Francis v. McDonough

Case: 22-1530 Document: 31 Page: 1 Filed: 03/10/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE L. FRANCIS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1530
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-358, Judge Amanda L. Mere-
dith.
______________________
Decided: March 10, 2023
______________________
J. BRYAN JONES, III, J B Jones III LLC, Lafayette, LA,
for claimant-appellant.
NATHANAEL YALE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; BRIAN D. GRIFFIN, SAMANTHA ANN SYVERSON,
Case: 22-1530 Document: 31 Page: 2 Filed: 03/10/2023
2 FRANCIS v. MCDONOUGH
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before LOURIE, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
George L. Francis appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) affirming a decision of the Board of Vet-
erans’ Appeals (“the Board”) that denied Francis’s supple-
mental claim of service connection for prostate cancer
based on exposure to herbicides while on temporary duty
in Thailand. Francis v. McDonough, No. 21-0358, 2021 WL
5903366 (Vet. App. Dec. 14, 2021) (“Decision”). For the rea-
sons detailed below, we dismiss Francis’s appeal for lack of
jurisdiction.
BACKGROUND
Francis served on active duty from January 1963 to
January 1967. For a portion of that time, he was assigned
to an air base in Japan. In January 2007, Francis filed a
claim with the United States Department of Veterans Af-
fairs (“VA”) seeking service connection for a prostate ail-
ment, contending that he had been exposed to herbicides in
Vietnam, Japan, and Thailand while guarding buildings
and aircraft that contained herbicides. In July 2007, Fran-
cis further asserted that he had been on temporary duty to
Vietnam and Don Muang Air Base in Thailand, where
herbicides were stored. The VA regional office (“RO”) sub-
sequently denied service connection for Francis’s prostate
claim.
Consistent with that decision, the VA received a letter
from the National Personnel Records Center (“NPRC”) ad-
vising that it could not verify Francis’s temporary duty in
Thailand and Vietnam. Francis then submitted a letter
stating that while stationed in Japan, he had been
Case: 22-1530 Document: 31 Page: 3 Filed: 03/10/2023
FRANCIS v. MCDONOUGH 3
redirected to Don Muang Air Base to participate in an op-
eration called Air Boon Choo, and that he had a layover in
Vietnam for several days. In March 2020, Francis filed a
supplemental claim for a prostate ailment, and following a
VA examination, he was diagnosed with prostate cancer.
In April 2020, the Joint Services Records Research Center
(“JSRRC”) reported that there was no documentation that
Francis or any personnel assigned to his squadron had
temporary duty at Don Muang Air Base. The RO subse-
quently denied compensation for Francis’s prostate cancer.
Francis then appealed to the Board.
The Board denied Francis’s claim for service connection
for prostate cancer. It recognized Francis’s contentions
that he had been exposed to herbicides while serving in
various countries, including Thailand, but, after reviewing
the record evidence, the Board determined that the evi-
dence did not show that Francis was exposed to herbicide
agents in service. With respect to his purported temporary
duty in Thailand, the Board found that during the relevant
time period, the reports of his unit did not identify any tem-
porary duty assignments, and that the histories addressed
in the JSRRC report did not identify that he or anyone from
his squadron was sent to Don Muang Air Base. The Board
concluded that the JSRRC and the NPRC reports were the
most probative and persuasive evidence of the circum-
stances of Francis’s active service, as they were from offi-
cial sources, and the evidence of record did not demonstrate
service in Thailand or otherwise establish exposure to
herbicides. Francis then appealed to the Veterans Court.
The Veterans Court affirmed the Board’s decision. In
reaching its holding, the court determined that the Board
did not clearly err when it denied service connection based
on herbicide exposure, instead finding Francis’s argument
to focus primarily on “the weight the Board afforded the
evidence,” an insufficient basis for clear error. Decision at
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4 FRANCIS v. MCDONOUGH
*3. Francis timely appealed the Veterans Court decision to
this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review the validity of a decision
with respect to a rule of law or interpretation of a statute
or regulation that was relied upon by the Veterans Court
in making its decision. 38 U.S.C. § 7292(a). However, ex-
cept with respect to constitutional issues, we may not re-
view challenges to factual determinations or challenges to
the application of a law or regulation to the facts of a case.
38 U.S.C. § 7292(d)(2).
In reviewing a Veterans Court decision, we decide “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions,” and set aside any inter-
pretation thereof “other than a determination as to a
factual matter” relied upon by the Veterans Court that we
find to be: “(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in
excess of statutory jurisdiction, authority, limitations, or in
violation of a statutory right; or (D) without observance of
procedure required by law.” 38 U.S.C. § 7292(d). We re-
view questions of statutory and regulatory interpretation
de novo. Mayfield v. Nicholson, 499 F.3d 1317, 1321 (Fed.
Cir. 2007) (citing Prenzler v. Derwinski, 928 F.2d 392, 393
(Fed. Cir. 1991)).
Francis argues that the Board erred in finding that
there was no evidence from the JSRRC that Francis or any
member of his unit was sent to Don Muang Air Base in
Thailand. He notes that the JSRRC acknowledged that his
unit participated in Air Boon Choo, a joint military exercise
conducted at Don Muang Air Base. Francis adds that alt-
hough the JSRRC did not specifically mention his unit be-
ing present in Thailand, it also did not specifically exclude
it and that the Board should have given him the benefit of
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FRANCIS v. MCDONOUGH 5
the doubt under 38 U.S.C. § 5107(b) instead of improperly
applying a higher standard of proof. Lastly, Francis
acknowledges that although we typically lack jurisdiction
to address the application of law to the facts of a Veterans
Court case, Bailey v. Principi allows us to address the ap-
plication of law when the material facts are not in dispute
and the adoption of a legal standard would dictate the out-
come of a case. 351 F.3d 1381, 1384 (Fed. Cir. 2003).
The government responds that we lack jurisdiction to
hear this appeal because the Veterans Court did not inter-
pret any statute or regulation but instead applied estab-
lished law to the facts. Specifically, the government
asserts that reweighing or reconsideration of evidence is
outside the scope of our jurisdiction. Regarding Francis’s
benefit of the doubt argument, the government argues that
application of a statute to the particular facts of a case is
generally outside of our jurisdiction.
We agree with the government. We lack jurisdiction to
entertain Francis’s appeal, which consists of challenges to
the Veterans Court’s review of the Board’s factual determi-
nations and its application of law to particular facts. The
heart of Francis’s appeal involves a challenge to a factual
finding—whether Francis served in Thailand—to support
his claim to herbicide exposure. The Board found that he
had no service in Thailand and the Veterans Court found
no clear error in that finding. Reviewing that evidentiary
finding is outside of our jurisdiction.
Francis’s invocation of the benefit of the doubt rule fails
to provide us with jurisdiction to entertain this appeal. Ap-
plication of the benefit of the doubt rule to the facts of a
particular case is outside of our jurisdiction, and Francis
cannot rely on the limited jurisdictional exception articu-
lated in cases such as Bailey v. Principi because the mate-
rial facts of his service in Thailand are not undisputed. 351
F.3d at 1384 (explaining that this court may review the ap-
plication of law to facts where “the material facts are not
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6 FRANCIS v. MCDONOUGH
in dispute and the adoption of a particular legal standard
would dictate the outcome”).
CONCLUSION
We have considered Francis’s remaining arguments,
but we find them unpersuasive. For the foregoing reasons,
we dismiss his appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.