Forster-Jones v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARY R. FORSTER-JONES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7020
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-3954, Judge Robert N.
Davis.
____________________________
Decided: May 10, 2012
____________________________
MARY R. FOSTER-JONES, of Jacksonville, Alabama, pro
se.
ALEX P. HONTOS, Trial Attorney, 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
FORSTER-JONES v. SHINSEKI 2
counsel on the brief DAVID J. BARRANS, Deputy Assistant
General Counsel, and TRACEY P. WARREN, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before PROST, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Mary R. Forster-Jones appeals the U.S. Court of Ap-
peals for Veterans Claims’s (the “Veterans Court”) deci-
sion affirming the Board of Veterans’ Appeals’s (the
“Board”) denial of her claim for service connection for her
late husband’s bladder cancer. Because Ms. Forster-Jones
asks this court to review only issues of fact, we dismiss
her appeal as outside the scope of our jurisdiction.
Ms. Forster-Jones’s husband, Gene E. Forster, served
on active duty from December 1941 to July 1945 and from
March 1948 to January 1969. Mr. Forster’s decorations
included the Combat Infantryman Badge and the Bronze
Star. Because his service included a tour in Vietnam, the
Board recognized that Mr. Forster was presumptively
exposed to Agent Orange. Mr. Forster contracted malaria
in 1945 and was granted a ten-percent rating for that
ailment. In November 1991, Mr. Forster received a
diagnosis of bladder cancer and died from that ailment
the following month.
As Mr. Forster’s surviving spouse, Ms. Forster-Jones
filed a claim for service connection for Mr. Forster’s
bladder cancer and a claim for dependants’ education
assistance. To prove inception of the bladder cancer while
her husband was in service, Ms. Forster-Jones proffered
an opinion from a private physician, who stated that “[Mr.
Forster’s] exposure to Agent Orange was a contributing
factor to his bladder cancer.” A regional office (“RO”) of
3 FORSTER-JONES v. SHINSEKI
the Department of Veterans Affairs (“VA”) denied the
claims.
Ms. Forster-Jones appealed to the Board, which found
that the RO had inadequately considered the private
medical opinion. Accordingly, the Board remanded the
case and ordered a VA medical opinion, instructing the
VA medical examiner to “provide an opinion as to whether
it is at least as likely as not that the veteran’s bladder
cancer was related to exposure to Agent Orange during
service, or any other disease, including malaria, event, or
exposure during, military service.” The Board further
stated that “the examiner must specifically address the
private medical opinion . . . [and a] complete rationale
must be provided for all opinions.”
On remand, the VA medical examiner opined that it
was less likely as not that Mr. Forster’s bladder cancer
resulted from Agent Orange, malaria, or any other service
exposures. The VA medical examiner explained that
there was no positive relationship or increased risk of
bladder cancer associated with Agent Orange or malaria,
and noted that Mr. Forster engaged in the primary risk
factor for bladder cancer: tobacco usage. When the case
returned to the Board, the Board credited the VA medical
examiner’s opinion over that of the private physician.
Finding that the preponderance of the evidence failed to
demonstrate service connection, the Board denied the
claims.
Ms. Forster-Jones appealed to the Veterans Court,
where she made two principal arguments. First, she
argued that the Board erred by relying on the VA medical
examiner’s report because the examiner provided an
insufficient rationale for his conclusion. Specifically, she
argued that the examiner failed to address whether the
time lag between exposure to Agent Orange and the
FORSTER-JONES v. SHINSEKI 4
development of bladder cancer was consistent with the
amount of time generally noted for bladder cancer. The
Veterans Court disagreed, finding that the Board did not
clearly err because, as the examiner opined, studies
reveal no positive link between Agent Orange and bladder
cancer in the first instance. Second, Ms. Forster-Jones
argued that the Board failed to ensure compliance with its
own remand order, because, contrary to the Board’s order,
the VA medical examiner failed to “specifically allude to”
the private medical opinion in his own opinion. The
Veterans Court rejected this argument, finding that the
examiner substantially complied with the order. The
Veterans Court found that the private physician’s opinion
itself was conclusory and lacked any reasoning. Accord-
ing to the Veterans Court, the VA medical examiner
“addressed this opinion when he refuted its only conclu-
sion” and was not required to address the reasoning of
that opinion because “there was none.” For these reasons,
the Veterans Court affirmed the Board’s decision.
