Swearingen v. McDonald

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBIN L. SWEARINGEN,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7018
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2491, Judge Coral Wong
Pietsch.
______________________
Decided: May 12, 2015
______________________
ROBIN L. SWEARINGEN, Covington, IN, pro se.
SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JOYCE R. BRANDA, JEANNE E. DAVIDSON, SCOTT D. AUSTIN;
MARTIN JAMES SENDEK, Y. KEN LEE, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
2 SWEARINGEN v. MCDONALD
______________________
Before REYNA, SCHALL, and HUGHES, Circuit Judges.
PER CURIAM.
Robin Swearingen contests the denial of veterans’
benefits for Parkinson’s disease based on exposure to
ionizing radiation from the Chernobyl nuclear disaster.
Because Mr. Swearingen has not raised any issues within
our limited jurisdiction, we must dismiss his appeal.
I
Mr. Swearingen served on active duty in the U.S. Air
Force from 1983 to 1988. In November 2009,
Mr. Swearingen sought veterans’ benefits for Parkinson’s
disease as a result of radiation exposure while he was
stationed in Germany. Specifically, he alleged exposure
to the Chernobyl nuclear disaster from April 24, 1986 to
October 31, 1986. He also stated that he had been treated
for Parkinson’s disease as of December 2001 at a Depart-
ment of Veterans Affairs medical center.
In January 2010, after receiving Mr. Swearingen’s
medical records and a letter from him stating that he had
no other information to submit in support of his claim, a
Veterans Affairs regional office denied his claim. Follow-
ing the submission of a Notice of Disagreement and
studies purporting to show a relationship between radia-
tion and Parkinson’s disease, the regional office issued a
decision continuing to deny his claim.
In May 2013, the Board of Veterans’ Appeals issued a
decision affirming the denial of Mr. Swearingen’s claim.
The Board found that the VA complied with its duty to
assist Mr. Swearingen by obtaining all pertinent records.
The Board also found that the VA was not required to
provide a medical examination because there was no
competent scientific or medical evidence supporting a
connection between Parkinson’s disease and radiation
SWEARINGEN v. MCDONALD 3
exposure or any indication that Mr. Swearingen’s disabil-
ity was associated with his service. The Board concluded
that the evidence did not establish service connection
based on a theory of exposure to ionizing radiation, a
statutory presumption, or a direct theory.
Mr. Swearingen then appealed to the U.S. Court of
Appeals for Veterans Claims, which affirmed the Board’s
decision. The Veterans Court also found that the VA
satisfied its duty to assist Mr. Swearingen and that the
Board provided adequate reasons and bases for its find-
ings and conclusions. Mr. Swearingen appeals.
II
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 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 interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans] Court in making the
decision.” 38 U.S.C. § 7292(a), (d)(1). But 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,” except to the extent an appeal presents a
constitutional issue. 38 U.S.C. § 7292(d)(2).
The regulations provide that certain “radiogenic dis-
eases” may be service-connected if they become manifest
in a veteran exposed to ionizing radiation. 38 C.F.R.
§§ 3.309(d), 3.311. Parkinson’s disease is not listed as a
“radiogenic disease” in the regulations. Nevertheless, the
VA was required to consider Mr. Swearingen’s claim if he
identified “competent scientific or medical evidence that
the claimed condition is a radiogenic disease.” 38 C.F.R.
§ 3.311(b)(4).
The Board reviewed all of the evidence
Mr. Swearingen submitted, including several articles,
treatises, and blogs, but found that none of the evidence
4 SWEARINGEN v. MCDONALD
provided competent scientific studies or findings associat-
ing Parkinson’s disease with exposure to ionizing radia-
tion. On appeal, Mr. Swearingen requests that we review
the evidence and rule in his favor. See, e.g., Appellant’s
Informal Br. Resp. No. 6. Because the only issue here is
Mr. Swearingen’s disagreement with factual findings and
application of law to fact, we must dismiss the appeal for
lack of jurisdiction.
DISMISSED
No costs.