NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM M. MATTHEWS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-1097
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1687, Judge Mary J. Schoelen.
______________________
Decided: September 20, 2018
______________________
WILLIAM M. MATTHEWS, Philadelphia, PA, pro se.
JESSICA COLE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR.; BRIAN D. GRIFFIN, CHRISTOPHER
O. ADELOYE, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
2 MATTHEWS v. WILKIE
Before NEWMAN, LOURIE, and REYNA, Circuit Judges.
NEWMAN, Circuit Judge.
William M. Matthews appeals the decision of the
Court of Appeals for Veterans Claims (“Veterans Court”)
affirming a Board of Veterans’ Appeals (“Board”) denial of
his claim for disability compensation for AIDS arising
from human immunodeficiency virus (“HIV”) infection. 1
The government challenges our appellate jurisdiction,
stating that this case presents only questions of fact and
thus is not within our authority, absent constitutional
issues. We agree, and dismiss this appeal for lack of
jurisdiction.
BACKGROUND
Mr. Matthews served on active duty with the United
States Marine Corps from May 1979 to December 1982.
In 1997 he was diagnosed with AIDS. In July 2008 he
filed a claim for disability compensation for service-
related infection with HIV, stating that in June 1979 he
became infected after he had a tooth extracted and drank
water from a canteen that he stated contained semen.
In October 2008 the Regional Office denied Mr. Mat-
thews’ service-connection claim. He appealed, and the
Board found that the preponderance of evidence was
against service connection. The Board relied on two
medical examiner opinions. In the first opinion, an exam-
iner with a specialty in infectious diseases opined that it
was less likely than not that Mr. Matthews contracted
AIDS by drinking water from a canteen after a tooth
1 Matthews v. Shulkin, No. 16-1687,
2017 WL
3224890 (Vet. App. July 31, 2017) (“Vet. Ct. Op.”); In re
Matthews, Bd. Vet. App. 1612870,
2016 WL 2652792
(Mar. 30, 2016) (“BVA Dec.”).
MATTHEWS v. WILKIE 3
extraction, even if the water was contaminated with
semen. The medical examiner explained that HIV is not
spread by air or water and that the primary modes of
transmission of HIV are through unprotected sex or
sharing intravenous needles. The examiner stated that
HIV survives outside the human body for less than one
minute, and that there are no cases in the medical litera-
ture describing transmission by drinking water contain-
ing semen. The examiner also reviewed Mr. Matthews’
service medical records and observed that there were no
complaints or treatment for any HIV-related symptoms or
other significant health problems suggestive of HIV
infection.
A second medical examiner reached the same conclu-
sion. The second examiner observed that the average
time between HIV infection and development of AIDS is
ten years, whereas eighteen years had elapsed between
the 1979 canteen water-drinking incident and Mr. Mat-
thews’ 1997 diagnosis with AIDS. The second examiner
concluded that it was “most likely” that Mr. Matthews’
diagnosis of AIDS resulted from HIV infection after his
discharge from service.
On appeal of the Regional Office decision, the Board
considered Mr. Matthews’ testimony concerning his
theory of infection during service. The Board acknowl-
edged that “[a] veteran’s lay statements may be compe-
tent to support a claim for service connection by
supporting the occurrence of lay observable events or the
presence of disability or symptoms of a disability subject
to lay observation.” BVA Dec. at *8; see also
38 C.F.R.
§ 3.159(a)(2) (“Lay evidence is competent if it is provided
by a person who has knowledge of facts or circumstances
and conveys matters that can be observed and described
by a lay person.”). However, the Board concluded that “as
specialized training is required for a determination as to a
diagnosis of AIDS and mode of HIV transmission, such
therefore is not susceptible of lay opinions.”
Id. Accord-
4 MATTHEWS v. WILKIE
ingly, the Board did not give any probative weight to Mr.
Matthews’ view of the source of his HIV infection.
Id.
The Veterans Court affirmed, finding no error in the
Board’s development of the evidence, the adequacy of its
rationale, and the basis of its decision. Vet. Ct. Op. at *2.
