Jones v. Dept. Of Veterans Affairs ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
HARVELLA JONES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7083
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-0106, Judge Alan G.
Lance, Sr.
___________________________
Decided: September 20, 2011
___________________________
HARVELLA JONES, of Richmond, Texas, pro se.
JACOB A. SCHUNK, 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 TODD M.
HUGHES, Deputy Director.
JONES v. DVA 2
__________________________
Before NEWMAN, O'MALLEY, and REYNA, Circuit Judges.
NEWMAN, Circuit Judge.
Mrs. Harvella Jones appeals from the decision of the
United States Court of Appeals for Veterans Claims (the
Veterans Court) affirming the decision of the Board of
Veterans Appeals (the Board) denying her claim for
various entitlements, on the Board’s finding that the
cause of her husband’s death was not service-connected. 1
On review of Mrs. Jones’ briefs, the government’s re-
sponse, and the record provided, we discern no error of
law. Because this court lacks jurisdiction to review the
questions of fact presented by Mrs. Jones, and because
she has not shown a constitutional violation, the Veterans
Court’s decision is affirmed.
BACKGROUND
The deceased veteran, Johnnie Jones, served on active
duty in the United States Army from May 1943 to No-
vember 1948, again from May 1950 to October 1951, and
then from August 1954 to January 1964. The veteran was
assessed with a service-connected back disability, rated as
60% disabling.
In November 1990 the veteran filed a claim with a re-
gional office (RO) for secondary service connection for
renal disease, pursuant to 38 C.F.R. §3.310, stating that
his renal condition was caused by the medications he took
for his service-connected back disability. In April 1996
the Board denied this claim. The veteran did not appeal,
but filed a request to reopen in June 1996, which was on
1 Jones v. Shinseki, No. 09-0106 (Vet. Cl. Nov. 8,
2010).
3 JONES v. DVA
appeal to the Veterans Court at the time of the veteran’s
death in October 2004.
In March 1994, the veteran had filed a claim pursuant
to 38 U.S.C. §1551, which provides for benefits when
medical treatment obtained at a VA facility causes a
veteran’s disability. The Board also denied this claim,
and the appeal of that Board decision was pending before
the Veterans Court at the time of the veteran’s death.
The Veterans Court dismissed both appeals without
ruling on the merits.
The death certificate stated that the cause of death
was probable sepsis with profound hypertension due to
cardiac dysrhythmia. In November 2004 Mrs. Jones filed
a claim for Dependency and Indemnity Compensation
benefits, and for accrued benefits. On December 18, 2008,
the Board denied service connection for the cause of
death, concluding that the veteran’s death was caused
neither by a service-connected disability, nor by medical
treatment received at a VA facility. The Board also
denied Mrs. Jones’ claim for benefits pursuant to 38
U.S.C. §1318, because the veteran had not been receiving
disability benefits for a totally disabling disability for the
10 years preceding his death. On November 8, 2010, the
Veterans Court affirmed the Board, stating that the
Board gave an adequately articulated rationale for its
finding that the veteran’s renal disease was related to his
hypertension rather than the medications for his service-
connected back disability. Mrs. Jones appeals.
DISCUSSION
On appeal from the Veterans Court, absent a consti-
tutional issue, we may not review challenges to factual
determinations or challenges to the application of a law or
regulation to facts. 38 U.S.C. §7292(d)(2).
JONES v. DVA 4
Mrs. Jones presents four arguments to this court: (1)
that the Veterans Court ignored certain evidence; (2) that
the veteran’s claim under 38 U.S.C. §1151 was placed in
suspense awaiting the decision in Brown v. Gardner, 513
U.S. 115 (1994), and that this delay prejudiced him; (3)
that the VA tribunals misunderstood part of the veteran’s
claim; and (4) that the VA tribunals engaged in “racial
profiling,” in finding that the veteran’s hypertension was
not service-connected.
A
First, Mrs. Jones argues that the VA ignored certain
evidence, including an affidavit by the veteran stating
that he was orally granted a 100% rating for end stage
renal disease by VA ratings officer Bob Manchester.
Another affidavit by the veteran stated his belief that the
VA medical treatment for his service-connected back
injury caused his end stage renal disease. Mrs. Jones
states that the Veterans Court made no mention of these
affidavits in its decision, and that this is prejudicial error.
Evaluation of evidence is a matter of fact, not law.
