Campbell v. Shinseki , 404 F. App'x 493 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WILLIAM L. CAMPBELL, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7123
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 08-1511, Judge William A.
Moorman.
__________________________
Decided: December 9, 2010
__________________________
WILLIAM L. CAMPBELL, JR., New York, New York, pro
se.
SARAH A. MURRAY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
CAMPBELL v. DVA 2
F. HOCKEY, Assistant Director. Of counsel was J. HUNTER
BENNETT, Attorney. Of counsel on the brief was MICHAEL
J. TIMINSKI, Deputy Assistant General Counsel, United
States Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, BRYSON, and LINN, Circuit Judges.
PER CURIAM.
William L. Campbell (“Campbell”) appeals from the
decision of the United States Court of Appeals for Veter-
ans Claims (“the Veterans Court”) affirming a decision of
the Board of Veterans’ Appeals (“the Board”) denying him
entitlement to an effective date earlier than September 7,
2002, for a right shoulder disability with bursitis. Camp-
bell v. Shinseki, No. 08-1511 (Vet. App. June 30, 2010).
Because Campbell appeals only factual determinations
and the application of law to the facts of his case, this
court lacks jurisdiction to consider his claims and dis-
misses the appeal.
BACKGROUND
Campbell served in the United States Army from
January 1968 to December 1969 and from September
1972 to May 1979. On May 16, 1979, Campbell filed a
claim for service connection for, among other things,
“Hurt back [in] 1974, and shoulder[.] Re[-]injury back,
knee, and shoulder [in] 1976. Bursitis left shoulder.”
Based on a VA medical examination, the regional office
(“RO”) denied service connection for the left shoulder
disability in October 1979. Campbell submitted a notice
of disagreement.
In September 2002, Campbell filed a claim for service
connection for both shoulders retroactive to his original
claim filed in May 1979. The RO granted service connec-
3 CAMPBELL v. DVA
tion for bursitis of the left and right shoulders, with each
shoulder receiving a 20 percent disability rating effective
September 7, 2002. In response to a notice of disagree-
ment, the RO granted entitlement to an earlier effective
date for service connection for the left shoulder, but not
the right. Service connection for Campbell’s left shoulder
was made effective May 17, 1979, with a noncompensable
evaluation assigned from that date up until September 7,
2002, when the 20 percent rating was assigned. In deny-
ing an earlier effective date for Campbell’s right shoulder
injury, the RO found no evidence showing that a claim for
service connection for a right shoulder condition was filed
at any time prior to September 2002.
Campbell appealed the RO’s decision to the Board in
March 2006. Regarding Campbell’s right shoulder, the
Board concluded that even upon reading his May 1979
application for benefits and his medical records sympa-
thetically, there was no claim pending prior to September
2002 for which service connection for a right shoulder
disability could have been granted. The Board explained
that Campbell could not collaterally attack the October
1979 decision regarding a right shoulder disability be-
cause that decision, and the May 1979 application, dealt
solely with his left shoulder disability. Accordingly, the
Board denied an effective date prior to September 2002
for the grant of service connection for a right shoulder
disability with bursitis.
Campbell appealed the Board’s decision to the Veter-
ans Court, which affirmed. Campbell v. Shinseki, No. 08-
1511 (Vet. App. June 30, 2010) Campbell appeals from
the judgment of the Veterans Court. This court has
jurisdiction under 38 U.S.C. § 7292(c).