Mr. Matthews appeals to this court. 2 He asserts fac-
tual errors and argues that his lay evidence was not
adequately considered. See Appellant’s Inf. Br. 3 (stating
“My arguments consist mainly of the fact . . . the chrono-
logical order is a little off . . . . [w]hich means that the
information that was used to make the decision was
wrong”); see also Appellant’s Inf. Reply Br. 2. He further
argues that it was error for the Board to base its decision
“on not having any record of treatment for HIV” because
“there would have been no records of treatment[ ] if no
testing was being performed in the military at the time of
my active service.” Appellant’s Inf. Br. 3; see also Appel-
lant’s Inf. Reply Br. 3.
APPELLATE JURISDICTION
The government argues that the Federal Circuit does
not have jurisdiction of any aspect of the appeal, stating
that there are no questions of law or constitutional right,
and that factual questions decided by the Veterans Court
are beyond our appellate authority.
This court’s appellate jurisdiction with respect to de-
cisions of the Veterans Court is assigned by statute. We
have jurisdiction “with respect to the validity of a decision
of the Court on a rule of law or of any statute or regula-
tion . . . or any interpretation thereof (other than a deter-
mination as to a factual matter).”
38 U.S.C. § 7292(a).
Constitutional issues, whether applied to law or fact, are
2 Mr. Matthews is proceeding pro se; such “filings
must be read liberally.” Harris v. Shinseki,
704 F.3d 946,
948 (Fed. Cir. 2013).
MATTHEWS v. WILKIE 5
subject to our review.
38 U.S.C. § 7292(d)(1). Unless a
constitutional issue is involved, this court lacks jurisdic-
tion to “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).
Mr. Matthews argues that the Veterans Court erred
in law in the “chronological order” of his disease progres-
sion, arguing that it is medically possible to have a
lengthy delay between infection with HIV and manifesta-
tion of AIDS, in his case an eighteen-year delay. This
medical fact is not disputed. See World Health Organiza-
tion Online Q&A for HIV/AIDS, available at
http://www.who.int/features/qa/71/en/ (“The time between
acquiring HIV and an AIDS diagnosis is usually between
10–15 years, but sometimes longer.”). The Board relied
on the two medical examiners, and held that these expert
opinions outweighed Mr. Matthews’ view that his HIV
infection resulted from the 1979 canteen-drinking water
incident. Mr. Matthews argues that his view should have
prevailed, for lay evidence is authorized by statute and
regulation.
Mr. Matthews cites
38 U.S.C. § 5107(b), which pro-
vides that “[t]he Secretary shall consider all information
and lay and medical evidence of record in a case before
the Secretary with respect to benefits under laws admin-
istered by the Secretary.” In accordance with
38 C.F.R.
§ 3.307(b), “[t]he factual basis [for establishing a chronic
disease] may be established by medical evidence, compe-
tent lay evidence or both.” And
38 C.F.R. § 3.303(a)
provides that each disabling condition for which a veteran
seeks service connection “must be considered on the basis
of . . . all pertinent medical and lay evidence.” Thus, “lay
evidence is one type of evidence that must be considered,
if submitted, when a veteran’s claim seeks disability
benefits.” Buchanan v. Nicholson,
451 F.3d 1331, 1335
(Fed. Cir. 2006). Mr. Matthews argues that his lay evi-
6 MATTHEWS v. WILKIE
dence regarding the source of his HIV infection and its
progression to AIDS was inadequately considered.
“[W]e have jurisdiction over the question of whether
the Board errs as a matter of law when it refuses to
consider lay evidence based on the assumption that only
those possessing specialized medical training and
knowledge are competent to diagnose or provide an opin-
ion on a disease or injury.” Robinson v. Shinseki, 312 F.
App’x 336, 338 (Fed. Cir. 2009) (citing Buchanan,
451
F.3d at 1334–35, Jandreau v. Nicholson,
492 F.3d 1372,
1376–77 (Fed. Cir. 2007)). Here, however, the Board
heard Mr. Matthew’s lay testimony, thoroughly weighed
it, and found his allegations wanting. E.g., BVA Dec. at
*7 (“The Board finds these statements by the appellant
about drinking semen from a canteen in service to be
facially implausible, biased and inconsistent with the
natural properties of semen.”). The Board also considered
Mr. Matthews’ competency to assess the etiology of his
medical condition, including his “competence to report
incurring HIV infection during his military service,” and
found that he lacked that competence because specialized
training is required to diagnose AIDS and mode of trans-
mission of HIV, and thus is not susceptible to proof
through lay opinions.
