN E, GOODMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ARROZAL v. DVA 2
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director. Of counsel on the
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, and BRIAN D. GRIFFIN, Attorney, Office of the
General Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before GAJARSA, LINN, and PROST, Circuit Judges.
PER CURIAM.
This is an appeal by a veteran’s surviving spouse,
Prescilla M. Arrozal, seeking dependency and indemnity
compensation (“DIC”) benefits under 38 U.S.C. § 1310.
The Board of Veterans Appeals (“Board”) denied entitle-
ment to VA service-connection for the cause of Mrs. Arro-
zal’s husband’s death and the United States Court of
Appeals for Veterans Claims (“Veterans Court”) affirmed
the Board’s denial. Arrozal v. Shinseki, No. 08-1597, 2009
WL 4282836, at *4 (Vet. App. Dec. 2, 2009). Because Mrs.
Arrozal is appealing factual determinations, or at most,
the law as applied to the facts of the case, this court lacks
jurisdiction to consider her claims and the appeal is
dismissed.
BACKGROUND
Mrs. Arrozal’s husband, Pedro M. Arrozal, served on
active duty in the Philippine Commonwealth Army from
December 1941 to February 1942, and from May 1945 to
May 1946. In April 1985, Mr. Arrozal died of a cerebral
hemorrhage due to hypertension. Mr. Arrozal was not
receiving any VA benefits at the time of his death. His
service medical records (“SMRs”) do not indicate that he
had cardiovascular disease, cerebral vascular disease,
cerebral hemorrhage, or hypertension. His military
3 ARROZAL v. DVA
discharge examination revealed that he had a normal
cardiovascular system.
In October 2004, Mrs. Arrozal filed a claim with the
Manila VA Regional Office for DIC benefits under 38
U.S.C. § 1310 claiming that her husband’s death resulted
from his military service. The Regional Office denied the
claim in July 2005 and Mrs. Arrozal appealed. An affida-
vit was submitted in October 2005, which asserted that
Encarnacion Arrozal was the “attendant” of a physician
who had been treating Mr. Arrozal for hypertension since
1947. Appellee App. 59. The Board held a video confer-
ence hearing, after which it denied service-connection for
the cause of Mr. Arrozal’s death. The Board found no
medical evidence showing cardiovascular disease, cerebral
vascular disease or hemorrhage, or hypertension until
twenty-seven years after service and found that there was
no competent evidence of a nexus between any of Mr.
Arrozal’s diseases and his military service.
Mrs. Arrozal appealed to the Veterans Court claiming
that VA failed in its duty to notify as required by 38
U.S.C. § 5103(a) because VA never informed her that lay
evidence and the competency of lay witnesses could be
considered in the absence of medical evidence. The Vet-
erans Court found that the Board’s determination that
the Secretary fully complied with his section 5103(a) duty
to notify Mrs. Arrozal through a November 2004 letter
was not clearly erroneous because “the Secretary is not
required to inform her of evidence specific to her individ-
ual claim.” Arrozal, 2009 WL 4282836, at *2. Moreover,
Mrs. Arrozal’s submission of lay evidence demonstrated
actual knowledge, making “any notice error in that regard
not prejudicial.” Id. at *3.
Next, Mrs. Arrozal asserted that the Board erred in
considering the long period of time lacking any complaint
ARROZAL v. DVA 4
of hypertension by her husband. The Veterans Court held
that the Board did not commit error when it considered
Mr. Arrozal’s twenty-seven year gap between his separa-
tion from service and initial treatment for hypertension
along with other factors as part of the overall record.
Mrs. Arrozal also questioned the Board’s decision not
to give weight to the affidavit of Encarnacion Arrozal.
She argued that Encarnacion Arrozal’s evidence should
have been considered because as an attendant to the
doctor who was treating Mr. Arrozal in 1947, she “heard”
that Mr. Arrozal’s blood pressure was high. The Veterans
Court, citing Jeandreau v. Nicholson, 492 F.3d 1372, 1377
(Fed. Cir. 2007), recognized that in some situations lay
evidence may be sufficient to establish a diagnosis.
However, the Veterans Court concluded that because
none of the situations outlined in Jandreau were present
in this case, the affidavit was insufficient evidence to
establish a service-connection.
Finally, Mrs. Arrozol argued that the May 2007 Board
video conference hearing was not conducted properly. She
claimed that the hearing officer erred in only asking her
two to three questions and that the officer failed to in-
quire about the exact date of Mr. Arrozal’s diagnosis for
hypertension. Mrs. Arrozal also maintained that she was
interrupted by a lady in the video room that prevented
her from discussing evidence in her possession, and that
despite her age and poor health, she was not given prior-
ity at the video conference hearing. Upon reviewing the
transcript, the Veterans Court determined that the hear-
ing officer fulfilled his duty under 38 C.F.R. § 3.103(c)(2)
by properly asking Mrs. Arrozal whether she was aware
of any outstanding medical records not within the Board’s
possession and by giving Mrs. Arrozal ample opportunity
to present arguments and evidence. The Veterans Court
also found that Mrs. Arrozal failed to show prejudice
5 ARROZAL v. DVA
caused by the interruption and lack of priority, and that
she did not specify what additional questions the hearing
officer failed to ask.
