Tucker v. Dept. Of Veterans Affairs , 484 F. App'x 525 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EDWARD J. TUCKER, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7081
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-3387, Judge Alan G.
Lance, Sr.
_________________________
Decided: June 11, 2012
_________________________
EDWARD J. TUCKER, JR., of Dallas, Texas, pro se.
A. BONDURANT ELEY, 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 STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
TUCKER v. SHINSEKI 2
Of counsel on the brief was MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, United States Department of
Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Edward J. Tucker, Jr. (“Mr. Tucker”) appeals from the
decision of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”) affirming the judgment of
the Board of Veterans Appeals (“Board”). Tucker v.
Shinseki, No. 10-3387, 2012 WL 28657 (Vet. App. Jan. 6,
2012) (“Vet. Ct. Op.”). The Board determined that the
U.S. Depatment of Veterans Affairs (“VA”) had met its
duty to assist Mr. Tucker and that the evidence in the
record did not establish a service connection for his multi-
ple sclerosis (“MS”). Appealing from this decision to the
Veterans Court, Mr. Tucker argued that the Board erred
in determining that the VA satisfied its duty to assist
because the Board did not determine the reason for his
discharge and it failed to obtain a medical nexus opinion.
Vet. Ct. Op. at *1–3. The Veterans Court affirmed the
Board’s judgment because it concluded that the Board did
not err when it determined that the VA had satisfied its
duty to assist Mr. Tucker. Vet. Ct. Op. at *5. On appeal,
Mr. Tucker in his informal brief, submitted on Form 13,
provides no argument as to why this court should reverse
the Veterans Court’s judgment; he simply asserts that the
Veterans Court’s decision “involve[d] the validity or
interpretation of a statute or regulation.” After reviewing
the Veterans Court’s decision, we conclude that it does not
involve the validity or interpretation of a statute or regu-
lation. Mr. Tucker’s appeal, therefore, does not raise any
issue over which we have jurisdiction. We, accordingly,
dismiss for lack of jurisdiction.
3 TUCKER v. SHINSEKI
BACKGROUND
Mr. Tucker served in the U.S. Army from April 1977
to September 1977. In his enlistment medical history
report, Mr. Tucker indicated that he had “ear, nose or
throat trouble; cramps in his legs; frequent indigestion;
stomach, liver, or intestinal trouble; gall bladder trouble
or gallstones; and bed wetting.” Vet. Ct. Op. at *1. He
indicated that he did not suffer from any other ailments.
Appendix (“A”) 14. Importantly, his enlistment medical
examination report found no abnormalities and diagnosed
him with no disabilities. During a July 1977 physical
examination, Mr. Tucker reported “excessive bleeding;
frequent or severe headaches; dizziness or fainting; ear
trouble; recent gain or loss of weight; arthritis, rheuma-
tism, or bursitis; frequent trouble sleeping; depression or
excessive worry; loss of memory or amnesia; nervous
trouble; and periods of unconsciousness.” Vet. Ct. Op. at
*1. None of his service treatment records shows that he
was treated for MS at any time during his five months of
active service, however. A14.
Just prior to his discharge, Mr. Tucker chose not to
undergo a separation physical examination and signed a
“Statement of Medical Condition,” indicating that there
was no change in his medical condition since his last
examination. Id. Shortly thereafter, Mr. Tucker was
discharged from the Army. His discharge paperwork
provides no explanation for his discharge, however. In an
August 2007 VA hearing, Mr. Tucker stated that “they
asked me why [I wanted to be discharged], so I said I
don’t think I can soldier much longer . . . because I’m so
tired.” Vet. Ct. Op. at *1. His MS was first diagnosed in
1999 or 2000. None of his post-service VA or private
treating physicians has related his current MS to active
service. A16.
TUCKER v. SHINSEKI 4
After being diagnosed with MS, Mr. Tucker filed a
claim for service connection. In October 2006, the Re-
gional Office in Waco, Texas (“RO”) issued a rating deci-
sion denying Mr. Tucker’s claim for service connection.
A9. Mr. Tucker appealed this decision to the Board. The
Board determined that the VA had satisfied its duty to
assist Mr. Tucker and that the preponderance of the
evidence was against his claim for service connection for
MS. A9, 11. On appeal before the Veterans Court, Mr.
Tucker argued that the VA failed to satisfy its duty to
assist by: (1) not determining the basis for his discharge,
making it impossible for him to determine “whether there
are additional service personnel, medical, or other service
department record[s] which may be relevant”; and (2)
failing to obtain a VA examination or medical nexus
opinion. Vet. Ct. Op. at *1–2. The Veterans Court noted
that the VA’s duty to assist extends only to relevant
records that are sufficiently identified by the claimant.
Vet. Ct. Op. at *2. Despite this requirement, Mr. Tucker
had not identified any relevant documents that the VA
failed to obtain. Id. Indeed, the Veterans Court found
that Mr. Tucker did not undergo any examination when
he was in service that would contain information relevant
to his claim. Id. (“[H]e does not assert that he actually
underwent such an examination and, in August 2007, he
stated that he did not undergo any examination when
discharged from service.”). Accordingly, the Veterans
Court concluded that Mr. Tucker had failed to demon-
strate that the Board clearly erred in finding that the VA
satisfied its duty to assist.
With respect to Mr. Tucker’s second alleged error, the
Veterans Court held that the Board did not err when it
concluded that a VA medical examination or nexus opin-
ion was not necessary to satisfy the duty to assist. Vet.
