Barney v. Dept. Of Veterans Affairs ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JAMES L. BARNEY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7187
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-2964, Judge Robert N.
Davis.
____________________________
Decided: February 10, 2012
____________________________
JAMES L. BARNEY, of Shaker Heights, Ohio, for pro se.
DAVID D’ALESSANDRIS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and SCOTT D. AUSTIN, Assistant Director. Of counsel on
BARNEY v. DVA 2
the brief was DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before NEWMAN, LOURIE, and MOORE, Circuit Judges.
PER CURIAM.
James L. Barney appeals from the decision of the
United States Court of Appeals for Veterans Claims (the
“Veterans Court”) that affirmed the Board of Veterans’
Appeals (the “Board”) decision denying Barney entitle-
ment to veteran’s benefits. Barney v. Shinseki, No. 08-
2964 (Vet. App. Feb. 25, 2011). Because the Veterans
Court did not err and we lack jurisdiction over factual
issues, we affirm in part and dismiss in part.
BACKGROUND
James Barney served on active duty in the United
States Air Force from November 1959 to October 1961.
While on active duty in August 1961, Barney underwent
hernia surgery for a right inguinal hernia. From that
surgery, the Department of Veterans Affairs (the “VA”)
has granted Barney service connection for the postopera-
tive residuals of a right inguinal hernia.
In this proceeding, Barney claims that a back disorder
is connected to his service in the Air Force, specifically
arguing that his back disorder is connected to his inguinal
hernia and resulting surgery. Barney also filed a claim
for a total disability rating based on unemployability
(“TDIU”). In 2008, the Board denied Barney’s claim,
finding that Barney’s back disorder was not causally
related to his active service. J.A. 17. In reaching that
determination, the Board found that Barney did not
3 BARNEY v. DVA
provide the VA with an accurate medical history. J.A. 28.
The Board also denied Barney’s TDIU claim.
Barney appealed to the Veterans Court, arguing that
the Board did not provide an adequate basis for finding a
lack of service connection, including the Board’s finding
that Barney did not provide accurate information to the
VA. The court rejected Barney’s arguments and upheld
the Board’s decision. J.A. 1.
After the opinion issued, Barney terminated his at-
torney and, representing himself, filed a motion for recon-
sideration. In his motion, Barney argued that the court
should reconsider its decision because his former attorney
failed to include two forms in the Record of Proceeding,
specifically Air Force Forms 509 and 75, although those
documents appeared in the Record Before the Agency.
According to Barney, the documents show that, only 20
days after the hernia surgery, the Air Force doctor dis-
charged Barney to perform duties that included heavy
lifting. In an email attached to Barney’s motion, Barney’s
attorney explains that he did not include those forms in
the Record of Proceeding because, while the forms were
relevant to showing Barney’s course of treatment and
subsequent duties, “when drafting the arguments, there
was sufficient other evidence in my opinion that sup-
ported these propositions.” J.A. 11. The Veterans Court
denied Barney’s motion for reconsideration, J.A. 14, and
Barney thereafter appealed to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Under 38 U.S.C. § 7292(a), a
party may obtain review “with respect to the validity of a
decision of the Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on
BARNEY v. DVA 4
by the Court in making the decision.” Under § 7292(d)(2),
however, absent a constitutional issue we “may not review
(A) a challenge to a factual determination, or (B) a chal-
lenge to a law or regulation as applied to the facts of a
particular case.”
Barney argues on appeal that the Veterans Court
committed legal error, including violating his due process
rights, because it failed to consider Air Force Forms 509
and 75. We disagree. First, the Veterans Court did not
construe a statute or regulation in its opinion, and hence
it committed no legal error. Second, Barney’s allegations
arise from his attorney’s decision not to include Forms
509 and 75 in the Record of Proceeding, a decision that
Barney is bound by. “It is well settled that a person is
bound by the consequences of his representative’s con-
duct, which includes both his acts and omissions.” Rowe
v. Merit Sys. Prot. Bd., 802 F.2d 434 (Fed. Cir. 1986)
(collecting cases). Thus, the actions of Barney’s attorney
in this proceeding were legally the actions of Barney
himself and those actions have not been shown to be
prejudicial.
Barney also argues that the ultimate finding on ser-
vice connection was clearly erroneous because it conflicts
with a 1991 medical record that allegedly shows a service
connection. We lack jurisdiction, however, to review the
factual determination of service connection. Johnson v.
Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991) (holding
that a denial of entitlement to service connection is a
factual determination that we may not review). And, in
any event, the 1991 medical record does not, on its face,
appear to relate to Barney’s back disorder.
We have considered Barney’s remaining arguments
and conclude that they are without merit.
AFFIRMED IN PART and DISMISSED IN PART
5 BARNEY v. DVA
COSTS
Each party shall bear its own costs.