Brady v. McDonough

Case: 21-2206 Document: 16 Page: 1 Filed: 05/13/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TERRY T. BRADY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2206
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6918, Judge Joseph L. Toth.
______________________
Decided: May 13, 2022
______________________
TERRY T. BRADY, Boise, ID, pro se.
SEAN KELLY GRIFFIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, MARTIN F. HOCKEY,
JR.
______________________
Before NEWMAN, REYNA, and WALLACH, Circuit Judges.
Case: 21-2206 Document: 16 Page: 2 Filed: 05/13/2022
2 BRADY v. MCDONOUGH
NEWMAN, Circuit Judge.
Appellant Terry T. Brady served with the United
States Marine Corps from 1953 to 1956. The Board of Vet-
erans’ Appeals (“BVA” or “Board”) denied his claim of ser-
vice connection for certain neuropathies that became
manifest in 2006. The issue relates to Mr. Brady’s possible
exposure to radiation and whether there is a presumption
of service-connection on the facts hereof. The BVA found
that service connection was not established, and the Court
of Appeals for Veterans Claims (“CAVC”) affirmed. 1
The record on appeal contains differing medical opin-
ions concerning whether Mr. Brady’s neuropathies relate
to his military service. These medical opinions, and their
balance and weight, are factual in nature, and entail no
questions of law or relevant presumptions of service-con-
nection. This court lacks authority to review such factual
determinations unless constitutional questions are in-
volved. We conclude that the appeal must be dismissed, for
the issue is entirely factual, and not within our appellate
jurisdiction.
DISCUSSION
While serving with the Marines, Mr. Brady’s duty sta-
tion at Lake Meade Base was 65 miles from a test site at
which fourteen atmospheric nuclear tests were conducted
during his service. The government’s evidence was from
the U.S. Department of Energy National Nuclear Security
Administration and estimated that Mr. Brady was exposed
1 Brady v. McDonough, No. 19-6918, 2021 WL
2587736 (Vet. App. June 24, 2021) (“CAVC Decision.”); In
re Terry Brady, Docket No. 18-28 409A (Bd. Vet. App. July
16, 2019) (“Board Decision”).
Case: 21-2206 Document: 16 Page: 3 Filed: 05/13/2022
BRADY v. MCDONOUGH 3
to 0.016 rems of ionizing radiation2 at a distance of 65
miles. The Board noted that there were “no other meas-
urements or dose estimates of record.” Board Decision at
3.
At his discharge in 1956, Mr. Brady received a physical
examination that noted certain cardiac abnormalities, but
no neurological issue. In 2006, Mr. Brady reported to his
physician that he was experiencing tremors in his hands.
In 2016, Mr. Brady was diagnosed with peripheral neurop-
athy in his lower extremities. He filed a claim for service
connection, stating that he has experienced muscular and
neurological issues since 1957. Mr. Brady obtained an
opinion from a VA doctor stating that Mr. Brady had pro-
vided information of “at least two cases where the VA de-
termined that ionizing radiation is associated with
peripheral neuropathies.” CAVC Decision at *2 (citation
omitted). Accordingly, the doctor stated that Mr. Brady’s
neuropathy was “related to his exposure to ionizing radia-
tion. . .” Id. Mr. Brady also submitted the testimony of a
private chiropractor linking his neuropathy to radiation ex-
posure. Id.2 The rem is a measure of radiation dose. “The rem
is a useful unit because a rem of any radiation type should
produce the same biological effect as a rem of any other
type of radiation.” Prescott v. United States, 858 F. Supp.
1461, 1468 n.4 (D. Nev. 1994). “In context, the average
American receives .300 rem of radiation yearly from natu-
ral sources like radon gas. Hence, a normal lifetime dose
of natural radiation would be 19.5 rem.” Caputo v. Bos.
Edison Co., 924 F.2d 11, 12 n.1 (1st Cir. 1991). An “average
American by age 64 will receive about 6.5 rem of radiation
from x-rays.” Id. (quoting Johnston v. United States, 597
F. Supp. 374, 390 (D. Kan. 1984)).
Case: 21-2206 Document: 16 Page: 4 Filed: 05/13/2022
4 BRADY v. MCDONOUGH
The VA provided two medical opinions that stated that
the dose of radiation to which Mr. Brady had been exposed
was too low to have resulted in neuropathy.
