Thompson v. McDonald , 580 F. App'x 901 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDERSON M. THOMPSON,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7078
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-3739, Judge Mary J. Schoelen.
______________________
Decided: September 15, 2014
______________________
ANDERSON M. THOMPSON, of Memphis, Tennessee, pro
se.
JENNIFER E. LAGRANGE, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and SCOTT D. AUSTIN, Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
2 THOMPSON v. MCDONALD
Assistant General Counsel, and TRACEY P. WARREN,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before CHEN, MAYER, and LINN, Circuit Judges.
PER CURIAM.
Anderson M. Thompson appeals the U.S. Court of Ap-
peals for Veterans’ Claims (Veterans Court) decision
affirming the Board of Veterans’ Appeals (Board) denial of
disability compensation for his type II diabetes mellitus,
bilateral peripheral neuropathy of the lower extremities,
and tinea pedis allegedly caused by exposure to Agent
Orange or other herbicides near the Korean Demilitarized
Zone (DMZ) while serving in the U.S. Army during the
Vietnam War. After twice remanding for development of
the record, the Board concluded that there was insuffi-
cient evidence to support Mr. Thompson’s assertion that
he was entitled to a presumption of service connection
under 38 C.F.R. § 3.307(a)(6)(iv) or that he was actually
exposed to Agent Orange or other herbicides in Korea.
The Veterans Court affirmed. Because this appeal dis-
putes only application of law to fact, and the Veterans
Court did not otherwise misinterpret the benefit of the
doubt doctrine, we dismiss for lack of jurisdiction.
I
Mr. Thompson served on active duty in the U.S. Army
from November 1966 to February 1969. From April 1967
to May 1968, he served in Korea with the 833rd Ordnance
Company. See Thompson v. Shinseki, No. 12-3739, 2014
WL 1233924, at *1 (Vet. App. Mar. 26, 2014). Post-service
treatment records from 2006 to 2010 confirm that Mr.
Thompson was diagnosed with type II diabetes mellitus,
diabetes with neuropathy, and tinea pedis. Appellee App’x
22. In May 2007, Mr. Thompson filed for disability com-
pensation, claiming that his current medical problems
THOMPSON v. MCDONALD 3
were caused by exposure to Agent Orange or other herbi-
cides during his service in Korea.
In July 2007, a Department of Veterans Affairs (VA)
regional office (RO) in Nashville, Tennessee sent Mr.
Thompson a letter informing him that evidence would be
needed to establish his entitlement to service connection.
Id. at 68. The RO later sent an amended letter in Decem-
ber 2007 requesting evidence to verify exposure to Agent
Orange. Id. In connection with Mr. Thompson’s claim, the
RO further requested that the National Personnel Rec-
ords Center (NPRC) search for records related to Mr.
Thompson’s potential exposure to herbicides. After the
search produced no relevant records, the RO denied Mr.
Thompson’s claims, explaining that there was no evidence
that his diabetes arose during service or to a compensable
degree within one year following separation. And, further,
there was no evidence of record that Mr. Thompson had
actually been exposed to herbicides during service.
Mr. Thompson appealed the RO’s determination to
the Board. During an August 2009 hearing, Mr. Thomp-
son testified that he was assigned to the 833rd Ordnance
Company in Korea as a quartermaster, where his respon-
sibilities included delivering supplies to the First and
Seventh Infantry Divisions near the DMZ. Id. at 50. Mr.
Thompson testified that, on occasion, for approximately
three days at a time, he was required to camp on a base
near the DMZ. Id. He claimed that, as a result of being in
the area, he had been exposed to Agent Orange or herbi-
cides. When asked by the presiding judge how he knew
that he had been exposed, Mr. Thompson responded that
he did not realize until many years later that he had been
in an area where herbicides had been used. Id. at 56.
In December 2009, the Board remanded Mr. Thomp-
son’s claims to the Appeals Management Center (AMC) to
obtain records regarding the 833rd Ordnance Company
from the U.S. Army and Joint Services Records Research
4 THOMPSON v. MCDONALD
Center (JSRRC). The AMC requested records from the
JSRRC as well as the National Archives Records Admin-
istration (NARA) to ascertain whether Mr. Thompson’s
company was part of, or otherwise attached to, divisions
deemed presumptively exposed to Agent Orange or other
herbicides in Korea. The NARA found no records. Records
concerning the Eighth Army, however, confirmed that the
833rd Ordnance Company was part of the Eighth U.S.
Army Support at Camp Ames. Beyond this, the AMC was
unable to determine which infantry divisions the company
supported.
