Buckner v. Shinseki , 533 F. App'x 993 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LUTHER J. BUCKNER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Defendant-Appellee.
______________________
2013-7071
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3536, Judge Mary J. Schoelen.
______________________
Decided: August 14, 2013
______________________
LUTHER J. BUCKNER, of Shawnee, Oklahoma, pro se.
DANIEL RABINOWITZ, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
2 LUTHER BUCKNER v. SHINSEKI
Assistant General Counsel, and MEGHAN D. ALPHONSO,
Attorney, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Before LOURIE, MAYER, and O’MALLEY, Circuit Judges.
PER CURIAM.
Luther J. Buckner appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”), affirming the Board of Veterans’ Appeals’
(“Board”) denial of entitlement to disability compensation
for a gastrointestinal disorder. Buckner v. Shinseki, No.
11–3536, 2012 WL 5900987 (Ct. Vet. App. Nov. 26, 2012).
Because Mr. Buckner’s appeal does not raise any constitu-
tional issues and only challenges factual determinations
or the application of the law to the facts of his case, it is
dismissed for lack of jurisdiction.
BACKGROUND
Mr. Buckner served in the United States Army from
April 1965 until April 1968, including service in the
Republic of Vietnam. Buckner, 2012 WL 5900987, at *1.
During his service, Mr. Buckner developed cancer of the
right testicle and underwent two surgeries—one to re-
move the testicle and another to remove lymph nodes to
determine whether the cancer had spread. Id. Following
the second surgery, Mr. Buckner’s doctors concluded that
the cancer had not spread and determined that Buckner
was cured. Id.According to Mr. Buckner’s private medical records,
Mr. Buckner underwent an upper gastrointestinal series
in February 1988 and was treated for abdominal disten-
tion in March 1990. Id. Mr. Buckner’s physician reported
that Mr. Buckner had told him that he had received
radiation therapy in 1967 for carcinoma of the testicle.
Id. The physician opined that Mr. Buckner’s gastrointes-
tinal disorder could be related to past radiation treat-
ment. Id.LUTHER BUCKNER v. SHINSEKI 3
In November 1994, Mr. Buckner submitted a claim to
the Department of Veterans Affairs (“VA”) for disability
compensation for stomach problems diagnosed as “possi-
ble radiation enteritis as secondary to service-connected
disability acquired absence, right testicle for carcinoma.”
Id. (footnote, citation, and internal quotation marks
omitted). “‘Radiation enteritis’ is defined as ‘damage to
the small intestine by ionizing radiation.” Id. at *1 n.1
(quoting DORLAND’S ILLUSTRATED MEDICAL DICTIONARY
624 (32d ed. 2012)). In August 1995, the Regional Office
(“RO”) denied Mr. Buckner’s claim, concluding that there
was no evidence of a gastrointestinal disorder during
military service and no evidence that Mr. Buckner re-
ceived radiation treatment during service. Id.The Board reopened Mr. Buckner’s claim in November
2005, after Mr. Buckner and his spouse submitted addi-
tional statements in support of the claim and requested a
copy of Mr. Buckner’s service medical records from the
VA. Id. at *2. The Board remanded the claim to the
Appeals Management Center (“AMC”), and the AMC
ultimately concluded that there was no evidence connect-
ing Mr. Buckner’s gastrointestinal condition with his
military service. Id. Subsequently, the Board again
remanded Mr. Buckner’s claim for further development,
including a VA examination. Id. The VA examination
was conducted in March 2007, and the examiner opined
that Buckner’s gastrointestinal disorder did not have its
onset during service and did not result from Mr. Buck-
ner’s testicular cancer. Id.
In October 2007, the RO denied entitlement to disabil-
ity compensation for Mr. Buckner’s gastrointestinal
disorder, concluding that it was not secondary to his
service-connected testicular carcinoma or post-traumatic
stress disorder disabilities, or due to herbicide exposure.
Id. Mr. Buckner’s request for reconsideration was denied,
and Mr. Buckner appealed to the Veterans Court. Id. In
August 2009, the Veterans Court vacated the Board’s
decision and remanded the claim pursuant to a joint
4 LUTHER BUCKNER v. SHINSEKI
motion for remand. Id. The Board then remanded Mr.
Buckner’s claim to the RO for further development. Id.
In January 2010, the RO requested that the National
Personnel Records Center (“NPRC”) provide Mr. Buck-
ner’s hospitalization and treatment records from his
service for the three months prior to Buckner’s treatment
for testicular cancer. Id. In response, the NPRC provided
all of the available requested records. Id. The records the
NPRC provided, however, already were part of the record
before the RO. Id. The RO ultimately denied Mr. Buck-
ner’s claim, which then came before the Board. Id. The
Board also denied entitlement to disability compensation,
concluding that
[t]he preponderance of the evidence is against
finding that [Mr. Buckner’s] gastrointestinal dis-
order manifested in service or within one year of
separation from service, is the result of herbicide
exposure in service, or is proximately due to or
been aggravated by service or a service-connected
disability, including posttraumatic stress disorder
or right testicle carcinoma.
A15. The Veterans Court affirmed, rejecting Mr. Buck-
ner’s arguments that “the Board erred in giving greater
weight to the VA examiner’s opinion than to the opinion
of his private physicians” and that the VA did not fulfill
its duty to assist under 38 U.S.C. § 5103A by “fail[ing] to
obtain service medical records that detail the operation he
had and another record that shows that he was treated
for a stomach problem while in Vietnam.” Buckner, 2012
WL 5900987, at *3–6. Mr. Buckner appealed.