In July 2019, the Board reviewed the evidence and
found that there was no causal connection between Mr.
Brady’s exposure to radiation in service and his present
neuropathy. Board Decision at 7 (Brady’s “records include
no complaints of neurological problems of the extremities,
and clinical evaluation of the upper and lower extremities
and the feet were ‘normal’ upon separation from service.”).
The Board also determined that no presumption of service
connection arose, because Mr. Brady’s condition was not
documented until 50 years after his service. Id. at 6; see 38
C.F.R. § 3.303(b) (presumption of service connection arises
only when condition is “noted” within one year of separa-
tion after service). 3 The Board compared Mr. Brady’s tes-
timony that he had experienced neuropathy issues since
1957, with his documented statement to his physician in
2006. The Board found no service connection.
The CAVC affirmed the Board’s finding of no service
connection. The court referred to the Department of En-
ergy’s estimate of Mr. Brady’s radiation exposure, and de-
termined that the Board did not err in giving no weight to
3 A presumption of service connection to ionizing ra-
diation exposure is provided for some ailments, but not the
neuropathy of which Mr. Brady complains. The presump-
tion of service connection exists for certain diseases (mostly
cancers) caused by ionizing radiation. 38 U.S.C. § 1112; see
Ramsey v. Gober, 120 F.3d 1239, 1243–44 (Fed. Cir. 1997)
(discussing statute). The VA has expanded the legislated
presumption of service connection by regulation to addi-
tional diseases (again, mostly cancers). 38 C.F.R. § 3.311.
There is no provision for a presumption of service connec-
tion for peripheral neuropathy.
Case: 21-2206 Document: 16 Page: 5 Filed: 05/13/2022
BRADY v. MCDONOUGH 5
Mr. Brady’s medical opinions, for those opinions did not
mention the very low dose of radiation to which Mr. Brady
could have been exposed.
The CAVC also found no clear error in the Board’s
treatment of Mr. Brady’s testimony that his symptoms
were present at his separation from service. The court
stated that 10 years had passed between 1995, when the
nuclear testing at issue was declassified, and Mr. Brady’s
first report to a physician of neuropathy in 2006. See CAVC
Decision at *4 (“more than 20 years passed between when
Mr. Brady said he could talk about his service and when he
filed his claim.” (citation omitted)). Mr. Brady reported to
his physician in 2006 that the tremor in his hands was
“new.” Consequently, the court determined that the BVA
did not clearly err in giving no weight to Mr. Brady’s con-
tention that he refrained from reporting his tremor because
his nuclear exposure had been classified.
“Unless presented with a constitutional challenge, we
lack jurisdiction to review any ‘challenge to a factual deter-
mination’ or any ‘challenge to a law or regulation as applied
to the facts of a particular case.’” Cameron v. McDonough,
1 F.4th 992, 994 (Fed. Cir. 2021) (quoting 38 U.S.C.
§ 7292(d)(2)). Mr. Brady argues that the evidence was not
uniformly against service connection, citing the conflicting
medical opinions. He also cites evidence that even low
doses of radiation can cause radiation-linked disease.
Brady Br. at 4–6. He states, and precedent supports, that
the existence of doubt favors service connection in inter-
preting statutes and regulations. E.g., Brown v. Gardner,
513 U.S. 115, 118 (1994) (“interpretive doubt is to be re-
solved in the veteran’s favor”). Mr. Brady states that, had
the veterans’ authorities taken “due care” in processing his
claim, they would have made a different factual finding re-
garding service connection. He argues that the BVA’s hold-
ing is “prejudicial error” and is subject to our appellate
review. Brady Br. at 4–6.
Case: 21-2206 Document: 16 Page: 6 Filed: 05/13/2022
6 BRADY v. MCDONOUGH
Mr. Brady’s claim rests on the factual question of
whether the radiation exposure he experienced during
1953–1956 was or could reasonably be causally related to
the neuropathy he medically reported in 2006. The Board
and the CAVC determined that the facts did not support a
causal relationship between Mr. Brady’s radiation expo-
sure and his neuropathy. We discern no error or misinter-
pretation of law. Our jurisdictional statute precludes our
re-weighing the evidence and re-finding the facts. 38
U.S.C. § 7292(d)(2). Mr. Brady’s appeal must be dismissed.
DISMISSED
COSTS
No costs.