CAMPBELL v. DVA 4
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Under 38 U.S.C. § 7292(a),
this court has jurisdiction over rules of law or the validity
of any statute or regulation, or an interpretation thereof
relied on by the Veterans Court in its decision. In appeals
from the Veterans Court not presenting a constitutional
question, 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.” 38
U.S.C. § 7292(d)(2). In other words, this court generally
has no jurisdiction to review challenges to the Board’s
factual determinations. See, e.g., Johnson v. Derwinski,
949 F.2d 394, 395 (Fed. Cir. 1991).
Campbell raises a number of issues on appeal. Spe-
cifically, Campbell alleges “(1) The [Veterans] Court
accepted incorrect Volume 1 medical records; (2) failed to
take into consideration relevant medical records; (3) did
not meet its duty to assist me; (4) failed to give me the
benefit of the doubt in light of missing and incomplete
records; (5) failed to apply VA Adjudication Manual M21-
1, Part IV, Paragraph 3.09(a); (6) continues to discredit
evidence suggesting [clear and unmistakable error]; (7)
refuses to address the fact that the New York regional
office was found guilty of shredding, destroying, mishan-
dling and losing the benefits claims of veterans.” App. Br.
at 1, 3. This court concludes that all of these issues relate
to factual determinations made by the Board or the
Veterans Court or the application of law to the facts
presented, over which we have no jurisdiction.
Regarding Campbell’s contentions that the Veterans
Court accepted incorrect evidence or failed to consider
relevant medical records, these unsubstantiated chal-
lenges present factual matters outside this court’s juris-
5 CAMPBELL v. DVA
diction. See Newhouse v. Nicholson, 497 F.3d 1298, 1302
(Fed. Cir. 2007) (stating that the VA is presumed to have
considered all evidence of record). Campbell also argues
that the court failed to satisfy its duty to assist. Whether
the VA satisfied its duty to assist is a factual matter
outside this court’s jurisdiction. Glover v. West, 185 F.3d
1328, 1333 (Fed. Cir. 1999). Similarly, whether the VA
properly applied the benefit-of-the-doubt doctrine is a
matter of application of law to fact and is outside this
court’s jurisdiction. See Ferguson v. Principi, 273 F.3d
1072, 1076 (Fed. Cir. 2001). Campbell also contends that
the Veterans Court failed to apply a VA Manual provision
directing VA adjudicators to reasonably infer issues from
the “facts of circumstance of the claim.” App. Br. at 3.
“[T]he interpretation of the contents of a claim for benefits
[is] a factual issue over which we [do] not have jurisdic-
tion.” Ellington v. Peake, 541 F.3d 1364, 1371 (Fed. Cir.
2008). Campbell also contends that the Veterans Court
discredited evidence suggesting clear and unmistakable
error. Campbell’s challenge regards the weighing of the
evidence in his case, a factual matter entirely outside this
court’s jurisdiction. Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000). Campbell’s argument that the Veterans
Court refused to address his assertion regarding the New
York RO is without merit because the Veterans Court in
fact addressed Campbell’s assertion, yet found it “unsup-
ported by the evidence.” Further, whether records were
missing from Campbell’s file also presents a question of
fact outside this court’s jurisdiction.
Finally, while Campbell acknowledges that the Veter-
ans Court did not decide any constitutional issues, App.
Br. at 1, Campbell nonetheless also argues that his “con-
stitutional rights under the Privacy Act were violated as a
result of the New York Harbor VA Medical Center losing
my Volume 1 medical records which contained my per-
CAMPBELL v. DVA 6
sonal and confidential information.” Id. While the Pri-
vacy Act of 1974, 5 U.S.C. § 552a, Public Law No. 93-579,
(Dec. 31, 1974), contains provisions for civil actions in the
district courts, it does not create a constitutional cause of
action. The Veterans Court did not decide any constitu-
tional issues or rely on constitutional principles in finding
Campbell was not entitled to an earlier effective date.
Nor has Campbell shown that the VA violated any of his
constitutional rights. Accordingly, Campbell’s arguments
are constitutional in name only and inadequate to give
this court the jurisdiction it otherwise would not have.
See, e.g., Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed.
Cir. 2007).
Because Campbell’s appeal raises challenges to fac-
tual determinations and the Veterans Court’s application
of laws and regulations to the facts of this case, this court
lacks jurisdiction to review his appeal. Accordingly,
Campbell’s appeal is dismissed.
DISMISSED
COSTS
Each party shall bear its own costs.