Mattress v. Dept. Of Veterans Affairs

NOTE: This disposition is non-precedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PETER L. MATTRESS, SR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7068
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 09-3860, Judge Donald L. Ivers.
___________________________
Decided: June 9, 2011
___________________________
PETER L. MATTRESS, SR., of Cincinnati, Ohio, pro se.
SARAH A. MURRAY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, Assistant Director. Of counsel on the brief
were DAVID J. BARRANS, Deputy Assistant General Coun-
MATTRESS v. DVA 2
sel, and CHRISTA A. SHRIBER, Staff Attorney, United
States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before LOURIE, GAJARSA, and DYK, Circuit Judges.
PER CURIAM.
Peter Mattress appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the Board of Veterans’ Appeals’
(“Board”) denial of his claim for service connection for a
lower-back disorder. Mattress v. Shinseki, No. 09-3860,
2010 WL 5080074, at *1 (Vet. App. 2010). Because Mr.
Mattress challenges only factual determinations, we
dismiss for lack of jurisdiction.
BACKGROUND
Mr. Mattress served on active duty in the United
States Army from March 1984 to October 1988. Mr.
Mattress’ service medical records indicate that he was
seen in May 1984 with complaints of back pain, but had
no history of trauma. During an in-service physical in
June 1985, Mr. Mattress denied having any recurrent
back pain, and his spine was noted as normal. In August
and September 1986, Mr. Mattress complained of neck
pain that he said had begun in 1984, and he was diag-
nosed with acute recurrent cervical muscle spasms. In
November 1987, Mr. Mattress was also diagnosed with a
lumbar muscle strain.
At a Department of Veterans Affairs (“VA”) medical
examination in March 1989, Mr. Mattress reported that
he heard something “snap” while doing pushups in the
service and was diagnosed with fibromyositis in the left
trapezius muscle. Resp’t’s App. 16. In June 1989, a VA
3 MATTRESS v. DVA
Regional Office (“RO”) granted service connection for Mr.
Mattress’ neck disability and assigned the disability a
noncompensable rating.
In September 2000, Mr. Mattress was treated at a VA
urgent care center for pain in his lower back and an
inability to support weight on his right leg after picking
up a box of books at work. In October 2000, Mr. Mattress
reported the same complaints, and again said that the
pain began after he lifted a box of books. During treat-
ment in October 2000, Mr. Mattress said he had not
previously had a lower back disorder. Mr. Mattress was
treated at a VA medical center between February 2002
and January 2003 for lower back and right leg pain.
Magnetic resonance imaging tests in February and June
2003 revealed protrusion, dessication, and herniation of
the focal disk in his lumbar spine. The Chief of Neuro-
surgery at the VA medical center concluded that the
workplace injury in September 2000 aggravated Mr.
Mattress’ disk disease. November 2003 records from a
private physician noted that Mr. Mattress injured his
lower back while lifting a box at work. September 2004
records from a private treatment also noted that Mr.
Mattress’ lower back symptoms began as a result of the
September 2000 work injury.
In December 2003, Mr. Mattress filed a claim for ser-
vice connection for a lower back disability. In May 2004,
the RO denied service connection for that claim. Mr.
Mattress appealed the RO’s decision to the Board.
Mr. Mattress was given a spine examination in March
2005. The examiner concluded that his neck disability did
not cause his lower back problem and said there was no
evidence of a lower back disorder in the time between his
military service and the work-related injury in September
2000. Mr. Mattress was given another VA spine examina-
MATTRESS v. DVA 4
tion in October 2006, and the examiner said that Mr.
Mattress’ symptoms at that time were not related to or
caused by his time in military service. The examiner said
that his lower back injury was a normal product of the
aging process and had been aggravated by his September
2000 work-related injury.
In May 2007, Mr. Mattress had a hearing before the
Board where he testified that he believed his lower back
problems were linked to his military service. In August
2007, the Board remanded the claim to the RO for it to be
developed more fully. In July 2009, Mr. Mattress had
another spine examination, and the examiner determined
that Mr. Mattress’ lower back condition was “a degenera-
tive joint disease of the lumbar spine” and was not related
to either his military service or his neck disorder. Mat-
tress, 2010 WL 5080074, at *2.
