Diamond v. Shulkin

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MORELAND J. DIAMOND,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1781
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4003, Judge William P.
Greene, Jr.
______________________
Decided: July 14, 2017
______________________
MORELAND J. DIAMOND, Glasgow, VA, pro se.
VITO SALVATORE SOLITRO, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., CLAUDIA M. BURKE; Y. KEN LEE, CHRISTOPHER
ADELOYE, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
2 DIAMOND v. SHULKIN
______________________
Before PROST, Chief Judge, NEWMAN, and LINN, Cir-
cuit Judges.
PER CURIAM.
Ms. Moreland J. Diamond (“Diamond”), pro se, ap-
peals from a decision by the United States Court of Ap-
peals for Veterans Claims (“Veterans Court”) remanding
her claim for an increased rating for her service-connected
right knee disability and denying service connection for a
lower back disability, including service connection sec-
ondary to her service-connected right knee disability.
Diamond v. Snyder, No. 15-4003 (Vet. App. Feb. 1, 2017).
For the reasons set forth below, we hold that the Veterans
Court did not err with respect to its denial of secondary
service connection for Diamond’s lower back disability.
We also hold that we lack authority to address the Veter-
ans Court’s remand relating to her right knee disability or
its weighing of the medical evidence before it. The deci-
sion of the Veterans Court is therefore affirmed.
Because we write for the parties, we include only min-
imal background for context.
Diamond served on active duty in the United States
Army from June 1987 to July 1991. She sustained a right
knee injury while playing basketball, to which the De-
partment of Veterans Affairs (“VA”) assigned a 10%
service-connected disability rating in September 1996.
Diamond’s medical records indicate that in March 1988
she complained of back and wrist pain, and reported a fall
on her back.
In November 2008, Diamond sought an increased rat-
ing for her knee injury, and benefits for a lower back
condition. The VA denied her an increased rating, con-
cluded that “there is no current medical evidence of a
DIAMOND v. SHULKIN 3
diagnosis of degenerative disc disease of the back,” and
denied service connection for lower back pain.
In January 2014, the VA provided Diamond with a
medical examination for her lower back. The VA examin-
er stated the issue for examination as follows: “Opinion
request: Secondary service connection – Is the Veteran’s
thoracolumbar disability [(lower back condition)] at least
as likely as not (50 percent or greater probability) proxi-
mately due to or the result of her residuals of right knee
injury.” The examiner concluded that the condition is less
likely than not “proximately due to or the result of the
Veteran’s service connected [right knee] condition,” and
that “Review of the veterna’s [sic] electronic health record,
the C-file and based on today’s examination, no biome-
chanic condition originated from the right knee is present
to cause a lumbar spine condition.” In an April 2014
Addendum, a VA examiner concluded that it was “less
likely as not (less than 50 percent or greater probability)
incurred in or caused by in-service injury/event that
occurred in March 1998,” and that Diamond’s condition
was instead “degenerative arthritis of the lumbar spine[,
which] is a condition of chronic use, aging and a genetic
predisposition to lose fluid in the disc spaces.”
On review, the Board of Veterans Appeals (“BVA”)
agreed and denied both Diamond’s right knee and lower
back claims. The BVA also remanded the assignment of a
separate compensable rating for arthritis of the right
knee. Diamond appealed the claims that were denied to
the Veterans Court. The Veterans Court vacated the
BVA’s denial of a higher rating for Diamond’s right knee
disability because the BVA failed to provide an adequate
statement of reasons or bases for the denial and remand-
ed that issue for reconsideration. The Veterans Court
affirmed the BVA’s denial of Diamond’s lower back claim.
On February 17, 2017, Diamond moved for reconsidera-
tion, arguing that the BVA overlooked or misunderstood
all of the medical evidence relating to her claim for sec-
4 DIAMOND v. SHULKIN
ondary service connection for her lower back disability.
On March 24, 2017, the Veterans Court denied her mo-
tion, concluding that Diamond’s motion merely expressed
disagreement with how the BVA weighed the evidence of
record. Diamond timely appealed.
Diamond raises two arguments in this appeal. She
first argues that the Veterans Court erred by denying “an
increase for service-connected right knee injury” and by
“fail[ing] to consider the daily impact on [her] quality of
life” caused by her service-connected right knee injury
and a secondary injury to her lower back, and by incor-
rectly “stating [that such injuries] did not significantly
limit function ability,” Appellant’s Br. at 1. Diamond
specifically contends that the BVA failed to consider
evidence of her antalgic gait, uneven wear on her left shoe
and other signs of uneven movement caused by the right
knee disability that she associates with her lower back
condition. Second, she argues the propriety of the April
2014 addendum examination relating to her lower back
pain, which she contends incorrectly focused on direct
service connection from a March 1988 fall—a claim she
says she never made—rather than secondary service
connection associated with her service-connected right
knee injury.
