Beck v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JAMES BECK,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2011-7039
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-3834, Judge Alan G.
Lance, Sr.
_________________________
Decided: September 9, 2011
_________________________
DARLA J. LILLEY, Lilley Law Firm P.L.L.C., of Dain-
gerfield, Texas, for claimant-appellant.
ALLISON KIDD-MILLER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent-appellee. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
BECK v. DVA 2
tor, and KIRK T. MANHARDT, Assistant Director. Of coun-
sel on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and TRACEY P. WARREN, Attorney,
United States Department of Veteran Affairs, of Wash-
ington, DC.
__________________________
Before NEWMAN, O’MALLEY, and REYNA Circuit Judges
PER CURIAM.
James Beck (“Beck”) appeals the decision of the
United States Court of Appeals for Veterans Claims (the
“Veterans Court”) affirming the judgment of the Board of
Veterans Appeals (the “Board”). The Veterans Court
affirmed the Board’s judgment because it concluded that
treatise evidence submitted by Beck was insufficient to
establish a nexus between his back injury and his service,
or undermine the VA medical examiner’s opinion that
Beck’s back injury was not service connected. Beck as-
serts this was error because the Veterans Court: (1)
refused to consider the treatise evidence without a sup-
porting medical opinion; (2) refused to consider the trea-
tise evidence for the purpose of impeaching the medical
examiner’s opinion; and (3) failed to apply the correct
standard for weighing conflicting medical evidence.
Because we conclude that this appeal does not invoke our
jurisdiction under Morgan v. Principi, 327 F.3d 1357 (Fed.
Cir. 2003), or challenge the validity of any statute or
regulation, any interpretations thereof, or raise any
constitutional controversies, we dismiss for lack of juris-
diction.
BACKGROUND
Beck served on active duty in the U.S. Navy from
February 1962 to May 1966. Appendix (“A”) 8. In 1998,
Beck filed a claim for service connection for his back
3 BECK v. DVA
injury. While Beck’s service records and separation
examination make no mention of a back injury, according
to Beck, he injured his back in 1963, while serving aboard
the U.S.S. Kitty Hawk. The injury occurred when Beck
and another sailor were carrying a two-hundred pound
amplifier up a stairwell. Beck testified that, while carry-
ing the amplifier, “he felt something go in his back.” A 34.
Beck indicated that because the injury was painful, he
went to sick call. At sick call, however, he did not see a
doctor and was only given a cursory examination. He was
not prescribed pain medication.
During the remainder of his service, Beck did not re-
ceive additional treatment for his back injury. Beck’s
separation physical, moreover, stated that his spine/other
musculoskeletal was normal, and there was no mention of
any back injury. After discharge, Beck indicated that he
first sought treatment for his back in the late 1960s.
Records relating to this treatment, however, do not exist
because they were destroyed. Accordingly, the earliest
medical records describing his back injury are from the
early 1990s. 1
The first of these medical records, a May 1990 CT
scan, was interpreted by Beck’s doctor as being negative,
with vertebrae, facets and facet joints described as unre-
markable and no evidence of a herniated disc. In 1992,
Beck had another CT scan; his doctor found this scan to
be abnormal. As a result of this abnormal scan, Beck
1 Additionally, Beck submitted a copy of a life in-
surance application form from March 1979. The form
listed the name of a doctor who Beck stated had treated
him for back pain during the 1970s. The form did not,
however, indicate that Beck suffered from back pain.
Indeed, on the form Beck denied having had any illness,
surgical procedure, or treatment by a physician in the
past three years.
BECK v. DVA 4
underwent a laminotomy and disc excision surgery.
On the basis of this record and a letter from Dr.
Robert D. Taylor, Beck sought service connection for his
back injury. The VA regional office (“RO”) denied his
claim. After this initial denial of his claim, Beck submit-
ted two additional pieces of evidence in support of his
claim. The first was a statement from his wife, indicating
that Beck injured his back in service. The second was
letter from Dr. Ira C. Denton, noting that he performed
back surgery on Beck in 1992. Submission of this addi-
tional evidence 2 resulted in an extensive procedural
history, which is not relevant to this appeal. This history
culminated in December 2004 with the Board remanding
the case for, among other things, a medical examination
of Beck.