On appeal to this court, Ms. Forster-Jones requests
that we “[r]econsider the denial of service connected death
of the veteran.” Because Ms. Forster-Jones is pursuing
her appeal pro se, we construe her appeal liberally and
assume that she is claiming that the Veterans Court
erred in rejecting both of the arguments she presented to
that court. While Ms. Forster-Jones does not provide any
argument to support her appeal here, we assume that she
intends to rely on the same arguments she made below.
We lack jurisdiction, however, to review the Veterans
Court’s rejection of those arguments. Our review of
Veterans Court decisions is limited to deciding questions
of law. 38 U.S.C. § 7292(d)(1); Bingham v. Nicholson, 421
F.3d 1346, 1348 (Fed. Cir. 2005). The arguments that Ms.
Forster-Jones presented to the Veterans Court, and
presumably requests that this court review, require the
5 FORSTER-JONES v. SHINSEKI
review of factual issues, which is outside our jurisdiction.
Id.
Ms. Forster-Jones’s first argument—that the Board
erred by relying on the allegedly incomplete VA medical
examination report—raises a factual issue that we lack
jurisdiction to review. In claiming that the VA medical
examiner failed to consider the lag time between the
exposure to Agent Orange and the manifestation of blad-
der cancer, Ms. Forster-Jones raised a fact-based chal-
lenge to the expert’s opinion. The Veterans Court found
that the opinion was reliable and that it weakened Ms.
Forster-Jones’s claim that the bladder cancer originated
in service. The Veterans Court’s consideration of a medi-
cal opinion in this context is a factual issue outside the
scope of our review. See Pathak v. Shinseki, 412 F. App’x
301, 303-04 (Fed. Cir. 2011) (noting that this court lacks
jurisdiction to review fact-based assertions of medical
errors in examinations); Rayburn v. Peake, 306 F. App’x
580, 582 (Fed. Cir. 2009) (holding that the determination
of whether an examination is adequate is a question of
fact outside this court’s jurisdiction).
Ms. Forster-Jones’s second argument—that the Board
failed to ensure compliance with its own remand order—
also is a factual issue that we lack jurisdiction to review.
To determine whether the VA medical examiner complied
with the Board’s order, the Veterans Court was required
to engage in a factual analysis: by comparing the private
medical opinion with the VA medical examiner’s report
and assessing whether the VA report addressed the
content of the private medical opinion. This factual
analysis is outside the scope of our review. See Rolling v.
Peake, 306 F. App’x 601 (Fed. Cir. 2009) (holding that the
adequacy of the VA’s compliance with an order for further
medical examination is an issue outside the scope of our
review); Chest v. Peake, 283 F. App’x 814, 817 (Fed. Cir.
FORSTER-JONES v. SHINSEKI 6
2008) (“The substantive question at issue in [the] ap-
peal—whether or not the remand order was substantially
fulfilled—is not a question that can be reviewed without
our examining the Veterans Court’s application of law to
fact, a task that we are prohibited from undertaking.”);
Dyment v. Principi, 287 F.3d 1377, 1381 (Fed. Cir. 2002)
(holding that the claimant’s disagreement with whether a
medical expert substantially complied with the Board’s
remand order was a factual matter outside the scope of
this court’s review).
Finally, we note that Ms. Forster-Jones did not assert
any error in the Board’s decision with respect to her
education assistance claim before the Veterans Court.
Accordingly, we do not consider that issue here.
Because we discern nothing to review in Ms. Forster-
Jones’s appeal other than factual issues, we must dismiss
her appeal as outside the scope of our jurisdiction.
DISMISSED
COSTS
Each party shall bear its own costs.