In November 2010, Mr. Thompson submitted an un-
dated list entitled “Supported Units,” which listed 31
units, including the Second and Seventh Infantry Divi-
sions, but it lacked any corresponding reference to the
833rd Ordnance Company. Id. at 40. Thus, in March
2011, the Board again remanded for record development.
In March 2012, the AMC provided a review of the 833rd
Ordnance Company’s histories. These histories stated
that the company was stationed 21 miles from the DMZ,
but did not indicate specific duties performed by its mem-
bers or whether or not the company was attached to the
Second or Seventh Infantry Divisions, as Mr. Thompson
claimed. Id. at 24–25.
In December 2012, the Board issued a decision finding
that Mr. Thompson was not entitled to a presumption of
herbicide exposure because the relevant service records
did not establish that he had served in a military unit
identified by the Department of Defense (DoD) as one that
operated in or near the DMZ during the relevant time
period. The Board compared Mr. Thompson’s lay testimo-
ny with the undated “Supported Units” document. Id. In
this regard, Mr. Thompson had testified that he support-
ed the First and Seventh Infantry Divisions, but the
document listed the Second and Seventh Infantry Divi-
sions. Id. at 39–40. And, in any event, multiple attempts
to corroborate Mr. Thompson’s testimony returned noth-
THOMPSON v. MCDONALD 5
ing to support his entitlement to a presumption of service
connection under 38 C.F.R. § 3.307(a)(6)(iv).
The Board also concluded that there was insufficient
evidence to establish actual exposure to herbicides. Spe-
cifically, Mr. Thompson’s personnel records are silent
regarding in-service herbicide exposure, or any symptoms
related to his claimed disabilities. Id. at 25–26, 29. Alt-
hough Mr. Thompson’s claims lacked contemporaneous
medical evidence, the Board acknowledged that compe-
tent lay evidence of symptoms after service could be
considered, if credible, regardless of this deficiency. Bu-
chanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir.
2006). In this case, however, the Board determined that
Mr. Thompson’s lay evidence that his tinea pedis was
present from the time of active duty to the present was
not credible because Mr. Thompson expressly denied any
skin disability at the time of his separation examination.
Appellee Appx’ 30. As to his diabetes and related neurop-
athy, Mr. Thompson did not allege that these disorders
arose while in-service or provide evidence of disease
etiology. Accordingly, the Board found his claims were
unsubstantiated and the evidence weighed against a
finding of service connection. Id. at 30.
Mr. Thompson appealed to the Veterans Court, argu-
ing that that the Board should have applied the benefit of
the doubt doctrine because evidence of exposure met the
requirement of 38 U.S.C. § 5107(b). Section 5107(b)
states: “When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.” Id. Thus, section
5107(b) applies when the Board determines that the
evidence is in equipoise. Conversely, when the preponder-
ance of the evidence weighs against the claim, “[the
Board] necessarily has determined that the evidence is
not ‘nearly equal’ or ‘too close to call,’ and the benefit of
the doubt rule therefore has no application.” Ortiz v.
6 THOMPSON v. MCDONALD
Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Veter-
ans Court reviewed the Board’s fact findings for clear
error and affirmed the Board’s determination that the
benefit of the doubt rule did not apply. Thompson, 2014
WL 1233924, at *4.
Mr. Thompson appealed, asserting this Court’s juris-
diction under 38 U.S.C. § 7292.
II
Our jurisdiction over appeals from the Veterans Court
is limited. While we may review challenges to the validity
or interpretation of a statute or regulation relied on by
the Veterans Court, we lack jurisdiction to review a
challenge to a “factual determination” or “law or regula-
tion as applied to the facts.” 38 U.S.C. § 7292(d)(2).
The DoD confirmed that herbicide Agent Orange was
used from April 1968 through July 1969 along the DMZ in
Korea. Appellee App’x 44. The Board recognized that the
Second and Seventh Infantry Divisions had certain units
in the affected area at the time Agent Orange was being
used. Id. at 44–45. Under 38 U.S.C. § 1116, if it is deter-
mined that a veteran served between April 1, 1968 and
August 31, 1971 in a unit determined by the DoD to have
operated in or near the Korean DMZ—where herbicides
are known to have been applied—then he or she is pre-
sumed to have been exposed to herbicides containing
Agent Orange. 38 C.F.R. § 3.307(a)(6)(iv). This presump-
tion applies to enumerated diseases associated with
exposure to herbicide agents, one of which is type II
diabetes mellitus. 38 C.F.R. § 3.309(e).
