Emma D'Angelo v. Shinseki ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EMMA D’ANGELO,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7145
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1548, Judge Lawrence B.
Hagel.
______________________
Decided: May 13, 2013
______________________
EMMA D’ANGELO, of Santa Clarita, California, pro se.
K. ELIZABETH WITWER, 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,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and TODD M. HUGHES, Deputy Director. Of
2 EMMA D’ANGELO v. SHINSEKI
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and CLEVELAND KARREN,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
PER CURIAM.
Emma D’Angelo, the wife of a deceased veteran,
appeals from a May 25, 2012, decision of the Court of
Appeals for Veterans Claims (“Veterans Court”). See
D’Angelo v. Shinseki, No. 11-1548 (Vet. App. May 25,
2012). This decision affirmed a decision of the Board of
Veterans’ Appeals (“the Board”) denying Ms. D’Angelo’s
claim for dependency and indemnity compensation
(“DIC”). We dismiss the appeal for lack of jurisdiction.
BACKGROUND
Ms. D’Angelo is the widow of veteran David J.
D’Angelo, who served on active duty in the U.S. Marine
Corps from March 16, 1966, to December 19, 1968. His
time in the military included service in Vietnam, and
while in Vietnam, Mr. D’Angelo was presumptively ex-
posed to herbicides, including Agent Orange. See 38
U.S.C. § 1116(f). Despite this presumed exposure, none of
Mr. D’Angelo’s in-service medical records contain com-
plaints of or treatment for any respiratory conditions, and
his lungs and chest were evaluated as normal upon his
separation from service in an examination conducted on
December 18, 1968.
Nonetheless, several years after Mr. D’Angelo left
service, in May 1973, a private physician diagnosed Mr.
D’Angelo with sarcoidosis, a respiratory condition. This
doctor opined that the condition had its onset in 1972. Mr.
D’Angelo applied for VA benefits for that condition several
years later, in 1990, but the Veterans Affairs (“VA”)
EMMA D'ANGELO v. SHINSEKI 3
regional office denied the claim in December 1990. Mr.
D’Angelo subsequently died in February 1991, and his
listed cause of death was “massive hemoptysis” resulting
from respiratory conditions including bronchiectasis and
sarcoidosis. D’Angelo, No. 11-1548, slip op. at 2 (Vet. App.
May 25, 2012). 1
Ms. D’Angelo then sought DIC benefits as a result of
her husband’s death. She filed a claim for DIC benefits in
1992, but the claim was denied by the VA regional office
in March 1994 and by the Board in January 1997. No
further appeal was taken, and the decision of the Board
became final.
In 2009, the Board reopened Ms. D’Angelo’s claim
based on new and material evidence—an opinion she
submitted from another private physician that noted the
presence of “nonspecific” respiratory symptoms as early as
March 1970. Id. (quotation marks omitted). This opinion
explained, however, that despite the “potential temporal
relationship” between Mr. D’Angelo’s presumed herbicide
exposure and his respiratory symptoms, he was not able
to “make any definitive decisions about whether or not the
[presumed] Agent Orange exposure caused [Mr.
D’Angelo’s] sarcoidosis.” Id. (quotation marks omitted).
After reopening the claim, the Board considered
additional evidence. First, it considered an opinion from a
VA physician, dated June 2009, which concluded that it
was “less likely than not . . . that Mr. D’Angelo’s sarcoido-
sis was present during his active military service or
during the one-year period following his discharge from
service because [(1)] there were no records of in-service
treatment for a respiratory condition and [(2)] a Septem-
1 “Hemoptysis” refers to the “expectoration of blood-
stained sputum.” See id., slip op. at 2 n.2 (quotation
marks omitted).
4 EMMA D’ANGELO v. SHINSEKI
ber 1972 chest x-ray revealed no [sarcoidosis].” Id., slip
op. at 2-3 (quotation marks omitted). The Board then
sought clarification of this opinion, and the same physi-
cian opined in August 2010 that “Mr. D’Angelo’s sarcoido-
sis was not causally related to [his] military service,
including . . . putative exposure to Agent Orange or other
herbicidal concoctions used in [southeast] Asia[,] because
Agent Orange exposure is not known or suspected of
causing sarcoidosis or bronchiectasis.” Id., slip op. at 3
(quotation marks omitted). Second, the Board considered
another document submitted by Ms. D’Angelo—a letter
from her husband’s treating physician, which noted that
Mr. D’Angelo had developed respiratory symptoms by
November 1970, which was within two years of his Vi-
etnam tour. The letter opined that even though “a connec-
tion between sarcoidosis and Agent Orange [exposure] has
never been absolutely validated, one cannot ignore the
temporal relationship of pulmonary symptoms onsets [sic]
within a few years after exposure.” Id. (quotation marks
omitted). In March 2011, the Board considered this and
other information in denying Ms. D’Angelo’s claim for DIC
benefits.
