Carroll v. McDonald ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HARVEY CARROLL, JR.,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1613
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-3616, Judge Bruce E. Kasold.
______________________
Decided: September 14, 2016
______________________
HARVEY CARROLL, JR., Richmond, KY, pro se.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., SCOTT D. AUSTIN; Y. KEN LEE,
CHRISTOPHER O. ADELOYE, Office of General Counsel,
United States Department of Veterans Affairs, Washing-
ton, DC.
2 CARROLL v. MCDONALD
______________________
Before PROST, Chief Judge, DYK, and STOLL, Circuit
Judges.
PER CURIAM.
Harvey Carroll, Jr. appeals the judgment of the Unit-
ed States Court of Appeals for Veterans Claims (“Veter-
ans Court”), which held that the Board of Veterans’
Appeals (“Board”) did not err in its denial of disability
benefits. The Board found that Carroll did not provide
evidence of an in-service event that would cause post-
traumatic stress disorder (“PTSD”) and that his renal
cancer, a cyst in his kidney, a cyst in his testicle, and
epididymitis were not service connected. We affirm.
BACKGROUND
Carroll served on active duty military between June
1983 and May 1986, and continued his service post-
discharge in the Individual Ready Reserve (“IRR”) until
June 1989. In 2008, Carroll filed a disability claim with
the Department of Veterans Affairs (“VA”) requesting
disability benefits based on allegedly service-connected
PTSD and various conditions allegedly related to radia-
tion exposure during service. Carroll claims, among other
things, that he was exposed to ionizing radiation at some
point during his active duty through his involvement in a
“pulse nuclear reactor exercise to terrorist threat” at a
classified location. J.A. 23. The Regional Office (“RO”)
denied Carroll’s service connection for each of the alleged
conditions.
In 2014, Carroll appealed to the Board, which af-
firmed the RO’s determination. The Board found “no
diagnosis of PTSD, [and] no evidence of an in-service
incurrence of a psychiatric disability.” J.A. 17. As to
Carroll’s claim that his various other disabilities resulted
CARROLL v. MCDONALD 3
from in-service exposure to radiation, the Board found
“insufficient evidence of radiation exposure” given that
“there is no service documentation and [Carroll] did not
have a military occupational specialty that would involve
such exposure.” J.A. 25. The Veterans Court affirmed.
DISCUSSION
This court has “jurisdiction to review and decide any
challenge to the validity of any statute or regulation or
any interpretation thereof . . . , and to interpret constitu-
tional and statutory provisions, to the extent presented
and necessary to a decision.” 38 U.S.C. § 7292(c). The
court “may not review . . . a challenge to a factual deter-
mination, or . . . a challenge to a law or regulation as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2).
Carroll first argues that the VA misstates his “in-
service dates,” and therefore failed to recognize that he
developed PTSD following stressor events that occurred
during his active duty service. The Veterans Court re-
viewed the record and held that the Board did not clearly
err in its finding that Carroll served on active duty be-
tween June 1983 and May 1986. Although Carroll argues
that his IRR services were active duty, the Veterans
Court affirmed the Board’s finding of no evidence that
Carroll “had active duty, active duty for training, or
inactive duty training with line-of-duty injuries” while in
the IRR. J.A. 6 (citing 38 U.S.C. §§ 1110, 101(24)(C)). To
the extent that Carroll asks us to revisit these factual
findings, we are without jurisdiction to do so. See 38
U.S.C. § 7292(d)(2).
Second, Carroll challenges the Veterans Court’s
holding that he was not competent to self-diagnose his
PTSD. In Jandreau v. Nicholson, we held that “[l]ay
evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent
to identify the medical condition, (2) the layperson is
4 CARROLL v. MCDONALD
reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a
later diagnosis by a medical professional.” 492 F.3d 1372,
1377 (Fed. Cir. 2007) (footnote omitted). We identified a
distinction between conditions that are “simple” and may
be more amenable to competent lay diagnosis, such as a
broken leg, and conditions that are less simple, such as a
form of cancer. See id. at 1377 n.4. Here, the Board de-
termined that Carroll was not competent to self-diagnose
his PTSD. The Veterans Court found no error in the
Board’s finding that Carroll was not competent to give a
self-diagnosis of PTSD. We see no legal error in the Vet-
erans Court’s determination given the complexity in-
volved in a PTSD diagnosis.
Third, Carroll argues that the Veterans Court erred
in failing to credit his statements that he was exposed to
radiation during service. We may not review such factual
determinations. Given the Veterans Court’s determina-
tion we also see no error in its determination that Carroll
was not entitled to a presumption of service connection
under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). The
Board found that the presumption of service connection
did not apply because Carroll had not alleged that he was
involved in a “radiation risk activity” as it is narrowly
defined. Again, review of that determination is beyond our
jurisdiction.
Fourth, Carroll asserts that the VA failed in its duty
to assist by failing to conduct a psychiatric examination to
determine whether he suffered from PTSD. Service con-
nection for PTSD for non-combat veterans requires evi-
dence of the existence of an in-service stressor. 38 C.F.R.
§ 3.304(f). The Veterans Court found no error in the
Board’s determination that a medical examination was
not necessary because, as a factual matter, there was no
evidence that Carroll’s alleged PTSD was linked to his
service or that it manifested itself during the applicable
presumptive period. Review of the Veterans Court’s
CARROLL v. MCDONALD 5
determination is beyond our jurisdiction. The other argu-
ments regarding duty to assist that Carroll sets forth in
his Supplemental Brief were either not addressed by the
Veterans Court or involve purely factual determinations
which we have no jurisdiction to review.
AFFIRMED
COSTS
No costs.