Beck’s medical examination occurred in June 2007,
and an addendum to the examination was submitted in
December 2007. The examiner concluded that Beck’s
back injury “is less likely as not (less than 50/50 probabil-
ity) caused by or a result of non-treated and non-reported
back injury in 1963.” A 9. Explaining the rational for
this conclusion, the examiner stated:
Veteran’s c-file was carefully reviewed. This ex-
aminer could not find evidence of any low back
complaints between 1962-1966. The separation
exam in 5.3.1966 showed normal spine exam. The
2 In January of 2004, Beck also submitted a letter
written By Dr. Evans, indicating that he had treated Beck
for his back injury since 1998. The letter stated that
Beck’s history of back problems began with his injury
while in service. Dr. Evans concluded that, because Beck
had sustained no other acute injury to his back since his
service, it was therefore as likely as not that Beck’s recur-
rent back pain was the result of his 1963 injury while in
the Navy.
5 BECK v. DVA
CT scan in 5.31.1990 was normal. An abnormal
CT scan was seen in 11/16/1992 which led to a
laminotomy and disc excision. The earliest com-
plaints of low back pain was [sic] documented by
veteran’s claim that he was seen and treated dur-
ing 1972-1973 for low back pain (Dr. Lienke has
no medical records). Even if this was the case,
veteran complained of low back pain 10 years af-
ter the supposed incident. This is too far removed
to be connected to the non-documented injury in
1963, which makes veteran’s current low back
condition less likely to be related to the non-
documented low back injury.
Id. In response to this report, before the Board, Beck
submitted treatise evidence 3 and lay statements in sup-
port of his claim. After considering all of the evidence
before it, the Board concluded that Beck’s back injury was
not service connected.
With respect to the conflicting medical evidence, the
Board assigned greater weight to the examiner’s opinion
than Beck’s private doctors because “it was based on a
review of the veteran’s medical history; whereas there is
no evidence that the veteran’s private doctors ever re-
viewed his service treatment records.” A 38. The Board
placed particular importance on the fact that the exam-
iner emphasized that Beck showed no back disability at
the time of separation while “none of the private opinions
even mentioned the lack of a back disability in service or
the lack of any treatment for a number of years after
service.” Id. The Board concluded that the “failure to
3 According to Beck, the treatise evidence reflected
“that most people with back pain do not seek medical
treatment; back pain is typically recurrent; and the
absence of back pain on any give[n] day does not imply
normal lumbar function.” A 66.
BECK v. DVA 6
address this relevant fact renders the private medical
opinions less credible than the VA examiner’s report.” Id.Regarding the treatises submitted by Beck, the Board
noted that
a medical article or treatise can provide important
support when combined with an opinion of a
medical professional if the medical article or trea-
tise evidence discusses generic relationships with
a degree of certainty such that, under the facts of
a specific case, there is at least plausible causality
based upon objective facts rather than on a un-
substantiated lay medical opinion.
A 38–39 (internal quotations and citation omitted). In
Beck’s case, however, because the treatise evidence sub-
mitted was not accompanied by the opinion of any medical
expert, the Board concluded that the treatise evidence
was insufficient to establish the required nexus between
his back injury and his time in service.
Finally, the Board determined that the various letters
from Beck’s friends and family had minimal probative
value because the letters were not entirely consistent, and
they were written 40 years after the relevant events
occurred. In light of these conclusions, on October 31,
2008, the Board denied Beck’s claim. Beck received notice
of this decision, and he timely appealed to the Veterans
Court.
Before the Veterans Court, Beck argued that the
Board’s rejection of the treatise evidence was contrary to
law because treatise evidence can be considered even if it
is not supported by a medical opinion. Beck asserted that
the Board erred by refusing to consider the treatise evi-
dence for two distinct purposes: (1) to establish an etio-
logical nexus; and (2) to undermine the credibility of the
7 BECK v. DVA
medical examiner’s opinion. In his reply brief, however,
Beck abandoned his arguments with respect to establish-
ing an etiological nexus. Instead, Beck framed the issue
before the Veterans Court as “whether impeachment
evidence in the form of treatise evidence must be sup-
ported by a medical opinion.” A 65 n.5.
After considering the parties’ arguments, the Veter-
ans Court affirmed the Board’s decision. Specifically, the
Veterans Court concluded that the Board did not commit
legal error by refusing to consider the treatise evidence
for the purpose of impeaching the examiner’s opinion. At
the outset, the Veterans Court noted that treatise evi-
dence may be invoked to show a nexus in the absence of a
supporting medical opinion. The Veterans Court high-
lighted that, while the Board seemed to “conflate” the
possible situations in which treatise evidence will and will
not be considered absent a supporting medical opinion,
the Board seemed to mean that Beck’s treatise evidence
was too uncertain to meet the requirements for considera-
tion absent a supporting medical opinion. A 12. Impor-
tantly, the Veterans Court found that the treatise
evidence was “quite general.” A 13. In light of this de-
termination, the Veterans Court concluded that it was
“unclear how this information would impeach the VA
examiner’s competence,” and that Beck had “not met his
burden of demonstrating that the Board erred in finding
the examiner and his opinion competent.” Id.Beck timely appealed this decision.