This presumption is an exception to the rule that es-
tablishing service connection requires medical, or in
certain circumstances lay, evidence showing: (1) current
disability; (2) incurrence or aggravation in service; and (3)
nexus between the in-service injury or disease and cur-
rent disability. See Shedden v. Principi, 381 F.3d 1163,
THOMPSON v. MCDONALD 7
1167 (Fed. Cir. 2004). Disorders diagnosed after discharge
may still be considered service connected if the evidence,
including the pertinent service records, establishes that
the injury or disease was incurred by the veteran in-
service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34
F.3d 1039, 1043 (Fed. Cir. 1994).
III
The determinative issue is whether Mr. Thompson’s
military service caused his current medical problems.
This implicates Mr. Thompson’s contention that he was
exposed to Agent Orange or other herbicides while serving
in Korea.
As to his claim of presumptive service connection for
type II diabetes and its related condition of neuropathy,
the Board assessed whether Mr. Thompson’s unit operat-
ed “in or near”—or was otherwise attached to a unit that
operated in or near—the Korean DMZ during the relevant
time period. 38 C.F.R. § 3.307(a)(6)(iv). The service rec-
ords confirm that Mr. Thompson was stationed in Korea
from April 1967 to May 1968 and assigned to the 833rd
Ordnance Company. But these records do not indicate
that Mr. Thompson’s company was among those consid-
ered by the DoD as stationed along the DMZ during this
time period.
Mr. Thompson nonetheless maintains that he served
near the DMZ during this time period, even though the
service records do not support this contention. The Board
granted Mr. Thompson a hearing to explain the nature of
his service. Appellee App’x 48–64. In accordance with its
duty to assist veterans develop their claims and to pro-
cure service records under 38 U.S.C. § 5103A, the Board
twice remanded for development of the record, but no
corroborative evidence was found.
Mr. Thompson relies on two pieces of evidence to sup-
port his assertion that he was exposed while supporting
8 THOMPSON v. MCDONALD
other units along the DMZ: (1) the undated “Supported
Units” list; and (2) his lay testimony that his duties in the
833rd Ordnance Company required trips to the DMZ.
After analyzing the “Supported Units” list, the Board
concluded that the list was of limited probative value
because it did not specifically reference the 833rd Ord-
nance Company or include a date. Id. at 25. Regarding
Mr. Thompson’s lay testimony, the Board found this
insufficient to establish service connection, explaining
that Mr. Thompson’s service personnel records are silent
as to in-service herbicide exposure, and lay statements
alone do not link his later-occurring diabetes with his
service during the war. Mr. Thompson does not dispute
the Board’s conclusions or argue that the Board failed to
fulfill its duty to assist. We discern no challenge to the
Veterans Courts’ interpretation of the law, and we lack
jurisdiction to reconsider the sufficiency of the evidence.
Mr. Thompson also argues that the Board erred in
denying disability compensation for his tinea pedis. The
Board correctly noted, however, that tinea pedis is not
among the enumerated medical problems giving rise to a
presumption of service connection under § 3.307(a)(6).
Accordingly, the Board considered this claim as one
predicated on direct causation. To support his claim, Mr.
Thompson relies on his testimony that he had been treat-
ed for the affliction while in service. Id. at 53. This testi-
mony, however, is not otherwise supported by the record.
Notably, Mr. Thompson’s treatment records during his
period of service are silent as to this particular diagnosis
or its symptoms. Id. at 29. A medical examiner’s report
delivered at the time of discharge, dated February 1969,
similarly did not indicate skin abnormalities. Id.
Rather, the Board identified that the earliest post-
service mention of the relevant symptoms occurred in
August 1974, when an examiner observed a skin disorder.
Id. The examiner did not, however, provide any opinion as
to the cause of the disorder. Id. The Board concluded,
THOMPSON v. MCDONALD 9
therefore, that Mr. Thompson’s tinea pedis did not mani-
fest in service and nothing in the record supported that
his current diagnosis is causally related to an in-service
disease or injury. We lack jurisdiction to reconsider the
Board’s determination on this matter.
Alternatively, Mr. Thompson argues that his claim is
entitled to the benefit of the doubt under 38 U.S.C. §
5107(b). The Board found that the evidence weighed
against each of Mr. Thompson’s claims and thus conclud-
ed that the benefit of the doubt rule was not applicable,
and the Veterans Court affirmed. The Veterans Court
correctly reasoned that the benefit of the doubt rule does
not apply when the evidence is not in equipoise. Fagan v.
Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ferguson
v. Principi, 273 F.3d 1072, 1075 (Fed. Cir. 2001) (“Thus
the evidence was not in equipoise but rather preponderat-
ed against [the veteran’s] claim. Therefore, the benefit-of-
the-doubt doctrine was not applicable.”). We lack jurisdic-
tion to reweigh the evidence considered by the Board.
We have considered Mr. Thompson’s remaining ar-
guments and find them unpersuasive. Accordingly, we
dismiss Mr. Thompson’s appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.