Id. at *7–8. The Board also ad-
dressed Mr. Matthews’ lay evidence regarding in-service
symptoms, concluding that “medical examination is
needed in order to properly attribute [to a particular
malady] generic symptoms such as the weight loss, sore
throat, swollen glands and fatigue [Mr. Matthews] testi-
fied he experienced beginning in 1983.”
Id. (citing King v.
Shinseki,
700 F.3d 1339 (Fed. Cir. 2012)).
The regulatory definition of competent lay evidence is:
any evidence not requiring that the proponent
have specialized education, training, or experi-
ence. Lay evidence is competent if it is provided
by a person who has knowledge of facts or circum-
MATTHEWS v. WILKIE 7
stances and conveys matters that can be observed
and described by a lay person.
38 C.F.R. § 3.159(a)(2); see also 146 Cong. Rec. H9909,
H9915 (Oct. 17, 2000) (“Competent evidence would be
evidence that is offered by someone capable of attesting to
it; it need not be evidence that is credible or sufficient to
establish the claim.”). In Jandreau, this court further
explained that:
Lay 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 reporting a contem-
poraneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later
diagnosis by a medical professional.
492 F.3d at 1377 (footnote omitted).
“The competence of lay testimony depends on the na-
ture of the condition.” Young v. McDonald,
766 F.3d
1348, 1353 (Fed. Cir. 2014). As the complexity of the
condition increases, expert evaluation becomes more
necessary. See id. at 1353 (post-traumatic stress disorder
is too complex for lay evidence, standing alone, to be
“competent and sufficient to identify.”); King, 700 F.3d at
1345 (lay testimony on causation of bilateral hip and back
conditions was not competent); Jandreau,
492 F.3d at
1377 n.4. (“Sometimes the layperson will be competent to
identify the condition where the condition is simple, for
example a broken leg, and sometimes not, for example a
form of cancer.”); Fleming v. McDonald, No. 15-3987,
2016
WL 5400510, at *4 (Vet. App. Sept. 28, 2016) (lay testi-
mony linking anxiety disorder and panic attacks to ser-
vice was not competent”); 146 Cong. Rec. H9909, H9915
(Oct. 17, 2000) (“A veteran (or layperson) can provide
competent evidence that he or she has a pain in the knee
since that evidence is fit for the purpose for which it is
offered. However, VA would not be bound to accept a
8 MATTHEWS v. WILKIE
veteran’s assertion that he has a torn ligament, for that
would require more sophisticated information, such as the
results of a medical examination or special medical test-
ing.”). The Board held that the testimony of Mr. Mat-
thews and the views of his attorney, concerning the
etiology of this HIV infection, were not of probative
weight. BVA Dec. at *8. The Board then gave dispositive
weight to the testimony of the medical examiners concern-
ing the modes of transmission of HIV and its period of
gestation, and adopted their opinions as to the likelihood
of infection on Mr. Matthews’ theory of ingesting contam-
inated water. And the Veterans Court discerned no error
in the Board’s decision. Vet. Ct. Op. at *2.
Mr. Matthews stresses that at the time of his military
service there was no testing for HIV infection, pointing to
the testimony of a medical examiner that testing of new
recruits began in 1985. See Appellant’s Inf. Br. 3; see also
Regional Office “Supplemental Statement of the Case,”
May 13, 2015, at 4–5 (“The FDA licensed the first com-
mercial blood test for HIV in 1985 and the Pentagon
announced a plan to begin testing new military recruits
the same year.”).
In evaluating the competency of Mr. Matthews and
the plausibility and weight of the evidence he and the
medical experts presented, the Board did not commit legal
error. The Board discussed the symptoms that Mr. Mat-
thews stated he experienced after drinking from the
canteen, including weight loss, sore throat, swollen
glands, and fatigue. The Board did not err in law in
weighing this lay evidence, as well as that regarding
etiology, in the context of the evidence presented by the
two medical examiners. The Veterans Court also did not
err in law in considering the competency of the entirety of
the evidence. Absent legal error, we do not review the
Board’s finding of fact, as affirmed by the Veterans Court,
that there was not service connection for Mr. Matthews’
AIDS affliction.
MATTHEWS v. WILKIE 9
CONCLUSION
We have considered all of Mr. Matthews’ arguments.
Because Mr. Matthews does not raise any issue within
our jurisdiction, we dismiss this appeal.
DISMISSED
Each party shall bear its costs.