DISCUSSION
I.
Our review of Veterans Court decisions is limited by
statute. See Yates v. West, 213 F.3d 1372, 1373–74 (Fed.
Cir. 2000). By statute, our jurisdiction over appeals from
BECK v. DVA 8
the Veterans Court is limited to those appeals that chal-
lenge the validity of a decision of the Veterans Court with
respect to a rule of law or the validity of any statute or
regulation, any interpretations thereof, or that raise any
constitutional controversies. See 38 U.S.C. § 7292 (2006).
We do not have jurisdiction to hear appeals challenging
factual determinations or the application of law to the
facts of a particular case, unless there is a constitutional
issue present. See § 7292(d)(2).
II.
On appeal, Beck asserts that the Veterans Court
erred by misinterpreting: (1) 38 C.F.R. § 3.159(a); (2) 38
U.S.C. § 5103A and 38 C.F.R. §§ 4.1, 4.2; and (3) the rule
of law established in Nieves-Rodriguez v. Peake, 22 Vet.
App. 295 (2008). The government argues that we lack
subject matter jurisdiction over this appeal because
Beck’s appeal does not actually challenge the Veterans
Court’s interpretation of any statute or rule of law. For
the reasons discussed below, we agree with the govern-
ment. Accordingly, we lack subject matter jurisdiction
and dismiss this appeal.
Beck’s first and second arguments on appeal are
based on an incorrect reading of the Veterans Court’s
decision. While Beck raises these arguments as separate
and distinct, because they present related issues, we will
address them together. In essence, these arguments are
premised on Beck’s assertion that the Veterans Court
refused to consider the treatise evidence because it was
not accompanied by a medical expert opinion, and that
the Veterans Court found that the treatise evidence could
not be used to undermine the credibility of the examiner’s
medical opinion. Beck’s characterization of the Veterans
Court’s decision is inaccurate.
The Veterans Court did not rule that treatise evidence
9 BECK v. DVA
can only be considered if it is accompanied by a medical
expert opinion. The Veterans Court explicitly stated that
medical treatises, standing alone, “may provide sufficient
evidence of a causal connection when it discusses generic
relationships with a degree of certainty so that the causal
connection is based on objective facts rather than on an
unsubstantiated lay medical opinion.” A 11 (internal
quotations and citation omitted). The Veterans Court
further explained that this court has held that a veteran
may use treatise evidence to establish a nexus without a
supporting medical opinion “in an appropriate case.” Id.(citing Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir.
2000)). In light of this precedent, the Veterans Court held
that the Board did not err by dismissing the treatise
evidence because it was too uncertain to be considered
without a supporting medical opinion, i.e., that this was
not an “appropriate case” to consider such evidence with-
out a supporting opinion. The Veterans Court, moreover,
noted that “the treatise evidence submitted discusses
back problems and their etiologies generally, supporting
the Board’s conclusion that a supporting medical opinion
was required.” A 12 (emphasis added). This discussion
makes clear that, contrary to Beck’s assertion, the Veter-
ans Court did not rule that treatise evidence must be
accompanied by a supporting medical opinion to be con-
sidered.
Nor did the Veterans Court rule that treatise evidence
could only be considered for the purpose of establishing a
nexus. In section B of its opinion, the Veterans Court
explicitly addressed Beck’s argument that “the Board
should have evaluated the credibility of the examiner’s
statements given the treatise evidence.” A 12. It found
that, in light of the general nature of treatise evidence, it
was “unclear how this information would impeach the VA
examiner’s competence.” A 13. Furthermore, the Veter-
BECK v. DVA 10
ans Court concluded that Beck “had not met his burden in
demonstrating that the Board erred in finding the exam-
iner and his opinion competent” because the treatise
evidence was insufficient to undermine the Board’s con-
clusion. Id. Additionally, the Veterans Court did not rule
that the Board was only required to consider treatise
evidence for the purpose of impeachment if the evidence
was supported by a medical opinion or independently
supported a nexus.
As the above discussion demonstrates, Beck’s first
and second arguments are premised on an incorrect
reading of the Veterans Court’s opinion. The Veterans
Court never made the rulings that Beck asserts are
statutory misinterpretations. Because the Veterans
Court did not make any of these rulings, this appeal does
not involve a challenge to an interpretation relied upon by
the Veterans Court. Beck’s first and second arguments,
therefore, do not present an issue over which we have
subject matter jurisdiction.
