Anderson v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
PATRICK N. ANDERSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2011-7134
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-2334, Judge Lawrence B.
Hagel.
_________________________
Decided: October 14, 2011
_________________________
PATRICK N. ANDERSON, of Mobile, Alabama, pro se.
MICHAEL N. O’CONNELL, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and FRANKLIN E. WHITE, JR., Assistant Director. Of
ANDERSON v. DVA 2
counsel on the briefs were DAVID J. BARRANS, Deputy
Assistant General Counsel, and DANA RAFFAELLI, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
__________________________
Before NEWMAN, CLEVENGER, and O’MALLEY, Circuit
Judges,
PER CURIAM.
Patrick Anderson (“Anderson”) appeals the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the judgment of the Board of
Veterans Appeals (“Board”). Anderson v. Shinseki, No.
09-2334, 2011 WL 338724 (Vet. App. Feb. 4, 2011) (“Vet.
Ct. Op.”) The Veterans Court affirmed the Board’s judg-
ment because it concluded that the Board did not err
when it determined there was no clear and unmistakable
error (“CUE”) in a November 2006 Board decision, which
denied Anderson Veterans Administration (“VA”) benefits
for his low back disorder. In addition, the Veterans Court
dismissed Anderson’s vague due process claim as well as
his claim that the VA violated the criminal provisions of
18 U.S.C. § 1001 and the civil provisions of 31 U.S.C. §
3729 by including knowingly false statements in his VA
medical report. Anderson argues that the Veterans Court
erred in finding no CUE because the Board failed to
apply: (1) the presumption of soundness; and (2) the
benefit-of-the-doubt doctrine. With respect to Anderson’s
claims that the Veterans Court dismissed, Anderson
argues that the Veterans Court erred in not transferring
these claims to a federal court with jurisdiction. Because
we conclude that this appeal does not invoke our rule of
law jurisdiction, challenge the validity of any statute or
regulation, any interpretations thereof, or raise any
3 ANDERSON v. DVA
constitutional controversies, we dismiss for lack of juris-
diction.
BACKGROUND
Anderson served on active duty in the U.S. Army from
July 1982 until July 1985. Appendix (“A”) 1. In October
2000, Anderson filed a claim for VA benefits for his low
back disorder. The claim was denied by a VA regional
office (“RO”) in February 2001. Anderson appealed this
decision to the Board. After further factual development
of the record, in November 2006, the Board denied Ander-
son’s claim for VA benefits based on his low back disorder.
Anderson v. Shinseki, No. 02-01 180, slip op. (Bd. Vet.
App. Nov. 28, 2006). Reaching this conclusion, the Board
found that “there was medical evidence showing mild
degenerative disc disease at the L5-S1 disc with spondylo-
listhesis 1 at that location.” A 2. The only medical evi-
dence addressing the etiology of Anderson’s lower back
disorder, however, “was a January 2003 VA medical
examiner’s opinion stating that this pain may have been
caused by a post-service, work-related back strain Ander-
son suffered in 1999, but was not related to any in-service
event.” Id. Because the Board found this opinion highly
probative, the Board concluded that the weight of the
evidence was against Anderson’s claim that he suffered
from an injury suffered while serving in the Army.
Anderson did not appeal this decision, and it became
final.
In May 2007, Anderson filed a motion with the Board,
1 Spondylolisthesis is “forward displacement . . . of
one vertebra over another, usually the fifth lumbar over
the body of the sacrum, or of the fourth lumbar over the
fifth, usually due to a developmental defect in the pars
interarticularis.” Dorland’s Illustrated Medical Diction-
ary 1779 (31st ed. 2007).
ANDERSON v. DVA 4
asserting that the November 2006 decision contained
CUE. Specifically, Anderson alleged that the Board
committed CUE by ignoring private medical records it
received in August 2003, including x-ray results showing
spondylolisthesis and grade 1 spondylolysis. 2 Anderson
also asserted that his private physician informed him that
he had been born with this impairment.
