Askew v. Dept. Of Veterans Affairs ( 2012 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
CLIFTON ASKEW,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7010
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-3609, Judge John J.
Farley, III.
__________________________
Decided: April 6, 2012
___________________________
CLIFTON ASKEW, of Cleveland, Ohio, pro se.
SARAH M. BIENKOWSKI, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief was MARTIN F. HOCKEY,
JR., Assistant Director. Of counsel on the brief was
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
ASKEW v. DVA 2
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
PER CURIAM.
Clifton Askew (“Askew”) appeals a U.S. Court of Ap-
peals for Veterans Claims (“Veterans Court”) decision,
Askew v. Shinseki, No. 10-3609, 2011 WL 4490130 (Vet.
App. Sept. 29, 2011). The Veterans Court affirmed a July
2010 Board of Veterans’ Appeals (“Board”) decision, which
held that Askew had not submitted new and material
evidence sufficient to reopen a claim for service connec-
tion for a back disability. We dismiss.
BACKGROUND
Askew entered active duty service in the United
States Marine Corps in April 1978. Askew’s entrance
examination in April 1978 showed a normal spine and
musculoskeletal system. In May 1978, Askew fell while
on duty during training on an obstacle course. A service
medical record (“SMR”) from May 1978 recorded low back
pain lasting for two weeks. Another SMR from May 1978
contained an impression of muscle strain due to trauma
on the obstacle course. X-rays were ordered and revealed
developmental conditions including bilateral spondyloly-
sis, spondylolisthesis of vertebrae L5-S1, and spina bifida
occulta of L5. As a result, Askew was diagnosed with
mechanical low back pain secondary to the developmental
conditions discovered by the x-rays. Due to the develop-
mental conditions, Askew was notified that he was physi-
cally qualified for separation from service. Askew left the
service in June 1978.
In March 1979, Askew filed a claim for entitlement to
service connection for a back disability. In April 1980, a
Department of Veterans Affairs (“VA”) regional office
3 ASKEW v. DVA
(“RO”) denied Askew’s claim after determining that
Askew’s back pain was secondary to the diagnosed devel-
opmental conditions. The RO explained that the spondy-
lolysis, spondylolisthesis, and spina bifida occulta were
developmental abnormalities, and as such, could not be
considered service-connected disabilities. Askew did not
appeal the RO’s April 1980 decision.
In July 2005, Askew filed an application to reopen his
claim for entitlement to service connection for his back
disability. Askew submitted both private and VA medical
records indicating that he had a current back disability.
In February 2006, the RO found that no new and material
evidence sufficient to reopen a claim had been submitted.
Askew appealed the RO’s February 2006 decision to
the Board. Askew testified at a May 2010 hearing before
the Board that he had no back problems and no knowl-
edge of any defect in his back prior to his service, and that
his condition was the result of a 30-foot fall on an obstacle
course while on active duty. In a July 2010 decision, the
Board found that Askew had not submitted new and
material evidence sufficient to reopen his claim for enti-
tlement to service connection for his back disability.
Specifically, the Board found that the evidence submitted
since the April 1980 RO decision was cumulative of evi-
dence already in the record and did not raise a reasonable
possibility of substantiating the claim. Askew subse-
quently appealed to the Veterans Court.
The Veterans Court agreed with the Board that the
evidence submitted since the RO’s April 1980 decision,
including Askew’s testimony before the Board in May
2010, was cumulative of prior evidence in the record. The
Veterans Court noted that the Board had erroneously
stated that laypersons, such as Askew, were categorically
incompetent to testify on a matter requiring medical
ASKEW v. DVA 4
knowledge. The Veterans Court explained that before
excluding lay testimony, the Board must first determine
whether the disability is the type for which lay evidence is
competent. However, the Veterans Court found this error
not to be prejudicial because the Board’s ultimate decision
declining to reopen Askew’s claim was based on the fact
that Askew’s new evidence, including his May 2010
testimony before the Board, was cumulative of evidence
already in the record at the time of the RO’s April 1980
decision. Thus, the Veterans Court affirmed the Board’s
decision denying Askew’s application to reopen his claim.
Askew timely appealed to this court.
DISCUSSION
Under 38 U.S.C. § 7292(c), our jurisdiction to review
Veterans Court decisions is limited to “challenge[s] to the
validity of any statute or regulation or any interpretation
thereof.” We 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” unless the appeal
“presents a constitutional issue.” Id. § 7292(d)(2); see
Guillory v. Shinseki, 603 F.3d 981, 986 (Fed. Cir. 2010).
Askew claims that his March 1979 claim should be re-
opened because of new and material evidence. See 38
U.S.C. § 5108. VA regulations state that “[n]ew and
material evidence can be neither cumulative nor redun-
dant of the evidence of record . . . and must raise a rea-
sonable possibility of substantiating the claim.” 38 C.F.R.
§ 3.156(a).
Askew does not challenge the validity or interpreta-
tion of the applicable statutes and regulations. Askew
argues that the Board ignored new evidence that he had
submitted with regard to his back condition. The Board’s
determination that the new evidence was cumulative and
immaterial is a factual issue outside the scope of our
5 ASKEW v. DVA
review. See 38 U.S.C. § 7292(d)(2); see also Barnett v.
Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). This court
is without jurisdiction.
COSTS
No costs.