ANALYSIS
“This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute.” Kyhn v. Shinseki,
716 F.3d 572, 575 (Fed. Cir. 2013). Under 38 U.S.C.
§ 7292(a), this court may review “the validity of a decision
of the [Veterans] Court on a rule of law or any statute or
regulation . . . or any interpretation thereof . . . that was
LUTHER BUCKNER v. SHINSEKI 5
relied on by the Court in making the decision.” Section
7292(d)(2), however, provides that, “[e]xcept to the extent
that an appeal . . . presents a constitutional issue, [this
court] may not review (A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.”
On appeal, Mr. Buckner disputes a number of the
Veterans Court’s determinations. 1 In particular, Mr.
Buckner suggests that the court improperly weighed
medical evidence related to his gastrointestinal disorder.
The Veterans Court’s conclusions aligned with those of
the examiner reached following the March 2007 VA
examination. But, according to Mr. Buckner, the VA
examiner merely questioned him about his condition,
whereas his private physicians conducted an endoscopic
examination. Consequently, Mr. Buckner suggests that
his private physicians’ opinions should have been given
more weight than those of the VA examiner. The Veter-
1 Mr. Buckner does not expressly raise any consti-
tutional challenges, and we conclude that there are no
constitutional issues presented in this appeal. See Pinck-
ney v. Shinseki, 467 F. App’x 895, 897 (Fed. Cir. 2012)
(finding that the appellant did not raise any constitution-
al issues when his arguments merely challenged the
correctness of factual conclusions and the application of
law to the facts of the case). Mr. Buckner expresses
frustration with his inability to present his arguments in
person because of his inability to travel to Washington,
D.C., and he requests that we order the Veterans Court to
conduct a hearing in Muskogee, Oklahoma. This request,
however, does not raise a constitutional issue, and is
beyond the power of this court. While we are sympathetic
to Mr. Buckner’s concerns, it appears that the Board and
Veterans Court addressed all of Mr. Buckner’s arguments
and reached their determinations after evaluating all
available evidence.
6 LUTHER BUCKNER v. SHINSEKI
ans Court’s weighing of evidence, however, is a factual
determination, and reviewing such a determination is
beyond the jurisdiction of this court. Bastien v. Shinseki,
599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and
weighing of evidence and the drawing of appropriate
inferences from it are factual determinations committed
to the discretion of the fact-finder. We lack jurisdiction to
review these determinations.”).
Mr. Buckner also suggests that the Veterans Court
failed to appreciate that exposure to radiation or chemi-
cals, such as the herbicide Agent Orange, can cause
medical problems that manifest many years after expo-
sure. Whether the evidence of record establishes a nexus
between an in-service occurrence and a post-service
disability, however, is also a factual determination that
this court lacks jurisdiction to review. See Leonhardt v.
Shinseki, 463 F. App’x 942, 947 n.3 (Fed. Cir. 2012)
(“Whether there was sufficient medical or lay evidence in
the record, as of 1961, to establish nexus is a factual
determination that this court lacks jurisdiction to re-
view.”); Johnson v. Shinseki, 440 F. App’x 919, 922 (Fed.
Cir. 2011) (“Mr. Johnson effectively asks this court to
reconsider the evidence and his medical history to con-
clude that there is a nexus between his back condition
and his military service. This is a quintessential factual
determination that we are without jurisdiction to
make.”). 2
Finally, Mr. Buckner suggests that the VA did not
comply with its duty to assist by failing to obtain certain
service medical records. The VA has a duty to assist
under 38 U.S.C. § 5103A, and that duty includes
“mak[ing] reasonable efforts to assist a claimant in ob-
2 In accordance with Federal Circuit Rule 32.1(d),
we refer to nonprecedential dispositions for “guidance or
persuasive reasoning,” but we do not give such disposi-
tions “the effect of binding precedent.”
LUTHER BUCKNER v. SHINSEKI 7
taining evidence necessary to substantiate a claimant’s
claim.” § 5103A(a)(1); see also Golz v. Shinseki, 590 F.3d
1317, 1320–21 (Fed. Cir. 2010). The Veterans Court
upheld the Board’s determination that the VA had ful-
filled its duty to assist by “ma[king] several requests to
NPRC that did not reveal any additional service medical
records or suggest that there might have been records
that were not produced.” Buckner, 2012 WL 5900987, at
*5. We lack jurisdiction to review this conclusion, as the
Veterans Court was merely applying the law to the facts
of the case. See Glover v. West, 185 F.3d 1328, 1333 (Fed.
Cir. 1999) (concluding that there was no jurisdiction to
review the Veterans Court’s determination that there was
no breach of the duty to assist); Tucker v. Shinseki, 484 F.
App’x 525, 528 (Fed. Cir. 2012) (finding no jurisdiction to
review the determination that “the duty to assist was
satisfied” because it involved the “mere application of
controlling case law to the relevant facts”); see also Keel v.
Nicholson, 241 F. App’x 702, 705 (Fed. Cir. 2007) (Argu-
ments “that medical records existed but were not obtained
by the VA . . . involve challenges to factual matters that
we cannot review.”).
CONCLUSION
Mr. Buckner’s arguments on appeal do not raise any
constitutional issues and merely challenge factual deter-
minations or the application of the law to the facts of his
case. Because we lack jurisdiction to review the Veterans
Court’s conclusions challenged on appeal, Mr. Buckner’s
appeal is dismissed.
DISMISSED