Johnson v. Shinseki ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DOUGLAS H. JOHNSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7123
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-0673, Judge William A.
Moorman.
_________________________
Decided: October 7, 2011
_________________________
DOUGLAS JOHNSON, of Medon, Tennessee, pro se.
DANIEL B. VOLK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and STEVEN
J. GILLINGHAM, Assistant Director. Of counsel on the
JOHNSON v. DVA 2
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, and TRACEY P. WARREN, Staff Attorney, United
States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before NEWMAN, MAYER, and O’MALLEY, Circuit Judges.
PER CURIAM.
Douglas H. Johnson, pro se, appeals the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a Board of Veteran’s Appeals
(“Board”) decision that denied Mr. Johnson’s claim for
service-connected benefits for a back condition. Because
Mr. Johnson challenges only the Board’s factual finding
that his back condition was not connected to his military
service, he does not raise an issue within our jurisdiction.
Accordingly, we dismiss this appeal for lack of jurisdic-
tion.
BACKGROUND
Mr. Johnson served in the United States Army from
1978 to 1985. Following separation from service, Mr.
Johnson submitted an application for compensation for
low back pain, a condition for which he received treat-
ment during his military service. Mr. Johnson attributed
his back pain to moving desks during his service. In
connection with his claim, he underwent a VA examina-
tion in which the examiner found that Mr. Johnson’s back
was normal, a finding that was confirmed by x-rays. In
an April 1986 decision, the VA regional office (“RO”)
denied Mr. Johnson’s claim for lack of a currently diag-
nosed disability, a decision that Mr. Johnson did not
appeal. A subsequent VA examination in March 1992
also did not result in a diagnosis of a back condition.
3 JOHNSON v. DVA
Mr. Johnson’s first diagnosis for a back condition oc-
curred during a May 2001 VA examination in which the
examiner diagnosed Mr. Johnson with a low back strain.
At his examination, Mr. Johnson reported that his back
pain was due to sit-ups during his military service, but he
also said that his work as a floor cleaner caused pain in
his back. A June 2002 MRI at a VA medical center led to
a diagnosis of degenerative disc disease (“DDD”) with a
small herniation on the left side.
In October 2004, Mr. Johnson requested that the VA
reopen his claim based on new and material evidence. In
a February 2005 decision, the RO found that new and
material evidence warranted reopening the claim, but
denied the claim on the merits. Mr. Johnson filed a
timely notice of disagreement.
Among the new evidence Mr. Johnson submitted on
appeal to the Board was a July 2006 letter from a private
physician stating that Mr. Johnson’s DDD and disc herni-
ation were the result of an injury Mr. Johnson experi-
enced while on active military duty. The Board concluded
that Mr. Johnson presented new and material evidence
sufficient to reopen his claim, and then proceeded to
address the merits of his claim.
As to the merits, the Board found that Mr. Johnson
established that he had a current disability based on his
diagnosis of DDD, as well as a June 2008 VA examination
diagnosing him with spondylosis of the lumbosacral spine.
The Board also found that Mr. Johnson’s separation
examination, in which the examiner noted mild left
paravertebral tenderness to palpation, showed that Mr.
Johnson “experienced an injury or event during his mili-
tary service to which his current disability might be
related.” Appendix (“A”) 17.
The Board concluded, however, that there was insuffi-
JOHNSON v. DVA 4
cient evidence to demonstrate a nexus between Mr. John-
son’s disability and his military service. In reaching its
decision, the Board focused on: (1) the fact that Mr. John-
son is not qualified to opine on the etiology of his disabil-
ity; (2) a finding that Mr. Johnson’s recollections are
unreliable given that he attributed his pain at various
times to several different incidents in service, none of
which were documented in service treatment records; (3)
several long gaps in Mr. Johnson’s medical records during
which he did not seek treatment for back pain, viewing
those gaps as negative evidence tending to disprove that
his injury had its onset during service; and (4) a July 2008
VA examination report in which the examiner opined that
it was “less likely than not” that Mr. Johnson’s in-service
back strain caused his current back problems. A 21. The
Board found that the 2008 VA examination report was
more probative and more persuasive than the July 2006
letter from Mr. Johnson’s private physician, in large part
because the July 2006 physician letter was “conclusory,
with no evidence to support his opinion.” A 21.
