Stevens v. Dept. Of Veterans Affairs

NOTE: This disposition is non-precedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD D. STEVENS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7051
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 09-0542, Judge Lawrence B.
Hagel.
_________________________
Decided: June 17, 2011
_________________________
RICHARD D. STEVENS, of Harrisburg, Pennsylvania,
pro se.
DANIEL B. VOLK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
STEVENS v. DVA 2
F. HOCKEY, JR., Assistant Director. Of counsel on the
brief was MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel.
__________________________
Before RADER, PROST, and O’MALLEY, Circuit Judges.
PER CURIAM.
Richard D. Stevens (“Mr. Stevens”), pro se, appeals
from a decision of the Court of Appeals for Veterans
Claims (“Veterans Court”) affirming the Board of Veter-
ans’ Appeals (“Board’s”) decision denying Mr. Stevens’
service connection for his knee injury. Because Mr.
Stevens raises only factual contentions, we dismiss for
lack of jurisdiction.
BACKGROUND
Mr. Stevens served in the United States Army from
December of 1953 to December of 1957. Mr. Stevens
suffers from “mild to moderate arthritis” in both knees.
In March of 2004, Mr. Stevens filed a claim for benefits
with the Department of Veterans Affairs (“VA”) alleging a
service connection for an injury to his right knee. Mr.
Stevens alleged that he injured his right knee in 1956
when stationed in Alaska. According to Mr. Stevens, he
was working on a telephone pole when a “bull moose
violently shook the pole” causing him to fall to the ground
and injure his right knee. Mr. Stevens alleges that after
the fall he was examined at the local hospital and that his
“knee was wrapped up.”
The record in this case is limited, in part because the
1973 fire at the National Personnel Records Center in St.
Louis, Missouri apparently destroyed Mr. Stevens’ service
medical records, save for his separation examination. Mr.
Stevens’ separation examination noted scars on his fore-
3 STEVENS v. DVA
head and knee, and stated that his lower extremities were
normal upon clinical evaluation. According to a report
from an outpatient visit to the VA in November of 2000,
Mr. Stevens stated he received a laceration on his right
knee at the age of nine. He also reported that he had not
been injured or hospitalized during his military service.
The VA Regional Office denied Mr. Stevens’ claim,
concluding that the evidence did not demonstrate a ser-
vice connection to his knee injury. Following an appeal,
the Board affirmed, concluding that “[t]he preponderance
of the evidence [was] against” Mr. Stevens’ claim. The
Veterans Court affirmed, finding that the Board’s deter-
mination was not clearly erroneous. The Veterans Court
also found that the VA had satisfied its “heightened” duty
to assist Mr. Stevens’ with his claim due to the loss of
records in the fire. Addressing Mr. Stevens’ contention
that the record was not an “accurate account” of his
military service, the Veterans Court concluded that there
was no showing of “bad faith or negligence on the part of
[the] VA” in losing the records in the fire. Finally, be-
cause the Veterans Court held that the Board’s weighing
of the evidence was not “clearly erroneous,” the court held
that it could not apply the “benefit of the doubt” rule to
Mr. Stevens’ claim. Mr. Stevens appealed to this court.
DISCUSSION
Our review of Veterans Court decisions is limited by
statute. Under 38 U.S.C. § 7292(a), we may review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
decision.” Unless the appeal presents a constitutional
issue, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
STEVENS v. DVA 4
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2).
Mr. Stevens makes several fact-based arguments in
his informal brief, none of which fall within this court’s
jurisdiction. First, Mr. Stevens contends that he is enti-
tled to “service-connected compensation” because the
nature of his injuries is “consistent” with his claim that he
was injured during an on-duty fall. In other words, Mr.
Stevens contends that the Board’s determination that a
preponderance of the evidence was against a finding of
service connection for the injury was wrong. Whether Mr.
Stevens’ injury is service connected is a question of fact
though, and we do not have jurisdiction to reweigh the
evidence considered by the Board. See Waltzer v. Nichol-
son, 447 F.3d 1378, 1380 (Fed. Cir. 2006) (holding that a
challenge to the proper weight of the evidence is a ques-
tion of fact, outside this court’s jurisdiction). Second, Mr.
Stevens questions whether the limited record can be
considered “an accurate account” of his service in the
military. The question of whether the record is accurate
is also a factual matter, outside the jurisdiction of this
court. See Walters v. Shinseki, 601 F.3d 1274, 1278 (Fed.
Cir. 2010) (holding that a claim that medical records were
falsified was a factual question, outside of the court’s
jurisdiction).
Third, Mr. Stevens “request[s]” that this court apply
the “benefit of the doubt principle” to his appeal. The
“benefit of the doubt” rule is codified at 38 U.S.C.
§ 5107(b) and states that the “the Secretary shall give the
benefit of the doubt to the claimant” only “[w]hen there is
an approximate balance” of evidence on a material issue.
Where, as here, the Board has determined that a “pre-
ponderance of the evidence” is contrary to the veteran’s
claim, § 5107(b) does not apply. Fagan v. Shinseki, 573
F.3d 1282, 1287 (Fed. Cir. 2009) (“[T]he ‘benefit of the
5 STEVENS v. DVA
doubt’ doctrine has ‘no application where the Board
determines that the preponderance of the evidence weighs
against the veteran's claim’ or when the evidence is not in
‘equipoise.’”) (quoting Ortiz v. Principi, 274 F.3d 1361,
1366 (Fed. Cir. 2001)). The Veterans Court held that the
Board’s factual findings were not clearly erroneous and
that therefore the “benefit of the doubt” rule was inappli-
cable. This court does not have jurisdiction to consider
the proper weight of the evidence, and therefore does not
have jurisdiction to consider the application of § 5107(b)
to the facts of a veteran’s claim. Ferguson v. Principi, 273
F.3d 1072, 1076 (Fed. Cir. 2001) (stating that § 5107(b)
was “unambiguous on its face” and that the application of
the statute to the facts of a veteran’s claim is outside this
court’s jurisdiction).
Finally, to the extent Mr. Stevens contends that the
loss of his records in the 1973 fire should result in a
presumption of a service connection for his injury, this
court has previously considered and rejected such an
argument. Cromer v. Nicholson, 455 F.3d 1346, 1351
(Fed. Cir. 2006) (acknowledging the “challenges posed by
the loss of records in the 1973 fire” but concluding that
the difficulties are “not a sufficient basis on which this
court can create a new rule that would alter the process
for benefits claims”).
For the reasons stated above, we dismiss Mr. Stevens’
appeal for a lack of jurisdiction.
COSTS
Each party shall bear its own costs.
DISMISSED