Responding to Anderson’s motion, in April 2009, the
Board concluded that the November 2006 decision did not
contain CUE. Anderson v. Shinseki, No. 07-32 363, slip
op. (Bd. Vet. App. Apr. 16, 2009) (“2009 Bd. Op.”), aff’d,
2011 WL 338724 (Vet. App. Feb 4, 2011). The Board
found that, while the private medical records referenced
by Anderson were not mentioned in the November 2006
decision, the evidence contained in the private medical
records was cumulative to the evidence the Board ex-
pressly considered, ambiguous in some respects, and did
not establish that Anderson had been born with spondylo-
listhesis or spondylolysis. The Board found that the
record lacked “any evidence . . . establishing a medical
relationship between [Anderson’s] current back disability
and active service . . . .” 2009 Bd. Op., slip op. at 10. The
2006 decision, therefore, did not contain CUE. Anderson
appealed this decision to the Veterans Court.
Before the Veterans Court, Anderson challenged the
Board’s 2009 conclusion that the 2006 decision did not
contain CUE. In addition, Anderson also claimed that: (1)
the VA violated his rights under the Fifth Amendment to
the U.S. Constitution by taking 7 years to fully adjudicate
his claims and delayed adjudication because of racial
prejudice; and (2) a VA medical examiner made false
statements pertaining to the history of his back pain in a
2 Spondylolysis is “dissolution of a vertebra . . . .”
Dorland’s at 1780.
5 ANDERSON v. DVA
January 2003 examination report, constituting criminal
acts under 18 U.S.C. § 1001 and entitling him to civil
damages pursuant to the False Claims Act, 31 U.S.C. §
3729. Addressing the merits of these claims, the Veterans
Court concluded that: (1) the Board did not commit error
when it concluded that the 2006 Board decision did not
contain CUE; (2) Anderson’s due process claim was too
“abstract, vague, and therefore without merit;” and (3) it
lacked subject matter jurisdiction over Anderson’s claims
related to the allegedly false statements contained in the
VA examiner’s report.
With respect to Anderson’s CUE claim, the Veterans
Court explained that its review of the Board’s decision
finding no CUE was limited to determining whether the
Board’s conclusion was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” Vet.
Ct. Op., 2011 WL 338724, at *2 (citing 38 U.S.C. §
7261(a)(3)(A)), and whether it was supported by an ade-
quate statement of reasons or bases, Id. (citing 38 U.S.C.
§ 7104(d)(1)). After reviewing the record and discussing
the Board’s stated rationale for its decision, the Veterans
Court determined that the Board’s 2009 decision was not
arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with the law; and it contained an ade-
quate statement of the reasons or bases for the decision.
Specifically, the Veterans Court noted that
the Board acknowledged June 2000 VA x-rays
showing mild degenerative disc disease at L5-S1
with spondylolisthesis at that level and that VA
treatment reports continued that assessment. It
also expressly considered an April 2002 VA mag-
netic resonance image that confirmed degenera-
tive disc disease at L5-S1 with anterolisthesis of
L5 on S1.
ANDERSON v. DVA 6
Id. at *3. (internal quotations omitted). In light of
this evidence, the Veterans Court determined that the
Board’s conclusion that Anderson’s private medical re-
cords were merely cumulative to the evidence it consid-
ered was not arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. The Veterans
Court concluded, moreover, that the Board’s stated rea-
sons for finding that Anderson’s evidence was ambiguous
as to the etiology of his back injury were sufficient. The
Veterans Court, therefore, affirmed the Board’s determi-
nation that the 2006 decision did not contain CUE.
Turning to Anderson’s due process claim, the Veter-
ans Court concluded that, in light of the fact that the
decision only took 6 years and that some of the delay was
caused by Anderson, it amounted to a mere assertion of
constitutional impropriety that was too vague to require
that it be addressed on the merits by the Veterans Court.
