O'Daniels v. Dept. Of Veterans Affairs ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GERALD O’DANIELS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7110
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-4108, Judge Alan G.
Lance, Sr.
____________________________
Decided: October 12, 2011
____________________________
GERALD O’DANIELS, of Winter Haven, Florida, pro se.
CHRISTOPHER L. KRAFCHEK, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent-appellee. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and STEVEN J. GILLINGHAM, Assistant Director. Of
O'DANIELS v. DVA 2
counsel on the brief was DAVID J. BARRANS, Deputy Assis-
tant General Counsel, United States Department of
Veterans Affairs, of Washington, DC.
__________________________
Before LOURIE, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
Gerald O’Daniels appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) affirming the denial by the Board of
Veterans’ Appeals (“the Board”) of his claim for entitle-
ment to benefits based on a lumbar spine disability and a
disability characterized by a loss of concentration from an
overdose of prescription medication while he was in
service. O’Daniels v. Shinseki, No. 09-4108, 2011 WL
463217 (Vet. App. Feb. 9, 2011) (“Veterans Court Op.”).
Because we conclude that O’Daniels’ challenges are
outside the scope of our jurisdiction, we dismiss.
O’Daniels served on active duty from August 3, 1976
to August 20, 1976. On August 11, 1976, after a second
episode of fainting spells followed by an inability to move
his extremities over a two- or three-day period, O’Daniels
received a psychiatric evaluation. The evaluation noted
that O’Daniels recovered movement of his extremities
once he was removed from the “stressful situation” of
military training and recommended administrative sepa-
ration. Based on this evaluation, O’Daniels was honora-
bly discharged from service.
In November 2004, O’Daniels filed a claim for com-
pensation for a back condition and a disability character-
ized by a loss of concentration due to an overdose of
medication. This claim was denied in March 2005 by a
VA Regional Office and again in February 2006 on de
novo review by a VA Decision Review Officer. O’Daniels
3 O'DANIELS v. DVA
then testified before the Regional Office on May 30, 2006.
After considering O’Daniels’ testimony and additional
evidence, the VA Regional Office again denied his claim in
February 2007. After hearing additional testimony from
O’Daniels in February 2009, the Board agreed, denying
his claim.
During his May 2006 testimony, O’Daniels claimed
that the back condition occurred as a result of falling over
a bench while in service. Later, during his February 2009
testimony, he testified that he fell off a ladder. He also
testified that his problems with loss of concentration were
a result of taking Darvon™, a pain killer, prescribed on
base for the treatment of this back injury. He further
stated that he was administratively discharged because of
this back disorder.
Both the Board and the Regional Office concluded
that O’Daniels’ testimony regarding his back injury and
the loss of concentration claims was not credible due to
inconsistencies in his medical history. They noted that
there was no evidence from O’Daniels’ service medical
record of any back injuries, prescriptions for pain medica-
tions, or overdose. Instead, his post-service medical
records attribute his back problems to a childhood auto-
mobile accident. The Board also noted that O’Daniels was
awarded Supplemental Security Income from the Social
Security Administration in 1998 for an injury to his back
while working in the construction industry in May 1977.
The Board made factual determinations that the lumbar
spine disability and the disability characterized by loss of
concentration were not exhibited in service and not oth-
erwise related to active service. The Board also held that
the VA had satisfied its duty to assist O’Daniels in devel-
oping his claim and that a medical examination was not
necessary under the facts of this case because there was
O'DANIELS v. DVA 4
no reasonable possibility it would aid in substantiating
his claim.
O’Daniels appealed to the Veterans Court, arguing
that the Board erred by: (1) finding his testimony was not
credible because it was inconsistent with his medical
records; (2) finding that no medical examination was
needed; and (3) failing to discuss all theories of entitle-
ment raised by his testimony. See Veterans Court Op., at
*2. The Veterans Court affirmed the Board’s findings
that O’Daniels’ testimony was inconsistent and not credi-
ble. Because no other evidence supported his claims, the
Veterans Court also affirmed that the Board did not err in
finding that a medical examination was unnecessary or in
failing to explicitly discuss all theories raised by his
testimony. Id. O’Daniels then timely appealed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any inter-
pretation thereof [by the Veterans Court] . . . , and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” Id.
§ 7292(c). We may not, however, absent a constitutional
challenge, “review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2). In other
words, we generally lack jurisdiction to review challenges
to the Board's factual determinations. See, e.g., Johnson v.
Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991).
On appeal, O’Daniels argues that the Veterans Court
made no attempt to discern whether he was telling the
truth. He also asserts that there was a cover-up and that
he was told that all the evidence regarding his case had
5 O'DANIELS v. DVA
been destroyed. O’Daniels contends that the Veterans
Court erred by failing to adequately discuss each theory of
entitlement raised by his testimony in that he faults the
Veterans Court for not addressing his overdose of Dar-
von™. In addition, O’Daniels also claims he was entitled
to a medical examination and lie detector test to deter-
mine the truth of his claims and testimony. O’Daniels
concedes that the Veterans Court’s decision did not in-
volve the validity or interpretation of a statute or regula-
tion and did not decide a constitutional issue.
The government responds that we lack jurisdiction to
review the Veterans Court’s decision in this case because
O’Daniels simply reargues factual issues and challenges
the adequacy of the Veterans Court’s reasons or bases for
its decision. The government also contends that
O’Daniels did not identify any error in the Veterans Court
decision.
We agree with the government that we lack jurisdic-
tion. The Board and the Veterans Court weighed and
considered O’Daniels’ testimony and his credibility in
light of his prior medical history as required by the stat-
ute. O’Daniels testified in 2006 that while in service he
was prescribed and overdosed on Darvon™ for pain due to
a back injury that occurred as a result of falling over a
bench and later claimed that it occurred as a result of
falling off a ladder. Both the Board and the Regional
Office noted that there was no evidence from O’Daniels’
service medical record of any back injuries, prescriptions
for pain medications, or overdose. Instead, his testimony
was contradicted by his post-service medical records and
statements to the Social Security Administration that
attribute his back problems to a childhood automobile
accident and injury while working in construction in May
1977. As credibility is a factual finding, the Veterans
Court’s affirmance of the Board’s determination regarding
O'DANIELS v. DVA 6
O’Daniels’ credibility is not subject to review by this
Court, and thus we lack jurisdiction over O’Daniels’
claims regarding credibility and his request for a lie
detector test. Gardin v. Shinseki, 613 F.3d 1374, 1380
(Fed. Cir. 2010) (“Whether the Veteran’s Court was
correct in affirming the board’s credibility determination
is a question of fact beyond this court’s jurisdiction.”); see
Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000)
(“The weighing of . . . evidence is not within our appellate
jurisdiction.”).
As for O’Daniels’ request for a medical examination,
O’Daniels in essence argues that the government did not
adequately assist him in developing his claims because it
had not provided him with a medical examination under
38 U.S.C. § 5103A. In prior cases, we have rejected the
assertion that veterans are automatically entitled to a
medical examination by simply asserting a claim. Waters
v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010).
Instead, section 5103A states that the VA's duty to pro-
vide a medical opinion applies only when such an exami-
nation is “necessary to a decision on the claim,” but that
there is no duty to do so if “no reasonable possibility exists
that such assistance would aid in substantiating the
claim.” 38 U.S.C. § 5103A(a)(2), (d)(1). The Board made
factual determinations that the lumbar spine disability
and the disability characterized by loss of concentration
were not exhibited in service and not otherwise related to
active service. The Veterans Court affirmed this factual
finding. Veterans Court Op., at *1. Under section 5103A,
the Veterans Court affirmed the Board’s finding that
there was no reasonable possibility that a medical exami-
nation would aid in substantiating the claim. Veterans
Court Op., at *2 (“[T]here was no factual basis to require
further development of his claim or further discussion by
the Board.”) The statutory limitations on our jurisdiction
7 O'DANIELS v. DVA
preclude us from reviewing such an application of law to
fact as well as the related factual findings.
O’Daniels contends that the Veterans Court also erred
by failing to adequately discuss each theory of entitlement
raised by his testimony, namely, that the Veterans Court
failed to address his overdose on Darvon™. However, the
Veterans Court did address his disability claim relating to
the prescription medication, finding no evidence in the
record of an overdose on pain medication. Veterans Court
Op., at *1. We likewise cannot review that factual find-
ing.
We have considered O’Daniels’ remaining arguments
and do not find them persuasive. The Board’s findings of
fact, affirmed by the Veterans Court, are not subject to
our review. O’Daniels’ challenges on appeal therefore do
not fall within the scope of 38 U.S.C. § 7292. Accordingly,
we dismiss O’Daniels’ appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.