Mrs. Arrozal timely appealed the Veterans Court’s de-
cision to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Forshey v. Principi, 284 F.3d
1335, 1338 (Fed. Cir. 2002). Under 38 U.S.C. § 7292(a)
(2006), this court has jurisdiction over rules of law or the
validity of any statute or regulation, or an interpretation
thereof relied on by the Veterans Court in its decision.
This court may also entertain challenges to the validity of
a statute or regulation, and may interpret constitutional
and statutory provisions as needed for resolution of the
matter. 38 U.S.C. § 7292(c). In contrast, except where an
appeal presents a constitutional question, this court lacks
jurisdiction over challenges to factual determinations or
laws or regulations as applied to the particular case. 38
U.S.C. § 7292(d)(2). All the issues presented here fall
within the latter proscribed categories listed in §
7292(d)(2).
On appeal, Mrs. Arrozal first argues there was evi-
dence crucial to her claim that was omitted from the
Record of Proceedings and thus certain documents were
not before the Veterans Court. Not only were these
documents cited as part of the Record Before the Agency
(“RBA”) and thus considered by the Veterans Court in its
finding, but to the extent that Mrs. Arrozal is arguing the
Veterans Court should have added evidence outside the
RBA to the record, the Veterans Court may not review
findings of fact by the Secretary or the Board de novo. 38
U.S.C. § 7261(c). Furthermore, this court may not re-
evaluate the weight given by the Board or the Veterans
ARROZAL v. DVA 6
Court to certain pieces of evidence, as this raises an issue
of fact beyond our jurisdiction. Maxon v. Gober, 230 F.3d
1330, 1333 (Fed. Cir. 2000).
Second, Mrs. Arrozal contends that the November
2004 notice letter violated the Veterans Claims Assis-
tance Act (“VCAA”) because it failed to inform her that lay
evidence and the competence of a lay witness could be
considered by VA. She also argues that “VCAA of 2000 is
a constitutional law” and thus attempts to frame her
argument as involving a constitutional issue. Appellant
Br. 2. However, the question of whether the language of
the 2004 letter satisfied VCAA notice requirements under
38 U.S.C. § 5103(a) is one of fact not raising any constitu-
tional issues, and thus we do not have jurisdiction to
entertain this matter. Mayfield v. Nicholson, 499 F.3d
1317, 1322 (Fed. Cir. 2007). This court is also without
jurisdiction to review the factual finding by the Veterans
Court that Mrs. Arrozal was not prejudiced by VA’s
alleged failure to inform her that she could submit lay
evidence because she showed actual knowledge by sub-
mitting such lay evidence before the Board. See
Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
2007).
Mrs. Arrozal next challenges the extension of time
granted to the Secretary before the Veterans Court.
Because this is simply an application of the relevant facts
justifying an extension of time applied to the court’s
procedural rules, this issue is beyond this court’s jurisdic-
tion. See 38 U.S.C. § 7292.
Mrs. Arrozal also suggests there was some impropri-
ety between the Secretary and the Chief Judge of the
Veterans Court. Mrs. Arrozal points to the short time
between the filing of the Supplemental Record in the
Veterans Court on November 30, 2009 and the issuance of
7 ARROZAL v. DVA
the Memorandum Decision on December 2, 2009, as well
as similarities between the Secretary’s brief and the
Memorandum Decision as evidence of some impermissible
complicity. Mrs. Arrozal’s concerns are without justifica-
tion. The Veterans Court clearly considered the Supple-
mental Record and the fact that the Veterans Court
agreed with the legal analysis of the VA does not suggest
any wrongdoing. To the extent that Mrs. Arrozal is
arguing that there are incorrect statements of fact consid-
ered by the Veterans Court, this is a factual issue not
within this court’s jurisdiction.
Similarly, this court is precluded from reviewing Mrs.
Arrozal’s argument that the transcript from the video
hearing is factually inaccurate and that the Veterans
Court erred by considering it because it is an issue of fact
beyond this court’s jurisdiction.
Finally, Mrs. Arrozal’s bald assertion that there ex-
isted a nexus between her husband’s 1945 in-service
medical record and his death is unsubstantiated. In fact,
the RBA shows that Mr. Arrozal had normal blood pres-
sure readings in the May 1945 examination cited by the
appellant and even had normal readings prior to dis-
charge in May 1946. Under § 7292(d)(2) we are without
jurisdiction to review the findings of fact that none of the
medical evidence shows cardiovascular disease, cerebral
vascular disease or hemorrhage, or hypertension until
approximately twenty-seven years post-service and that
there is no competent evidence of a nexus between either
of the veteran’s fatal diseases and any incident of service.
CONCLUSION
Because Mrs. Arrozol’s appeal involves neither the va-
lidity or interpretation of a statute or regulation, nor a
Constitutional challenge, this court is statutorily pre-
ARROZAL v. DVA 8
cluded from considering her claims. Accordingly, the
appeal is dismissed.
No Costs.