On appeal to the Veterans Court, Mr. Johnson argued
that the Board erred by: (1) relying on the July 2008 VA
examination because the examiner did not provide a
rationale for his opinion; and (2) failing to provide ade-
quate reasons or bases for assigning greater weight to the
2008 VA examination than the 2006 private physician
opinion. 1 The Veterans Court rejected these arguments,
1 Mr. Johnson, who was represented by counsel be-
fore the Veterans Court, did not challenge the Board’s
decision to address the merits of his claim in the same
decision in which it reopened it, as opposed to remanding
the claim to the RO to consider any new evidence in the
first instance. The Veterans Court found that any proce-
dural argument on those grounds had been waived. Mr.
Johnson likewise does not challenge the procedure the
Board used in this appeal, and we do not address it.
5 JOHNSON v. DVA
noting first that they relate to factual findings and weigh-
ing of evidence, which are within the Board’s province.
The Veterans Court concluded that the Board’s factual
findings as to the adequacy of the 2008 examination
report were not clearly erroneous, and that the Board
provided a sufficient statement of reasons or bases for
giving greater weight to the 2008 examination report than
the 2006 private physician letter. Accordingly, the Veter-
ans Court affirmed the Board’s decision. Mr. Johnson
filed a timely notice of appeal.
DISCUSSION
Our review of Veterans Court decisions is limited by
statute. Under 38 U.S.C. § 7292(a), we may review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
decision.” Unless the appeal presents a constitutional
issue, we “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). We review legal determinations by the Veter-
ans Court under a de novo standard. See Arzio v. Shin-
seki, 602 F.3d 1343, 1345 (Fed. Cir. 2010).
On appeal, Mr. Johnson reiterates his position that
his current back condition resulted from an injury he
suffered during military service. He states that his injury
first occurred when he was performing physical training
in the military, and that it progressed into a chronic
condition. He contends that early tests did not reveal his
condition because only a more advanced MRI test could
detect his injury. Finally, he states that “[t]he Physicians
in the Family Practice Clinic may not have had a trained
eye for this type of injury. Perhaps if I would have seen
JOHNSON v. DVA 6
an Orthopedic Specialist there would have been a differ-
ent outcome upon examination of my back.” Appellant’s
June 4, 2011 Letter, Attached to Informal Brief. In
response, the government argues that Mr. Johnson’s
appeal raises only factual issues outside of this court’s
jurisdiction, and argues that we must dismiss this appeal.
We agree with the government.
As stated above, this court cannot review challenges
to factual determinations or applications of law to fact.
See 38 U.S.C. § 7292(d)(2). Mr. Johnson effectively asks
this court to reconsider the evidence and his medical
history to conclude that there is a nexus between his back
condition and his military service. That is a quintessen-
tial factual determination that we are without jurisdiction
to make. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000) (finding that the weighing of a veteran’s “entire
medical history, including the lengthy period of absence of
complaint directed to the condition he now raises . . . is
not within our appellate jurisdiction”). To the extent Mr.
Johnson continues to challenge the Board’s decision to
give more weight to the 2008 VA medical examination
than the 2006 private physician opinion, that is also a
challenge that we lack jurisdiction to consider. See
Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010)
(“The evaluation and weighing of evidence and the draw-
ing of appropriate inferences from it are factual determi-
nations committed to the discretion of the fact-finder. We
lack jurisdiction to review these determinations.”).
Finally, it is unclear to what Mr. Johnson is referring
when he states that his condition would have been de-
tected earlier if an orthopedic specialist had examined
him instead of the “Family Practice Clinic.” If he is
arguing that the VA did not comply with its duty to assist
under 38 U.S.C. § 5013A because it did not provide a
competent physician for an examination, we find no merit
7 JOHNSON v. DVA
to that argument. Even putting aside that Mr. Johnson
did not make this argument to the Veterans Court, VA
examiners are presumed to be competent absent evidence
to the contrary, and Mr. Johnson does not raise any
challenge to the competence of the examiner in this case.
See Rizzo v. Shinseki, 580 F.3d 1288, 1290–91 (Fed. Cir.
2009) (“[T]he VA need not affirmatively establish [an]
expert’s competency” absent a challenge to the expert’s
competence or qualifications); Cox v. Nicholson, 20 Vet.
App. 563, 569 (2007) (“[T]he Board is entitled to assume
the competence of a VA examiner.” (citation omitted)).
Accepting Mr. Johnson’s argument would not change the
outcome of this case, however, because the issue is not the
timing or existence of a diagnosis of a back condition, but
whether there is a nexus between Mr. Johnson’s back
condition and his military service.
Accordingly, we find that Mr. Johnson does not raise
any arguments that are within our jurisdiction to review,
and we must dismiss this appeal.
CONCLUSION
For the reasons stated above, this appeal is dismissed.
DISMISSED
COSTS
Each party shall bear its own costs.