Ms. D’Angelo appealed to the Veterans Court. The
court held that, although Ms. D’Angelo attempted to raise
a claim of clear and unmistakable error (“CUE”) on ap-
peal, Ms. D’Angelo had not properly raised a CUE claim
because she did not “alleg[e] any specific error or identi-
fy[] which [previous] decision she wishe[d] to collaterally
attack.” Id. Regarding the merits of the Board’s decision,
the Veterans Court held that Ms. D’Angelo had not shown
that the Board’s denial of DIC benefits was clearly erro-
neous. The Court first affirmed the Board’s finding that
Ms. D’Angelo’s husband was not entitled to presumptive
service connection under 38 C.F.R. § 3.307(a)(3), which
grants service connection where a chronic condition arises
to a degree of 10 percent or more within one year of
discharge from service. The Veterans Court did not find
EMMA D'ANGELO v. SHINSEKI 5
error in the Board’s finding, primarily relying on the VA
physician’s opinion, “that there was no evidence of record
demonstrating that Mr. D’Angelo’s sarcoidosis manifested
to a compensable degree within one year of his December
19, 1968, separation from service.” Id., slip op. at 5.
Though Ms. D’Angelo argued that the Board had failed to
consider a December 1, 1969, medical record allegedly
showing manifestation during the one-year period, 2 the
Veterans Court concluded that this “medical record . . .
does not contain any respiratory complaints; rather, it
refers only to difficulty sleeping.” Id., slip op. at 4. The
Court therefore concluded that Ms. D’Angelo had “failed
to carry her burden of demonstrating that [this] medical
record was relevant and potentially favorable to her
claim, such that the Board was required to consider and
discuss it.” Id. Second, the Veterans Court also affirmed
the Board’s finding that there was no presumptive service
connection under 38 C.F.R. § 3.307(a)(6) because sar-
coidosis is not a specifically enumerated disease that
entitles a veteran exposed to herbicides to a presumption
of service connection. See 38 C.F.R. § 3.309(e).
Finally, on the issue of direct service connection, as
opposed to presumptive service connection, the Veterans
Court concluded that the Board did not err in crediting
opinions from the VA physician over the contrary opinion
from Mr. D’Angelo’s treating physician because the opin-
ions of Mr. D’Angelo’s physician were “speculative” as
opposed to the “unequivocal[]” opinions of the VA doctor.
D’Angelo, No. 11-1548, slip op. at 6 (Vet. App. May 25,
2012). The court also concluded that the Board had pro-
vided an adequate statement of reasons and basis for its
decision. Ms. D’Angelo appeals.
2 The opinion identifies the record as a December 1,
1968, medical record, but the government’s briefs and
evidence submitted by Ms. D’Angelo make clear that this
referred to a December 1, 1969, medical record.
6 EMMA D’ANGELO v. SHINSEKI
DISCUSSION
Our cases establish that “[o]ur jurisdiction to review
decisions of the Veterans Court is limited by statute.”
Hillyard v. Shinseki, 695 F.3d 1257, 1258 (Fed. Cir. 2012)
(citing Guillory v. Shinseki, 603 F.3d 981, 986 (Fed. Cir.
2010)). Though we have jurisdiction to “decide all relevant
questions of law, including interpreting constitutional and
statutory provisions,” 38 U.S.C. § 7292(d)(1), we lack
jurisdiction over any “challenge to a factual determina-
tion” or “challenge to a law or regulation as applied to the
facts of a particular case” in the absence of a constitution-
al issue, 38 U.S.C. § 7292(d)(1)(A); see Hillyard, 695 F.3d
at 1258. Here, Ms. D’Angelo raises no non-frivolous legal
or constitutional questions involving the validity or inter-
pretation of a statute. In essence, Ms. D’Angelo’s appeal is
an attempt to relitigate factual issues that the Board and
Veterans Court resolved against her. Accordingly, Ms.
D’Angelo’s appeal must be dismissed.
DISMISSED
COSTS
No costs.