Case: 19-2207 Document: 31 Page: 1 Filed: 04/22/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CECIL L. CARPENTER,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2207
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-2404, Judge Amanda L. Mere-
dith.
______________________
Decided: April 22, 2020
______________________
PAUL MICHAEL SCHOENHARD, McDermott, Will & Em-
ery LLP, Washington, DC, for claimant-appellant. Also
represented by IAN BARNETT BROOKS.
DAVID PEHLKE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.; MARTIE ADELMAN, Y. KEN LEE,
Case: 19-2207 Document: 31 Page: 2 Filed: 04/22/2020
2 CARPENTER v. WILKIE
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before LOURIE, WALLACH, and HUGHES, Circuit Judges.
LOURIE, Circuit Judge.
Cecil Carpenter appeals from a decision of the Court of
Appeals for Veterans Claims (“the Veterans Court”) deny-
ing service connection. See Carpenter v. Wilkie, No. 18-
2404,
2019 WL 2305860 (Vet. App. May 31, 2019) (“Deci-
sion”). Because Carpenter raises only factual issues over
which we lack jurisdiction, we dismiss the appeal.
BACKGROUND
Carpenter served on active duty in the U.S. Army from
1984 to 1987. Carpenter’s service records reveal that he
experienced numerous injuries during his service, includ-
ing complaints of lower back pain, hip pain after being
struck by a vehicle, a knee injury suffered during a softball
game, and a back injury after falling while waxing a floor.
His separation examination report documents no knee or
spine conditions, symptoms, or other significant injuries.
In the months after his separation, Carpenter complained
of neck and knee pain, but VA examinations found his
head, neck, and knees to be normal.
In 2007, Carpenter filed a claim for benefits for a right
knee condition, which was denied. In 2010, Carpenter filed
a second claim for benefits for cervical spondylosis and
right knee patella chondromalacia. Carpenter also filed a
report from a private orthopedic surgeon, Dr. Allen, con-
cluding that there is a “probable association” between Car-
penter’s present conditions and the injuries suffered during
his service. The Regional Office denied Carpenter’s claim,
and he appealed to the Board of Veterans’ Appeals (“the
Board”).
Case: 19-2207 Document: 31 Page: 3 Filed: 04/22/2020
CARPENTER v. WILKIE 3
At a Board hearing, Carpenter testified that he told his
examiner about his neck, back, and knee injuries during
his separation examination, but the examiner failed to note
them. He also testified that he separated his patella dur-
ing the softball game in which he injured his knee and had
not suffered any post-service knee injuries. Additionally,
Carpenter’s wife testified that he had experienced knee,
back, and neck pain during the entire 26 years for which
she had known him.
The Board reopened Carpenter’s claim and ordered a
VA examination. The VA examiner determined that Car-
penter’s present conditions were not related to his in-ser-
vice injuries, concluding that it is most likely that
Carpenter’s conditions, identified many years after his sep-
aration, were the result of physical stress since his separa-
tion. The Board denied Carpenter’s claims, and he
appealed to the Veterans Court.
The Veterans Court affirmed the Board’s decision. The
court determined that the Board did not err in crediting the
results of the VA examination over the statements of
Dr. Allen. Decision at *4. Specifically, the court held that
the Board did not err in determining that Dr. Allen’s opin-
ions lack probative value because his opinions were based
on Carpenter’s statements of continuity of neck and knee
pain, which the Board determined were inconsistent with
other evidence of record.
Id. Carpenter appealed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review a decision of the Veterans
Court with respect to a rule of law or interpretation of a
statute or regulation relied on by the Veterans Court in its
decision. 38 U.S.C. § 7292(a). However, except with re-
spect to constitutional issues, we may not review chal-
lenges to factual determinations or challenges to the
application of a law or regulation to the facts of a case.
§ 7292(d)(2).
Case: 19-2207 Document: 31 Page: 4 Filed: 04/22/2020
4 CARPENTER v. WILKIE
On appeal, Carpenter argues that the Veterans Court
erred in denying service connection for his knee and spine
conditions. Specifically, Carpenter argues that the court
failed to give him the benefit of the doubt as required by
38 U.S.C. § 5107(b). Carpenter also argues that the court
failed to credit the opinion of Dr. Allen and consequently
imposed an improperly heightened burden on Carpenter to
demonstrate continuity between his in-service injuries and
his present conditions.
The government responds that we lack jurisdiction to
review the Veterans Court’s decision because Carpenter
raises only factual issues on appeal—specifically, the
Board’s credibility determinations and its weighing of the
evidence in denying service connection.
We agree with the government that Carpenter raises
only factual challenges and we therefore lack jurisdiction
over this appeal. Although Carpenter argues that the Vet-
erans Court committed legal error by failing to give Car-
penter the benefit of the doubt, § 5107(b) applies only when
the evidence is approximately in equipoise. See Ortiz v.
Principi,
274 F.3d 1361, 1364–65 (Fed. Cir. 2001). Here,
the Board did not determine that the evidence was approx-
imately equal but rather that “the preponderance of evi-
dence is against the claim.” J.A. 30. Accordingly, the
benefit-of-the-doubt rule was not engaged, and Carpenter’s
argument amounts to a request for this court to reweigh
the evidence, which we lack jurisdiction to do.
Carpenter similarly attempts to cast the Board’s credi-
bility determinations as a legal error, arguing that the
Board improperly discounted Dr. Allen’s report solely be-
cause it was based on statements made by Carpenter.
However, as the Veterans Court observed, the Board did
not discount Dr. Allen’s opinion solely because it was based
on Carpenter’s statements as Carpenter contends, but ra-
ther because Carpenter’s statements themselves were con-
tradicted by other evidence of record. Decision at *4. It is
Case: 19-2207 Document: 31 Page: 5 Filed: 04/22/2020
CARPENTER v. WILKIE 5
the appropriate role of the Board, as factfinder, to deter-
mine the credibility of evidence. See Buchanan v. Nichol-
son,
451 F.3d 1331, 1337 (Fed. Cir. 2006). Here, the Board
performed this role in determining that Carpenter’s state-
ments were contradicted by other evidence and discounting
Dr. Allen’s opinion accordingly, and its “credibility deter-
mination is a question of fact beyond this court’s jurisdic-
tion.” Gardin v. Shinseki,
613 F.3d 1374, 1380 (Fed. Cir.
2010).
CONCLUSION
We have considered Carpenter’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
dismiss the appeal for lack of jurisdiction.
DISMISSED
