Niekro v. Shinseki , 393 F. App'x 715 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
HENRY NIEKRO,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7064
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-0440, Judge Robert N.
Davis.
__________________________
Decided: September 10, 2010
__________________________
HENRY NIEKRO, of Ludington,Michigan, 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-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director. Of counsel on the
NIEKRO v. DVA 2
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, and DANA RAFFAELLI, Attorney, Office of the
General Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before RADER, Chief Judge, FRIEDMAN, and LINN, Circuit
Judges.
PER CURIAM.
This pro se appeal challenges the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”), affirming the decision of the Board of
Veterans Appeals (“Board”), denying Henry Niekro ser-
vice connection and disability benefits for arthritis suf-
fered while on active military service. We dismiss the
appeal because it involves factual issues which we have
no jurisdiction to review.
I
Following his active Army service from 1962 to 1965,
in 1991 Niekro filed a claim seeking service connection
and disability compensation for generalized arthritis,
which he attributed to cold exposure or gonorrhea in-
curred while on active duty. After a series of decisions by
the Department of Veterans Affairs Regional Office and
the Board, the latter rejected his claims in 2008. It found
that “[t]he veteran’s generalized arthritis is not attribut-
able to any injury or disease in service” and concluded
that “[g]eneralized arthritis was not incurred or aggra-
vated in active service.” The Board ruled that a letter
from Niekro’s private physician, which stated that
Niekro’s arthritis “may have had its onset” during the
veteran’s military service, was speculative, because it was
not based on Niekro’s claim file and did not indicate
3 NIEKRO v. DVA
whether the physician had reviewed Niekro’s medical
records.
The Veterans Court affirmed. The court stated that
“[t]he Board provided an adequate statement of reasons
and bases that explained the weight it assigned to the
private physician’s medical opinion. Thus, the Court
concludes that the Board did not err finding the VA
examiner’s report warranted greater weight.”
II
In appeals from the Veterans Court not presenting a
constitutional question, this court “may not review (A) a
challenge to a factual determination, or (B) a challenge to
a law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2). In other words, this court
generally has no jurisdiction to review challenges to the
Board’s factual determinations. See, e.g., Johnson v.
Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1992). “Whether
the Veterans Court was correct in affirming the Board’s
credibility determination is [also] a question of fact be-
yond this court’s jurisdiction.” Gardin v. Shinseki, --- F.3d
----, 2010 WL 2898320, at *6 (Fed. Cir. 2010). Further-
more, “[t]he weighing of . . . evidence is not within our
appellate jurisdiction.” Maxson v. Gober, 230 F.3d 1330,
1332 (Fed. Cir. 2000).
Niekro’s appeal, which presents no constitutional is-
sues, basically challenges the Board’s weighing of the
evidence. As indicated above, however, this court gener-
ally cannot reweigh the evidence in appeals from the
Veterans Court. We therefore have no jurisdiction to
consider the issues Niekro raises, and must dismiss his
appeal.
Niekro summarily states various legal challenges to
the Veterans Court’s decision, but makes no attempt to
NIEKRO v. DVA 4
develop or explain them. Such challenges are inadequate
to give this court the jurisdiction it otherwise would not
have. See, e.g., Flores v. Nicholson, 476 F.3d 1379, 1382
(Fed. Cir. 2007) (“[T]he appellant’s characterization of [a]
question . . . does not confer upon us jurisdiction that we
otherwise lack.”) (internal quotation marks omitted).
CONCLUSION
The appeal is
DISMISSED.
No costs.