Thrower v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7087
JOHN W. THROWER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
John W. Thrower, of Little Rock, Arkansas, pro se.
Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief was David J.
Barrans, Deputy Assistant General Counsel, Office of the General Counsel, United
States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7087
JOHN W. THROWER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in
07-1508, Judge Lawrence B. Hagel.
__________________________
DECIDED: October 9, 2009
__________________________
Before MICHEL, Chief Judge, FRIEDMAN, and GAJARSA, Circuit Judges.
PER CURIAM.
John W. Thrower appeals a decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”), which affirmed a decision of the Board of Veteran’s
Appeals (“Board”) that denied Mr. Thrower’s service-connected disability claims for a
cardiac disability, sleep apnea, and headaches. See Thrower v. Shinseki, No. 07-1508,
2009 WL 361398 (Vet. App. Feb. 12, 2009) (“Veterans Court Decision”). We dismiss
Mr. Thrower’s appeal for lack of jurisdiction.
BACKGROUND
John W. Thrower served on active duty in the United States Army from
December 1975 to March 1976, and again from January to March 1991. In April 2003,
Mr. Thrower filed a disability claim with the Department of Veterans Affairs (“VA”)
Regional Office (“RO”) for service connection relating to a cardiac disability, sleep
apnea, and headaches. The RO denied Mr. Thrower’s claim, and he appealed to the
Board. The Board conducted a videoconference hearing in November 2006, and
denied Mr. Thrower’s claims for service connection. See In re Thrower, No. 04-26 087,
2007 WL 3229977 (Bd. Vet. App. Feb. 8, 2007) (“Board Decision”).
Mr. Thrower appealed to the Veterans Court, arguing that he had been denied
the right to a hearing under 38 C.F.R. § 3.103(c), because the record of his November
2006 Board hearing was not clear and complete based on numerous statements that
were reported as inaudible. The Veterans Court affirmed the Board decision, holding
that 1) the purported error regarding the transcript of the Board hearing was not
prejudicial; and 2) Mr. Thrower failed to request correction of the transcript or rehearing
pursuant to 38 C.F.R. §§ 20.716 and 20.717(b)-(c).
Mr. Thrower timely filed this appeal.
DISCUSSION
The scope of our review of a Veterans Court decision is limited by statute. See
38 U.S.C. § 7292. We may review a decision by the Veterans Court with respect to the
validity 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). Absent a constitutional issue, we may not
2009-7087 2
review challenges to factual determinations or challenges to the application of a law or
regulation to facts. See 38 U.S.C. § 7292(d)(2).
Mr. Thrower does not raise any issue concerning validity or interpretation of any
statute or regulation. He also does not raise any constitutional issue. Mr. Thrower
appeals only factual determinations and the application of law to facts, both of which are
not within this Court’s jurisdiction. See id. Accordingly, we dismiss Mr. Thrower’s
appeal.
CONCLUSION
For the foregoing reasons, this appeal is dismissed for lack of jurisdiction.
No costs.
2009-7087 3