Davis v. Shinseki ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN H. DAVIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7095
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 08-2570, Judge Bruce E.
Kasold.
___________________________
Decided: November 5, 2010
___________________________
JOHN H. DAVIS, California City, California, pro se.
RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
DAVIS v. DVA 2
F. HOCKEY, Assistant Director. Of counsel on the brief
were MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel, KRISTIANA M. BRUGGER, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
John H. Davis appeals from a decision of the Court of
Appeals for Veterans Claims (“the Veterans Court”),
which affirmed the June 30, 2008, decision of the Board of
Veterans’ Appeals denying Mr. Davis’s claim for disability
compensation. We dismiss the appeal for lack of jurisdic-
tion.
BACKGROUND
Mr. Davis served in the United States Marine Corps
from December 1968 until May 1970 when he was dis-
charged as being unfit for service due to flat feet, or pes
plannus. His condition was diagnosed on December 19,
1968. Military clinicians who saw Mr. Davis in 1969
noted that he had a long history of foot trouble and had to
give up basketball in high school and college because of
his foot problems. The service Medical Board recom-
mended that he be discharged due to his condition in May
1970.
In 1974, Mr. Davis filed a claim for service connection,
contending that his “pre-existing foot condition was
aggravated by his active military service.” A regional
office of the Department of Veterans Affairs (“DVA”)
denied his claim in August 1974. Mr. Davis unsuccess-
fully sought to reopen his claim for service connection
several times between 1974 and 1994. In 2007, the Board
3 DAVIS v. DVA
reopened his claim for service connection because Mr.
Davis submitted new and material evidence, specifically a
statement signed by his sisters declaring that he was
never forced to leave a basketball team in high school or
college because of a foot disability. After reopening the
case, the Board remanded it to the regional office for
further consideration.
The regional office reviewed the evidence and denied
service connection. Mr. Davis then appealed to the Board.
After weighing the evidence, the Board placed more
weight on the service department medical board report
than on Mr. Davis’s sisters’ statement. The Board there-
fore upheld the regional office’s decision denying service
connection. Mr. Davis appealed the Board’s decision to
the Veterans Court. The Veterans Court affirmed, hold-
ing that the Board did not clearly err in concluding that
the evidence failed to support a service connection.
II
In his appeal to this court, Mr. Davis focuses on a sin-
gle statement in his medical records that he contends is
false. Because that issue is a pure question of fact, and
because this court lacks jurisdiction to hear appeals on
factual matters except when the appeal presents a consti-
tutional question, we dismiss the appeal.
The jurisdiction of this court to hear appeals from the
Veterans Court is limited by statute. 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 of any statute
or regulation . . . or any interpretation thereof (other than
a determination as to a factual matter) that was relied on
by the [Veterans Court] in making the decision.” Section
7292(d)(2) mandates that, except to the extent an appeal
DAVIS v. DVA 4
from the Veterans Court presents a constitutional issue,
this court “may not 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.”
Mr. Davis contends this court has jurisdiction to hear
his appeal on two grounds. First, he contends that the
Board denied him the “benefit of the doubt,” as required
under 38 U.S.C. § 5107(b). Section 5107(b) requires the
Board to give a claimant the “benefit of the doubt” when
there is “an approximate balance of positive and negative
evidence regarding any [material issue].” The Board,
however, did not find there to be an approximate balance
of positive and negative evidence in this case. Instead,
the Board weighed Mr. Davis’s sisters’ statement that Mr.
Davis never stopped playing basketball due to foot prob-
lems against his medical records, which noted several
times that he stopped playing basketball in high school
and college due to foot problems. After weighing the
evidence, the Board found that the preponderance of the
evidence was against Mr. Davis’s claim. Because the
“benefit of the doubt” doctrine applies only when the
evidence is approximately balanced, it has no application
when the Board determines that the preponderance of the
evidence weighs against the veteran’s claim. Fagan v.
Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).
Mr. Davis next contends that he was deprived of vet-
erans benefits without due process. He cites this court’s
decision in Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir.
2009), for the proposition that a benefits decision that is
based on altered records deprives the claimant of due
process. The claimant in Cushman was denied benefits
following hearings that were based on altered medical
records. Id. at 1293. He did not learn of the altered
medical records until years later, when he challenged the
5 DAVIS v. DVA
earlier hearings on due process grounds. Id. at 1294. The
government did not dispute that documents used in the
hearings were altered; instead, the government argued
that relief could not be granted because the hearing
system was generally fair, even if it was not fair to the
claimant in the instance under review. This court held
that the altered documents, which were the only medical
evidence in the prior hearings, deprived the claimant of
his constitutional right to a fair hearing. Accordingly, we
vacated the adverse judgment and remanded for a de novo
hearing. Id. at 1300.
In Cushman, the acknowledged use of altered docu-
ments in the claimant’s prior hearing was held to violate
due process. In this case, there is no basis for concluding
that the medical records in question are false. The state-
ment by Mr. Davis’s sisters that he was not forced to stop
playing basketball because of his foot problems does not
render the medical records false; it merely presents a
dispute of fact that the Board was required to resolve.
The Board’s decision to place more reliance upon the
medical records because they were made for purposes of
diagnosis and treatment, while the sisters’ statement was
made in support of their brother’s application for benefits,
does not violate due process. Mr. Davis had the opportu-
nity to prove that the statements in his medical records
were false, which is all due process requires in this con-
text. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(noting the fundamental due process requirement of a
meaningful opportunity to be heard). Mr. Davis’s conten-
tion that the Board’s decision relied on a falsehood thus
does not present a constitutional issue; instead, it only
presents a factual issue, which we lack the jurisdiction to
hear. We therefore dismiss the appeal.
No costs.
DAVIS v. DVA 6
DISMISSED