Ct. Op. at *3. Reaching this conclusion, the Veterans
5 TUCKER v. SHINSEKI
Court explained that a nexus opinion is not necessary
where “there is no competent medical evidence that a
claimant’s disability is related to his military service.” Id.(citing Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003)).
The Veterans Court noted that, in this case, there was no
“indication that the disability . . . [was] associated with
the veteran’s service or with another service-connected
disability.” 1 Vet. Ct. Op. at *4. For these reasons, the
Veterans Court affirmed the Board’s denial of service
connection for Mr. Tucker’s MS.
DISCUSSION
I.
Our review of Veterans Court decisions is limited by
statute. See Yates v. West, 213 F.3d 1372, 1373–74 (Fed.
Cir. 2000). Our jurisdiction over appeals from the Veter-
ans Court is limited to those appeals that challenge the
validity of a decision of the Veterans Court with respect to
a rule of law or the validity of any statute or regulation,
any interpretations thereof, or that raise any constitu-
tional controversies. See 38 U.S.C. § 7292 (2006). We do
1 The only evidence in the record that suggested
that Tucker had MS while in service was his own state-
ments indicating such, and a statement from a VA neu-
rologist, stating that it was possible that symptoms
Tucker reported while in service could be early symptoms
of MS. The Board and the Veterans Court found this
evidence not to be credible because: (1) it was based on
Tucker’s own statements that were contradicted by his
admission that he had never reported or sought treatment
for MS-related symptoms during service; (2) the first post-
service record of MS was more than 20 years after his
discharge; (3) his statements were affected by his self
interest in receiving VA compensation; and (4) there is no
obligation to accept medical opinions when the opinions
are based exclusively on the statements of the claimant
that have been deemed not credible. Vet. Ct. Op. at *3–4.
TUCKER v. SHINSEKI 6
not have jurisdiction to hear appeals challenging factual
determinations or the application of law to the facts of a
particular case, unless there is a constitutional issue
present. See 38 U.S.C. § 7292(d)(2) (2006).
II.
On appeal, Mr. Tucker makes no arguments in sup-
port of his contention that the Veterans Court’s judgment
should be reversed. In his informal brief, submitted using
Form 13 provided by this court, he merely checked “yes”
next to question 2, indicating that the Veterans Court’s
decision involved the validity or interpretation of a stat-
ute or regulation. He indicated no other basis for this
appeal. In response, the government argues that we lack
jurisdiction to hear this appeal because, in this case, the
Veterans Court merely applied the statute governing the
duty to assist, 38 U.S.C. § 5103A, to the facts of the case;
it did not interpret the statute. We are cognizant that the
veterans benefit compensation system is “uniquely pro-
claimant,” McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir.
2008) (quoting Hensley v. West, 212 F.3d 1255, 1262 (Fed.
Cir. 2000)), and that the VA “is expected to resolve all
issues by giving the claimant the benefit of any reason-
able doubt.” Hodge v. West, 155 F.3d 1356, 1362–63 (Fed.
Cir. 1998) (quoting H. R. Rep. No. 100-963, at 13 (1988),
reprinted in 1988 U.S.C.C.A.N. 5782, 5794–95). After
carefully reviewing the record and the decisions below in
light of Mr. Tucker’s assertion that the Veterans Court
erroneously determined the validity of, or interpreted a
regulation or statute, however, we agree with the gov-
ernment that we lack jurisdiction to hear this appeal.
Here, the Veterans Court merely applied the relevant
statute and case law to the facts at hand. After reviewing
both the Board’s and the Veterans Court’s decisions, we
fail to see any instance of either tribunal interpreting a
7 TUCKER v. SHINSEKI
statute or regulation, or determining the validity thereof.
See Forshey v. Principi, 284 F.3d 1335, 1349 (Fed. Cir.
2002) (superseded on other grounds by Veterans Benefits
Act of 2002, Pub. L. No. 107–330, § 402(a), 116 Stat. 2820,
2832) (“[A]n interpretation of a statute or regulation
occurs when its meaning is elaborated by the court.”).
Absent a constitutional issue, this court may not review
the Veterans Court’s “application of a legal standard to
the facts of the particular case to determine whether
there has been an error that is essentially factual in
nature . . . .” Szemraj v. Principi, 357 F.3d 1370, 1375
(Fed. Cir. 2004) (citing Lennox v. Principi, 353 F.3d 941,
946 (Fed. Cir. 2003) and Cook v. Principi, 353 F.3d 937,
939 (Fed. Cir. 2003)). Mr. Tucker concedes that this case
involves no constitutional issues. In essence, Mr. Tucker
disagrees with the Veterans Court’s determination that it
was not error for the Board to have determined that the
VA satisfied the duty to assist. Both of these determina-
tions are based on the Board’s mere application of control-
ling case law to the relevant facts, however—namely, that
the duty to assist was satisfied because there were no
additional relevant records available that Mr. Tucker
identified and no nexus opinion was necessary because
there was no competent evidence to indicate that his MS
may be service related. These are determinations that we
have no jurisdiction to review. See DeLaRosa v. Peake,
515 F.3d 1319, 1322 (Fed. Cir. 2008) (“The Board made a
factual finding that a medical opinion was not necessary
to decide the claim under § 5103A(d). . . . Our jurisdiction
precludes us from reviewing factual findings or even the
application of law to facts.”). Accordingly, we dismiss for
want of jurisdiction.
DISMISSED
TUCKER v. SHINSEKI 8
COSTS
Each party shall bear its own costs.