Frank Henderson v. Shinseki ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANK L. HENDERSON,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7028
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4169, Judge William A. Moor-
man.
______________________
Decided: May 16, 2013
______________________
ROBERT P. WALSH, Law Office of Robert P. Walsh, of
Battle Creek, Michigan, argued for claimant-appellant.
ERIC P. BRUSKIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. On the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
2 FRANK HENDERSON v. SHINSEKI
tor, TODD M. HUGHES, Deputy Director, and STACEY K.
GRIGSBY, Trial Attorney. Of counsel on the brief were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
and MARTIE S. ADELMAN, Attorney, United States De-
partment of Veterans Affairs, of Washington, DC. Of
counsel was BRIAN D. GRIFFIN, General Attorney.
______________________
Before NEWMAN, LOURIE, and WALLACH, Circuit Judges.
WALLACH Circuit Judge.
Frank L. Henderson appeals from the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the Board of Veterans’
Appeals’ (“Board”) denial of, inter alia, service connection
for orthopedic, neurologic, and vascular disorders of the
right hand, secondary to a service-connected burn injury
to the right hand. Henderson v. Shinseki, No. 09-4169,
2011 U.S. App. Vet. Claims LEXIS 2048, at *4 (Vet. App.
Sept. 29, 2011) (“Veterans Court 2011 Decision”). Be-
cause the issues raised on appeal by Mr. Henderson
require the application of law to fact, we dismiss for lack
of jurisdiction.
BACKGROUND
Mr. Henderson served on active duty to the United
States Army from January 1948 to January 1952. On
March 10, 1951, during service in Korea, he suffered first-
, second-, and third-degree burns to the dorsum of his
right hand in a fire. He was hospitalized for treatment of
the burns until April 10, 1951, at which time his hand
was “completely healed over.” Henderson v. Principi, No.
02-907, 2004 U.S. App. Vet. Claims LEXIS 60, at *3 (Vet.
App. Feb. 2, 2004) (“Veterans Court 2004 Decision”).
However, Mr. Henderson was considered “unfit for return
to full duty.” Id. He was honorably discharged at the end
of his enlistment period in January 1952. His “discharge
examination indicated that he had sustained a ‘third[-
FRANK HENDERSON v. SHINSEKI 3
]degree’ burn to the right hand and had ‘depigmentation
and diffuse dorsum of the right hand’, but had ‘no definite
difficulty’ with that hand.” Id. (modification in original).
Following his discharge, Mr. Henderson filed for, inter
alia, disability compensation with the Department of
Veterans Affairs (“VA”) for residuals of the third-degree
burns to his right hand. A VA medical examination
conducted in March 1960 reported no limitation of motion
or loss of strength. In April 1960, the VA Regional Office
(“RO”) granted service connection for the burns but de-
termined that the residual disability did not warrant a
compensable evaluation. Mr. Henderson filed multiple
claims for increased disability ratings, each of which was
denied by the Board in 1961, 1970, and 1974.
In February 2002, Mr. Henderson raised a claim for
clear and unmistakable error (“CUE”) in the previous
Board decisions. The Board determined that the 1961,
1970, and 1974 decisions did not contain CUE by charac-
terizing Mr. Henderson’s injury as second-degree rather
than third-degree burns. The Veterans Court affirmed.
Mr. Henderson appealed that decision to this court; it was
dismissed for lack of jurisdiction. Henderson v. Principi,
117 F. App’x 766 (Fed. Cir. 2005).
In an October 2009 decision the Board considered Mr.
Henderson’s appeals of numerous other rating decisions,
and ultimately denied, inter alia, his claims for service
connection for orthopedic, neurologic, and vascular disor-
ders of the right hand as secondary to a service-connected
burn injury of the right hand. The Veterans Court af-
firmed the Board’s decision.
The Veterans Court rejected Mr. Henderson’s argu-
ment that the Board failed to consider reports from two
doctors, Drs. Gomez and Rhind, and to properly weigh the
private examinations in light of the reports of a third
doctor, Dr. Young. The Veterans Court held that the
Board adequately explained its reasons for finding Drs.
4 FRANK HENDERSON v. SHINSEKI
Gomez, Rhind, and Young’s opinions less probative than
other evidence. The Veterans Court also concluded that
Mr. Henderson “fail[ed] to provide any convincing sup-
port” for his argument that a 2007 VA medical examina-
tion was “incomplete, negligent, and speculative.”
Veterans Court 2011 Decision at *10 (internal quotation
marks and citations omitted). The Veterans Court noted
that the examiner reviewed the claims folder and dis-
cussed Mr. Henderson’s medical history and recent medi-
cal tests. The Veterans Court found no clear error in the
Board’s finding that the preponderance of the evidence
was against the claim and thus concluded Mr. Hender-
son’s benefit-of-the-doubt argument lacked merit. Final-
ly, in response to Mr. Henderson’s argument contesting
the adequacy of the Board’s statement of reasons or bases,
the Veterans Court held that the Board’s decision was
supported by an adequate statement. Mr. Henderson
filed a timely appeal to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Pursuant to 38 U.S.C. §
7292(a), this court has jurisdiction to review “the validity
of a decision of the [Veterans] 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 by the [Veterans] Court in making the
decision.” Except to the extent that a constitutional issue
is presented, this court may not review “a challenge to a
factual determination,” or “a challenge to a law or regula-
tion as applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2). The Veterans Court’s legal determinations
are reviewed de novo. Cushman v. Shinseki, 576 F.3d
1290, 1296 (Fed. Cir. 2009).
None of Mr. Henderson’s contentions present an ar-
gument of legal error by the Veterans Court over which
this court would have jurisdiction. To the extent that Mr.
FRANK HENDERSON v. SHINSEKI 5
Henderson’s appeal challenges the Veterans Court’s
holding that the Board decision was supported by an
adequate statement of reasons or bases, he contests the
Veterans Court’s application of law to the facts of this
case over which this court lacks jurisdiction. 38 U.S.C. §
7292(d)(2). Mr. Henderson also challenges the Board’s
analysis of the evidence, and in particular, its determina-
tions about the credibility of Dr. Gomez’s report and the
adequacy of the 2007 VA examination. Similarly, Mr.
Henderson asserts error regarding the degree of his burn
injury. 1 Specifically, Mr. Henderson argues that the VA
examiners and adjudicators improperly altered the nature
of his claim (from one for compensation for residuals of
third-degree burns to one for residuals of second-degree
burns), and delayed adjudication of the claim for fifty
years, thereby denying him due process. However, inac-
curately characterizing a question as constitutional does
not convert a challenge to a factual determination into a
“separate constitutional contention” over which this court
would have jurisdiction. Helfer v. West, 174 F.3d 1332,
1335 (Fed. Cir. 1999).
Mr. Henderson’s remaining arguments are without
merit. Because this court lacks jurisdiction to review “a
challenge to a factual determination” or “a challenge to a
law or regulation as applied to the facts of a particular
case,” 38 U.S.C. § 7292(d)(2), Mr. Henderson’s appeal is
dismissed for lack of jurisdiction.
DISMISSED
1 The Veterans Court observed that the Board care-
fully considered the merits of Mr. Henderson’s claim with
respect to disorders secondary to the service-connected
burn injury of the right hand, generally, rather than to a
third- or second-degree burn in particular, and found no
error in the Board’s characterization of the claim.