Joseph Whimple v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH E. WHIMPLE,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7055
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-0230, Judge John J. Farley,
III.
______________________
Decided: March 28, 2013
______________________
GEORGE E. QUILLIN, Foley & Lardner, LLP, of Wash-
ington, DC, for claimant-appellant. With him on the brief
was MORGAN J. WEST.
L. MISHA PREHEIM, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC. With him on the brief were
2 JOSEPH WHIMPLE v. SHINSEKI
STUART F. DELERY, Acting Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and TODD M. HUGHES,
Deputy Director. Of counsel on the brief were MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel, and
CHRISTA A. SHRIBER, Attorney, United States Department
of Veterans Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, LOURIE, and O'MALLEY,
Circuit Judges.
PER CURIAM.
The United States Court of Appeals for Veteran
Claims (Veterans Court) affirmed the decision of the
Board of Veterans’ Appeals (Board) that Joseph E. Whim-
ple was not entitled to a compensable disability rating for
his chronic low back pain. Because Whimple only pre-
sents issues of fact beyond its statutory jurisdiction, this
court dismisses.
I.
Whimple served on active duty in the Marine Corps
from February 1970 to December 1976. In July 1976,
Whimple complained of low back pain and was diagnosed
with a paraspinatus muscular sprain. In 1977, a year
after he was discharged, Whimple was awarded service
connection for his low back pain but was assigned a
noncompensable rating. This noncompensable rating was
based in part on an April 1977 VA examination showing
that Whimple had normal spinal alignment, as reflected
by x-ray, and full range of motion in his cervical spine, as
shown by medical evaluation. Whimple did not appeal
this decision and it became final.
In 1988, Whimple sustained a post-service injury to
the same area of his lower back while working for his
private employer. He was diagnosed with lumbosacral
JOSEPH WHIMPLE v. SHINSEKI 3
degenerative disc disease, which required corrective
surgery. In 1995, he reinjured his lower back when he
stepped into a hole while carrying his son on his shoul-
ders. His treating doctor at the time noted that Whim-
ple’s history of back pain dated back to 1989, more than
twelve years after his discharge from the Marine Corps.
In 1995, Whimple again underwent back surgery to have
several spinal discs fused.
In January 1997, Whimple requested an increased
disability rating for his low back pain and also requested
a new service connection related to his lumbosacral de-
generative disc disease. In June 1997, these requests
were denied.
In June 2000, Whimple again requested an increased
disability rating for his low back pain, and he also re-
quested to re-open his claim for service connection for
lumbosacral degenerative disc disease. In February 2001,
upon denial of his requests, Whimple appealed the deci-
sion. In May 2007, the Board remanded the claim for his
low back pain in light of newly presented private medical
records. The Board stated its intention “to ensure that
there is a complete record upon which to decide the veter-
an’s claim so that he is afforded every possible considera-
tion.” J.A. 118.
In June 2008, while Whimple’s back pain claim was
still under review, he raised a new claim of entitlement to
service connection for a hip condition. In an August 2009
letter to the Board, Whimple claimed that while in the
Marine Corps, he suffered from a condition called Bi-
lateral OS Actibulle, which is a misplacement of the hips.
Whimple further claimed that a doctor later advised him
that this hip condition “could most certainly cause issues
with the lower back including the disc.” J.A. 33.
In 2009, the Board denied Whimple’s back pain claim,
finding that “the most probative medical opinions (i.e.
those accompanied by a review of the claims file including
4 JOSEPH WHIMPLE v. SHINSEKI
the Veteran’s service treatment records) do not correlate
the current low back pain with in-service injury.” J.A. 24.
The Board also found that “private medical opinions of
record attribute the Veteran’s low back problems to either
an injury occurring in 1988 (twelve years after service)
or/and degenerative disc disease.” Id. Whimple appealed
to the Veterans Court.
Before the Veterans Court, Whimple advanced several
theories of error, none of which are on appeal to this
court. The Veterans Court rejected his appeal. On appeal
to this court, Whimple argues for the first time that his
back pain is “inextricably intertwined” to his hip condi-
tion. Therefore, he argues, the Veterans Court erred by
not postponing judgment on his back pain claim until
after the Board resolved his hip condition claim.
II.
This court’s jurisdiction to review a decision of the
Veterans Court extends to “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). This court may not, unless a constitu-
tional challenge is presented, “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)(2).
Whimple alleges for the first time on appeal that his
back pain is “inextricably intertwined” with his hip condi-
tion, i.e. the two conditions are so intimately connected
that one cannot be properly assessed without considera-
tion of the other. See Harris v. Derwinski, 1 Vet. App.
180, 183 (1991) overruled on other grounds by Tyrues v.
Shinseki, 23 Vet. App. 166 (2009).
JOSEPH WHIMPLE v. SHINSEKI 5
Whimple did not present and the Veterans Court did
not consider this argument. Nonetheless, Whimple
asserts that this court has “rule of law” jurisdiction over
this appeal. This court may assert jurisdiction where “the
decision below regarding a governing rule of law would
have been altered by adopting the position being urged, . .
. even though the issue underlying the stated position was
not ‘relied on’ by the Veterans Court.” Morgan v. Principi,
327 F.3d 1357, 1363 (Fed. Cir. 2003) (ultimately declining
jurisdiction as a prudential matter). Here, Whimple
argues the “governing rule of law” that would have al-
tered the decision below is the inextricably intertwined
doctrine.
Whimple’s argument, however, has a fatal flaw. In
order for this court to accept “rule of law” jurisdiction over
this appeal, it must as a threshold matter determine
whether Whimple’s back pain is indeed inextricably
intertwined with his hip condition, a factual matter this
court cannot consider.
Whimple relies on his 2009 letter to the Board, which
explained that a doctor told him that his hip condition
“could most certainly cause issues with the lower back
including the disc.” Resp. Br. 2. This single hearsay
statement raises a factual matter. In addition, the Board
found as a matter of fact that “the most probative medical
opinions (i.e. those accompanied by a review of the claims
file including the Veteran’s service treatment records) do
not correlate [Whimple’s] current low back pain with in-
service injury.” J.A. 24. The Board also found that “pri-
vate medical opinions of record attribute the Veteran’s
low back problems to either an injury occurring in 1988
(twelve years after service) or/and degenerative disc
disease.” Id. Under 38 U.S.C. § 7292(d)(2), this court
lacks jurisdiction to reconsider these factual determina-
tions.
6 JOSEPH WHIMPLE v. SHINSEKI
Even if section 7292(d)(2) was not a barrier to Whim-
ple’s appeal, this court declines to exercise jurisdiction for
prudential reasons. As in Morgan, the first case to recog-
nize “rule of law” jurisdiction under Congress’s 2002
amendment to 38 U.S.C. § 7292, “this case does not fall
within any of the carefully defined exceptions in which we
should consider an argument not made below.” Morgan,
327 F.3d at 1364. Indeed, there has been no new statute
or change in jurisprudence since the decision by the
Veterans Court; Whimple did not appear pro se but rather
was and still is represented by the same experienced
counsel; and this is not a case in which this court may
decide to apply the correct law to an issue properly before
the court because the inextricably intertwined doctrine
was never considered at all by the Veterans Court. Id.Although this list of exceptions is not exhaustive, this
court declines Whimple’s invitation to look beyond them.
For these reasons, this court dismisses this appeal for
lack of jurisdiction.
DISMISSED