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The
[Board] has the duty to assess the credibility and weight
to be given to the evidence.”). The Board found that that
“the evidence of record preponderates against appellant’s
claims to service connection for cause of death.” The
Board stated:
The Board has closely reviewed and considered
the appellant’s statements, and the statements of
the veteran prior to his death. While their state-
ments may be viewed as evidence, the Board must
also note that laypersons without medical exper-
tise or training are not competent to offer medical
evidence on matters involving diagnosis and etiol-
ogy. Therefore, the statements of the veteran
5 JONES v. DVA
alone are insufficient to prove the appellant’s
claims. Ultimately, a lay statement, however sin-
cerely communicated, cannot form a factual basis
for granting a claim requiring medical determina-
tions. See Espiritu v. Derwinski, 2 Vet. App. 392,
494-5 (1992).
In affirming the Board, the Veterans Court stated:
Here, the Board weighed the five medical opin-
ions, consisting of one favorable opinion, the pri-
vate August 1991 opinion, and four opinions that
found the veteran’s ESRD was related to his hy-
pertension and not the medications he took for his
back disability. The Board found the four opin-
ions finding that the veteran’s ESRD was related
to his hypertension to be more persuasive and of
more probative value than the August 1991 opin-
ion because they are based on a review of the re-
cords, including the service medical records, and
are supported by a detailed rationale. Such a de-
termination is well within the Board’s purview as
finder of fact.
We lack jurisdiction to reweigh the evidence concerning
the veteran’s disabilities and their asserted service con-
nection. See 38 U.S.C. §7292(d)(2); White v. Principi, 243
F.3d 1378, 1381 (Fed. Cir. 2001) (“Congress left it to the
VA, and not this court, to determine how best to weigh
evidence in veterans’ benefits cases.”). The Board found
that “the medical nexus evidence of record preponderates
against the veteran’s assertion that ingestion of pain
medication for his lower back disorder . . . related to his
renal disease.” The record shows no lapse in due process
in the procedures of these tribunals, and, as noted, factual
questions are not subject to our review.
JONES v. DVA 6
B
Mrs. Jones argues that the veteran’s claim was preju-
diced by delay while the Veterans Court awaited the
decision of the Supreme Court in Brown v. Gardner, 513
U.S. 115 (1994). In Brown the Court held that, under 38
U.S.C. §1151, a veteran need not show that treatment
obtained at a VA medical facility was negligent in order to
obtain benefits related to a disability caused by that
treatment. 513 U.S. at 117. Mrs. Jones argues that this
was a tactical delay by the VA, which proved to be detri-
mental to the veteran in that “his claim outlived him.”
Mrs. Jones further argues that the veteran “never got the
benefit of the doubt,” as required by 38 U.S.C. §5107.
The court is sympathetic to the appellant’s complaint
about the long road a veteran must often travel, and the
consequences of delay along that path. We discern no
unusual delay beyond the norm in that busy court. And
no basis has been shown for concluding that the veteran
was not afforded the benefit of the doubt as required by
38 U.S.C. §5107.
C
Mrs. Jones next argues that the VA reworded the vet-
eran’s original claim regarding end-stage renal disease,
whereby the VA stated the issue as whether the disease
was connected to the veteran’s use of APC medication
while on active duty, when in fact the medication was
continued after active duty. The Board found that “the
medical evidence of record preponderates against the
argument that the pharmacological treatment for the
back disorder – either in service or post service – related
to the renal disorder.” Again, Mrs. Jones’ arguments
challenge the resolution of factual questions, which are
beyond the jurisdiction of this court.
7 JONES v. DVA
D
Mrs. Jones also contends that the VA engaged in “ra-
cial profiling” in concluding that the veteran’s hyperten-
sion was not service-connected. She argues that the
Board’s decision was “due to the belief that kidney disease
for an Afro-American is due to hypertension and not the
possibility that hypertension is also a ‘symptom’ of kidney
disease.” To the extent this argument raises constitu-
tional discrimination issues, we do not find sufficient
evidence of such in the record. While the medical records
contain passing reference to the normal progress of renal
failure in African Americans, they also contain a detailed
analysis of the veteran’s individual circumstances. Spe-
cifically, the records state that: (1) “[w]e believe that
hypertension was not secondary to a primary renal dis-
ease because of ample evidence of long standing hyper-
tensive effects on the aorta and the heart at a time when
neither renal or urine abnormalities were present;” and
(2) “[a]n additional element that supports that pri-
mary/essential hypertension was the cause of end stage
renal disease, but not analgesic nephropathy, is the
absence of ‘bladder symptoms’ and abnormal urinalysis
prior to the development to end stage renal failure.” See
Appendix 36. These references support our conclusion
that the Board’s decision was not based on any constitu-
tionally impermissible factors.
CONCLUSION
We have considered Mrs. Jones’ remaining arguments
and find them unpersuasive. Accordingly, to the limited
extent we have jurisdiction over this appeal, we discern
no reversible error in the decision of the Veterans Court.
As such, the decision of the Veterans Court is affirmed.
No costs.
JONES v. DVA 8
AFFIRMED