McNulty v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD R. MCNULTY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7104
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-4168, Judge Mary J.
Schoelen.
___________________________
Decided: October 25, 2011
___________________________
RICHARD R. MCNULTY, of Richland, Virginia, pro se.
DOUGLAS T. HOFFMAN, Trial Attorney, Commercial
Litigation Branch, United States Department of Justice,
of Washington, DC, for respondent-appellee. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and TODD M. HUGHES,
Deputy Director. Of counsel on the brief were MICHAEL J.
MCNULTY v. DVA 2
TIMINSKI, Deputy Assistant General Counsel, and
THOMAS HERNANDEZ, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC.
__________________________
Before RADER, Chief Judge, MOORE, Circuit Judge, and
AIKEN, District Judge. 1
PER CURIAM.
Richard R. McNulty appeals from the decision of the
United States Court of Appeals for Veterans Claims
(Veterans Court), affirming a decision by the Board of
Veterans’ Appeals (Board) declining to increase or extend
his disability rating for thyroid carcinomas, follicular
adenoma, and chronic lymphocytic thyroiditis (CLT) with
weight gain and metabolic abnormality. McNulty v.
Shinseki, No. 08-4168, 2011 WL 256763 (Ct. Vet. App.
Jan. 27, 2011). We conclude that we lack jurisdiction over
Mr. McNulty’s appeal because it is based on challenges to
factual determinations and to the application of the law to
the facts of his case. The appeal is dismissed.
BACKGROUND
Mr. McNulty claimed service connection for “excessive
weight gain and metabolic abnormality” in 1991. A right
thyroid lobectomy showed he had follicular and papillary
carcinomas and advanced lymphocytic thyroiditis, and he
claimed service connection for those conditions on Decem-
ber 10, 1992. Mr. McNulty was put on the drug Syn-
throid. On January 28, 1993, a mediastinoscopy showed
no metastases. The Regional Office (RO) granted Mr.
McNulty entitlement to service connection for thyroid
1 The Honorable Ann Aiken, Chief Judge, United
States District Court for the District of Oregon, sitting by
designation.
3 MCNULTY v. DVA
carcinoma and CLT with weight gain and metabolic
abnormality, and assigned a staged disability rating of
100% effective as of December 10, 1992 and 10% begin-
ning November 1, 1993. In 2008, after extensive proceed-
ings before the RO and the Board, a Veterans Affairs (VA)
doctor reviewed Mr. McNulty’s file and found that the
1993 mediastinoscopy showed “no evidence of metastatic
thyroid cancer” and that his Synthroid use did not show
recurrence of his cancer.
Mr. McNulty appealed, and the Board found that he
was entitled to a 100% rating for his carcinomas until
January 28, 1994, one year after the mediastinoscopy,
and to a separate 10% rating for follicular adenoma and
CLT with weight gain and metabolic abnormality until
January 28, 1994. The Board also found that after this
date, Mr. McNulty was entitled to a 10% rating for CLT
with weight gain and metabolic abnormality, follicular
adenoma, and residuals of papillary and follicular carci-
nomas. The Veterans Court affirmed. Mr. McNulty now
appeals the rating decision to our court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Guillory v. Shinseki, 603 F.3d
981, 986 (Fed. Cir. 2010). We have jurisdiction over “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
We lack jurisdiction, however, over any “challenge to a
factual determination” or “challenge to a law or regulation
as applied to the facts of a particular case” unless the
challenge presents a constitutional issue. 38 U.S.C.
§ 7292(d)(2).
Mr. McNulty’s appeal raises only factual disputes and
arguments regarding the application of the law to the
facts of his case. Mr. McNulty argues that he received
MCNULTY v. DVA 4
neither notice nor a medical evaluation before cessation of
his 100% disability rating, which he asserts are required
under 38 C.F.R. § 4.119 DC 7914 (1996). 2 The Veterans
Court expressly held, however, that the Board complied
with DC 7914 because the VA doctor’s review of Mr.
McNulty’s file in 2008 met the medical examination
requirement, a factual finding which we cannot review.
Mr. McNulty also challenges the determination that his
thyroid cancer was in remission, arguing that his contin-
ued use of Synthroid is a therapeutic procedure that
justifies a continued 100% rating. Once again, Mr.
McNulty disputes only the factual issue of whether the
medical evidence supports the Board’s findings that he
had not suffered a recurrence of his cancer or metastases
after his January 1993 mediastinoscopy, and that Syn-
throid use does not qualify as a therapeutic procedure.
We have no jurisdiction to review these fact findings. Mr.
McNulty also argues that the Board failed to consider his
testimony regarding his treatment. 3 The Veterans Court
concluded that the Board considered Mr. McNulty’s
testimony, but found that it was outweighed by other
medical evidence, another fact finding we cannot review.
Because Mr. McNulty’s arguments are based solely on
factual disputes or alleged errors in the Veterans Court’s
application of the law to the facts, they fall outside our
jurisdiction. 38 U.S.C. § 7292(d)(2). We have considered
Mr. McNulty’s other arguments on appeal and find that
2 We do not address whether the version of DC 7914
amended in 1996 applies retroactively, but note that even
under this heightened standard the Veterans Court found
as a factual matter that the VA complied with the regula-
tion.
3 While Mr. McNulty mentions due process, he does
not actually raise a constitutional challenge, but rather
disputes how the Board weighed the medical evidence.
5 MCNULTY v. DVA
they are similarly fact-based disagreements over which
we have no jurisdiction.
DISMISSED
COSTS
No costs.