Finally, with respect to Anderson’s claims arising from
the allegedly false statements contained in the examiner’s
report, the Veterans Court determined that it lacked
subject matter jurisdiction to hear these claims. Accord-
ingly, the Veterans Court dismissed these claims as well
as Anderson’s due process claim.
Anderson filed a timely appeal.
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
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
7 ANDERSON v. DVA
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 38 U.S.C. § 7292(d)(2) (2006).
II.
On appeal, Anderson asserts that the Veterans Court
erred because the Board: (1) improperly applied the
presumption of soundness; (2) improperly applied the
benefit-of-the-doubt doctrine; and (3) the Veterans Court
should have transferred his due process claim and his
claims relating to the false statements to a federal court
with subject matter jurisdiction over those claims. The
government argues that we lack subject matter jurisdic-
tion over this appeal because Anderson’s appeal does not
actually challenge the Veterans Court’s interpretation of
any statute or rule of law, nor does it raise any constitu-
tional controversies. For the reasons discussed below, we
agree with the government. Accordingly, we lack subject
matter jurisdiction and dismiss this appeal.
At the outset, we note that Anderson indicated on his
informal brief, form 13, that his appeal does not involve:
(1) the validity or interpretation of a statute or regulation;
(2) a constitutional issue; or (3) any other issue which the
Veterans Court decided incorrectly. Despite these state-
ments, which amount to an admission that we lack sub-
ject matter jurisdiction over this appeal, and because of
the pro-claimant character of the Veterans’ benefits
statutes and Anderson’s pro se status, we will still con-
sider the arguments Anderson makes in his informal
brief.
Anderson’s arguments boil down to his assertion that
the Board erred by failing to apply the presumption of
ANDERSON v. DVA 8
soundness and the benefit-of-the-doubt doctrine to his
case. On the facts before us, however, these arguments do
not give rise to our jurisdiction over this appeal.
The presumption of soundness applies in situations
where the veteran seeks benefits for an injury sustained
while in service. Dye v. Mansfield, 504 F.3d 1289, 1293
(Fed. Cir. 2007) (“The ‘presumption of sound condition’
addresses the situation where a question arises whether
the veteran’s medical problems that arose during service
existed before he joined the armed forces and, therefore,
were not incurred ‘in the line of duty.’ ”) (emphasis
added). The presumption states that the veteran is
presumed to have no pre-existing conditions except for
any injuries noted in his enrollment examination. See 38
U.S.C. § 1111 (Presumption of Sound Condition for War-
time Disability Compensation); 38 U.S.C. § 1132 (Pre-
sumption of Sound Condition for Peacetime Disability
Compensation). The presumption, therefore, puts the
burden on the government to establish that an injury that
occurred during service for which the veteran seeks
benefits was not caused during service but was instead a
pre-existing condition. See generally Wagner v. Principi,
370 F.3d 1089 (Fed. Cir. 2004) (discussing the presump-
tion of soundness).
The benefit-of-the-doubt doctrine requires that
“[w]hen there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit-of-the-doubt to the claimant.” 38 U.S.C. § 5107(b).
The doctrine, therefore, “only applies when there is ‘an
approximate balance of positive and negative evidence.’ ”
Ferguson v. Principi, 273 F.3d 1072, 1076 (Fed. Cir. 2001).
On the facts of Anderson’s case, neither the presump-
tion of soundness nor the benefit-of-the-doubt doctrine are
9 ANDERSON v. DVA
applicable. Accordingly, neither the Board nor the Veter-
ans Court were required to discuss the presumption or the
doctrine. See Robinson v. Shinseki, 557 F.3d 1355, 1361
(Fed. Cir. 2009) (noting that the Board is not required to
consider “claims which have no support in the record . .
.”). As explained by the Board in 2009:
In light of the lack of any medical evidence of a
pre-existing back condition, the lack of evidence of
a chronic back disability at the time of the moving
party’s separation from service, the lack of evi-
dence of a degenerative disease in the spine for
many years after service, and the lack of any evi-
dence, such as a nexus opinion, establishing a
medical relationship between the moving party’s
current back disability and active service or his
service related right ankle disability, it was rea-
sonable for the Board to deny service connection
for a low back disorder at the time of its Novem-
ber 28, 2006 decision.