This court’s authority to review decisions of the Vet-
erans Court is limited. “Section 7292 of title 38 provides
that we ‘shall decide all relevant questions of law’ arising
from appeals from decisions of the Veterans Court, but,
‘[e]xcept to the extent that an appeal ... presents a consti-
tutional issue, [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.’ 38
U.S.C. § 7292(d)(1), (d)(2).” Sneed v. McDonald, 819 F.3d
1347, 1350–51 (Fed. Cir. 2016).
We conclude that we lack jurisdiction to consider Di-
amond’s first argument. With respect to the denial of an
DIAMOND v. SHULKIN 5
increased rating for Diamond’s knee injury, we have no
jurisdiction because the Veterans Court’s remand of the
BVA’s decision is not a final decision. See Allen v. Princi-
pi, 237 F.3d 1368, 1372 (Fed. Cir. 2001) (“Under our case
law, however, our jurisdiction is limited to the review of
final decisions of the Veterans Court, which usually does
not include remands.”). We also have no jurisdiction to
consider the effect of Diamond’s lower back injury on her
quality of life or ability to function, or whether the VA,
the BVA, and the Veterans Court failed to consider or
properly weigh the evidence Diamond presented to show a
causal connection between Diamond’s lower back condi-
tion and her service-connected knee injury. This includes
the evidence she presented of her antalgic gait, uneven
wear on her left shoe and other signs of uneven move-
ment. These are questions of fact over which this court
lacks the authority to review. See 38 U.S.C. § 7292(d)(2).
The BVA on page 8 of its decision explicitly discussed
the evidence presented as to her antalgic gait, uneven
shoe wear and uneven movement. Diamond’s contention
that this evidence was not considered thus is more accu-
rately a contention that the BVA failed to give it the
weight she believes it deserves. We do not, however, have
the authority to question the BVA’s factual determina-
tions. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed.
Cir. 2010) (“Although [framed] as a challenge to the
Board's failure to consider her evidence, . . . the Board
fully and adequately considered and discussed all the
relevant evidence in the case, . . . . [The] assertion that
the Board did not consider her evidence thus necessarily
was a contention that it did not give that evidence the
weight she believed it should have received. The evalua-
tion and weighing of evidence and the drawing of appro-
priate inferences from it are factual determinations
committed to the discretion of the fact-finder. We lack
jurisdiction to review these determinations.”).
6 DIAMOND v. SHULKIN
Finally, with respect to the propriety of the April 2014
supplemental examination, we discern no error in the
VA’s conducting that examination or the BVA’s treatment
thereof. The examination conducted in January 2014
explicitly addressed Diamond’s assertion of secondary
service connection: “The question to this examiner is
whether the Veteran’s [lower back] disability at least as
likely as not (50 percent or greater probability) proximate-
ly due to or the result of her residuals of right knee inju-
ry.” The examiner concluded that the answer was “no,”
finding specifically that “no biometric condition originated
from the right knee is present to cause a lumbar spine
condition” and “there are no alignment conditions of the
right knee to change posture, ambulation, or strength of
lumbar spine muscles.”
The fact that the VA undertook another examination
in April 2014 and in that examination considered direct
service connection does not provide a legal basis to over-
turn the Veterans Court’s decision addressing secondary
service connection. The consideration of direct service
connection is consistent with the BVA’s duty to liberally
consider all theories of service connection and did not
override or negate the BVAs consideration of the second-
ary service connection. See DeLisio v. Shinseki, 25 Vet.
App. 45, 53 (2011) (“[U]pon the filing of a claim for bene-
fits, the Secretary generally must investigate the reason-
ably apparent and potential causes of the veteran's
condition and theories of service connection that are
reasonably raised by the record or raised by a sympathet-
ic reading of the claimant's filing.”). Nothing in the April
2014 examination contradicts or otherwise questions the
conclusions reached in the January 2014 examination.
Both examinations reached the consistent conclusion that
Diamond’s lower back disability was the result of degen-
erative arthritis and not direct or secondary service
connection.
DIAMOND v. SHULKIN 7
For the foregoing reasons, the Veterans Court’s denial
of Diamond’s claim for secondary service connection for
her lower back condition is affirmed.
COSTS
The parties shall each bear their own costs.
AFFIRMED