Turning to Beck’s last argument that we have rule of
law subject matter jurisdiction pursuant to Morgan v.
Principi, 327 F.3d 1357 (Fed. Cir. 2003), we conclude that
we do not posses this type of jurisdiction in this case. In
Morgan, we held that
in a case . . . in which the decision below regard-
ing a governing rule of law would have been al-
tered by adopting the position being urged, this
court has jurisdiction to entertain the matter,
even though the issue underlying the stated posi-
tion was not “relied on” by the Veterans Court.
327 F.3d at 1363. On the basis of Morgan, Beck asserts
that we have jurisdiction over this appeal because Nieves-
Rodriguez v. Peake, 22 Vet. App. 295 (2008), established a
rule of law that the Veterans Court failed to address and
11 BECK v. DVA
that, if it had adopted his position, the outcome of the
decision below would have been altered.
In Nieves-Rodriguez, the Veterans Court stated that
the three factors discussed in 702 of the Federal Rules of
Evidence 4 are
important, guiding factors to be used by the Board
in evaluating the probative value of medical opin-
ion evidence . . . . Therefore, where the Board fa-
vors one medical opinion over another, the Court
will review the Board’s decision to determine
whether these criteria have been met or properly
applied.
22 Vet. App. at 302. Beck asserts that he urged the
Veterans Court to find that the Board erred by failing to
evaluate the sufficiency of the examiner’s report as re-
quired by Nieves-Rodriguez. Appellant’s Br. at 16. The
Veterans Court did not mention the Nieves-Rodriguez
factors when it evaluated the Board’s decision. On the
basis of this omission, Beck asserts that, because “the
decision below would have been altered by the [Veterans
Court] adopting the position urged by Appellant,” we have
rule of law jurisdiction over this case.
In response, the government argues that we do not
have subject matter jurisdiction because Nieves-Rodriguez
did not establish a rule of law within the meaning of
Morgan, and even if it did, Beck has not established that
the outcome below would have been different if the Veter-
4 Expert testimony may be received from a suitably
qualified expert under the following conditions: (1) the
testimony is based upon sufficient facts or data; (2) the
testimony is the product of reliable principles and meth-
ods; and (3) the expert witness has applied the principles
and methods reliably to the facts of the case. See Fed. R.
Evid. 702.
BECK v. DVA 12
ans Court had adopted his position. Even assuming that
Nieves-Rodriguez established a rule of law within the
meaning of Morgan, an issue upon which we express no
opinion, we still do not have subject matter jurisdiction
over Beck’s appeal.
Beck’s argument fails because he has not established
that the outcome below would have been different if the
Veterans Court adopted his position. With respect to the
Board’s decision to assign greater weight to the exam-
iner’s opinion, the Veterans Court noted that the Board
reached this decision “because [examiner’s opinion] was
based on a review of the veteran’s medical history;
whereas there is no evidence that the veteran’s private
doctors ever reviewed his service treatment records.” A
38. The Board noted, moreover, that “[w]hile the showing
of no back disability at the time of separation was of
particular note to the VA examiner, none of the private
opinions even mentioned the lack of a back disability in
service or the lack of any treatment for a number of years
after service.” Id.
In other words, the Board assigned greater weight to
the examiner’s opinion for three reasons: (1) his opinion
was based on a review of Beck’s entire medical history; (2)
he was the only expert to consider the fact that Beck had
no back disability at discharge; and (3) Beck did not
receive any treatment for a number of years after dis-
charge. These findings on the credibility and weight of
the evidence are factual determinations that the Veterans
Court reviews for clear error. 38 U.S.C. § 7261(a)(4). Of
the three reasons cited by the Board, the treatise evidence
only undermines the third reason because it disclosed
that “most people with back pain do not seek medical
treatment; back pain is typically recurrent; and the
absence of back pain on any given day does not imply
normal lumbar function.” A 66. In light of this fact, Beck
13 BECK v. DVA
cannot establish that if the Veterans Court had applied
the Nieves-Rodriguez factors the outcome would have
been different because, even if the treatise evidence was
considered as part of this inquiry, the Board’s factual
findings were still supported by two independent reasons;
i.e., the factual findings were not clearly erroneous. Beck
cannot, therefore, meet the requirements of Morgan.
For the reasons discussed above, we lack jurisdiction
to hear this appeal because it does not involve the inter-
pretation of a statute or rule of law jurisdiction under
Morgan.
COSTS
Each party shall bear its own costs.
DISMISSED