2009 Bd. Op., slip op. at 10. In other words, the Board
determined that there was insufficient evidence to estab-
lish that Anderson had a back injury when he left the
Army, much less that he injured his back during service.
The presumption of soundness does not apply in this
situation. Application of the presumption of soundness is
predicated on an injury sustained while the veteran is in
service. In such circumstances, the presumption estab-
lishes a hurdle the government must overcome to deny
service connection based upon the argument that the
injury was a pre-existing condition. Here, by contrast, the
Board concluded that Anderson injured his back after he
left the Army. The presumption simply does not apply in
this case.
Similarly, the benefit-of-the-doubt doctrine is also in-
ANDERSON v. DVA 10
applicable to Anderson’s claim for service connection for
his lower back injury. As discussed in Ferguson, the
doctrine only applies when the positive and negative
evidence are approximately balanced. 273 F.3d at 1076.
As discussed by the Board in 2009, however, there was
almost no evidence establishing that Anderson’s back
injury was a result of an injury that occurred while
Anderson was in service. In contrast, the Board con-
cluded that the record contained substantial evidence that
Anderson’s back injury was not caused by an injury
sustained while he served, including: (1) a June 1985
separation examination reflecting no spinal abnormali-
ties; (2) Anderson’s testimony that he first sought post-
service back treatment in 1990; and (3) a VA examiner
opinion that Anderson’s current low back disorder was
unrelated to any event in active service, but that the
injury may have been caused by a work related back
strain in 1999.
Anderson alternatively argues that, because here is
evidence that his low back disorder is congenital, the VA
and the Veteran’s Court should have applied the benefit-
of-the-doubt rule to conclude that his condition was ag-
gravated while in service. Again, however, the Board
found no evidence of aggravation and concluded that all
facts supported the conclusion that, whether his back
disorder resulted from an aggravation of a latent child-
hood condition or from an injury, the triggering event
post-dated his service.
When an appellant argues that the Veterans Court
and the Board simply failed to apply an unambiguous
statute, which is not applicable, and neither interpreted
it, we lack subject matter jurisdiction over the appeal.
Ferguson, 273 F.3d at 1076 (holding that the Federal
Circuit lacked jurisdiction because, instead of interpreting
the unambiguous statute, the Board and the Veterans
11 ANDERSON v. DVA
Court determined that it was not applicable). As we held
in Ferguson, “[t]he benefit-of-the-doubt provision only
applies when there is ‘an approximate balance of positive
and negative evidence.’ Here, the Board determined there
was no approximate balance and, accordingly, it could not
apply § 5107(b). The court below agreed, and it was
correct.” Id.
Because Anderson’s only claim of CUE is premised on
the Board’s and the Veterans Court’s failures to apply the
presumption of soundness and the benefit-of-the-doubt
doctrine, which are clearly inapplicable under the facts of
this case, we lack subject matter jurisdiction over this
appeal. It appears that Anderson’s real objections are to
the Board’s factual conclusions, which we may not review.
Finally, Anderson asserts that the Veterans Court
erred by refusing to transfer his due process claim and his
claims based on the allegedly false statements contained
in the examiner’s report. Anderson does not challenge the
propriety of the Veterans Court’s underlying rulings that
led to these dismissals. Because the Veterans Court is
not a court within the meaning of the transfer statue, 28
U.S.C. §§ 660, 1631; see also Felder v. Shinseki, 401 F.
App’x 551, 552 (Fed. Cir. 2010) (unpublished decision),
however, we have no subject matter jurisdiction over this
question; it does not involve the interpretation of a stat-
ute.
For the reasons discussed above, we lack jurisdiction
to hear this appeal because it does not involve the validity
of any statute or regulation, an interpretation thereof,
rule of law, or raise any constitutional controversies.
DISMISSED
COSTS
Each party shall bear its own costs.