The Board found that Mr. Mattress was not entitled
to service connection for a lower back disability. The
Board noted that medical opinions from March 2005,
October 2006, and July 2009 indicated that Mr. Mattress’
lower back disorder was related to neither his military
service nor his service-connected spine disability. The
Board also found that there was no evidence that Mr.
Mattress had a lumbar spine injury during service, apart
from the acute lumbar muscle strain he suffered.
The Veterans Court affirmed the decision of the Board
denying service connection for Mr. Mattress’ lower back
disability. Mattress, 2010 WL 5080074, at *4. The
Veterans Court did not substantially address Mr. Mat-
tress’ request for a higher disability rating for his neck
injury. Id. The court found that it did not have jurisdic-
tion over that issue because the matter had not been
previously decided by the Board. Id. Mr. Mattress timely
filed this appeal.
5 MATTRESS v. DVA
STANDARD OF REVIEW
This court’s jurisdiction to review decisions of the
Veterans Court is limited by 38 U.S.C. § 7292. We have
“jurisdiction to review and decide any challenge to the
validity of any statute or regulation or any interpretation
thereof brought under this section, and to interpret con-
stitutional and statutory provisions, to the extent pre-
sented and necessary to a decision.” 38 U.S.C. § 7292(c).
We “may not review (A) a challenge to a factual determi-
nation, or (B) a challenge to a law or regulation as applied
to the facts of a particular case” unless the appeal raises a
constitutional issue. 38 U.S.C. § 7292(d)(2); Amberman v.
Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009).
DISCUSSION
Mr. Mattress raises only factual issues in his appeal.
Mr. Mattress claims that 1) the VA doctor was biased in
his decision finding that Mr. Mattress’ back injury was
not service connected, 2) an increase in the disability
rating for his neck injury is required, and 3) his back
sprain was not just a back sprain but actually a herniated
disk. Pursuant to 38 USC § 7292(d), this court may not
review challenges to factual determinations.
Mr. Mattress first raises the issue of whether the VA
doctor was biased. The credibility of expert medical
opinions is a question of fact. Moberly ex rel. Moberly v.
Sec’y of Health & Human Servs., 592 F.3d 1315, 1326
(Fed. Cir. 2010). Mr. Mattress’ assertion that the VA
doctor was biased raises no constitutional issue or allega-
tion that a law or regulation was misinterpreted. There-
fore, the court does not have jurisdiction over this claim
because it asks the court to consider the factual suffi-
ciency of the evidence.
MATTRESS v. DVA 6
Mr. Mattress also requests an increase in the disabil-
ity rating assigned to his neck injury. This issue was not
decided by the Board, thus the Veterans Court found that
it lacked jurisdiction over this claim. Mattress, 2010 WL
5080074, at *4 (citing Jarrell v. Nicholson, 20 Vet. App.
326, 331 (2006) (en banc)). The Veterans Court did not
interpret any laws or regulations, rather it applied the
law to the facts of the case. Id.; see Ferguson v. Principi,
273 F.3d 1072, 1075-76 (Fed. Cir. 2001). As the disability
rating is a factual determination and was not addressed
on the merits by the Veterans Court, the issue is not
reviewable by this court.
Finally, Mr. Mattress claims that his back injury was
“much more than just a back sprain” and “was the result
of [a] herniated disc.” Pet’s Br. 2. The accuracy of the
findings in medical records is a question of fact. Waters v.
Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). Mr.
Mattress’ claim that his back injury was more than a
sprain raises no constitutional issue or allegation that
either a law or regulation was wrongly interpreted.
Therefore, the court does not have jurisdiction over this
claim because it asks the court to review a factual deter-
mination.
CONCLUSION
Accordingly, because Mr. Mattress raises only factual
issues in this appeal, which are beyond the scope of this
court’s review, we dismiss for lack of jurisdiction.
No Costs.