Jackson v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EDWARD H. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7056
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-2663, Chief Judge Bruce E.
Kasold.
____________________________
Decided: December 6, 2012
____________________________
EDWARD H. JACKSON, of Oakland, California, pro se.
JEFFREY D. KLINGMAN, 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 STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
JACKSON v. SHINSEKI 2
Director, and KIRK T. MANHARDT, Assistant Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and AMANDA R. BLACKMON,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Edward H. Jackson (“Jackson”) appeals from a deci-
sion of the United States Court of Appeals for Veterans
Claims (“Veterans Court”). The Veterans Court affirmed
a decision of the Board of Veterans’ Appeals (“the Board”)
denying entitlement to service connection for a degenera-
tive lumbar disc condition. Jackson v. Shinseki, No. 10-
2663, 2011 WL 5533325 (Vet. App. Nov. 15, 2011). For
the reasons that follow, we dismiss for lack of jurisdiction.
BACKGROUND
Jackson served on active duty in the United States
Navy from May 1977 to September 1982 and from De-
cember 1983 to December 1985. In September 1978,
Jackson was evaluated by military medical personnel
after complaining of pain in his left side, leg, groin, and
back; he was diagnosed with an enlarged lymph node and
cellulitis (a skin infection) and treated accordingly. In
June 1980, Jackson reported experiencing low back pain,
later diagnosed as a lumbosacral strain, after falling from
a bicycle. Subsequent medical records include in-service
examinations in 1982 and 1983 and an examination upon
his separation from service in 1985, all reflecting no
further back pain or associated treatment. The record
also indicates that Jackson was involved in a post-service
3 JACKSON v. SHINSEKI
car accident in 1993 in which he suffered an L3 vertebral
compression fracture and an ankle fracture.
In January 2004, Jackson underwent a private MRI
examination that revealed degenerative disc disease in
the L5-S1 region, and the examining physician stated his
opinion that “the degenerative changes . . . probably
started with the lymphanditis and cellulites [sic] he first
experienced in the military.” Later that month Jackson
filed a claim at the Department of Veterans Affairs (“VA”)
seeking disability benefits. The VA denied that claim in
June 2004, and Jackson appealed to the Board. The VA
conducted its own examination in March 2005, finding a
lumbar strain with nerve compression. The VA examiner
opined that “there does appear to be a lumbar disability . .
. that originated in the service” and likely worsened after
Jackson’s post-service auto accident. The VA confirmed
the diagnosis with MRI and electromyography studies,
and Dr. Richard Karp, the treating physician, suggested
in October 2008 that Jackson might have been errone-
ously diagnosed with cellulitis rather than a back injury
in 1978.
The Board conducted a hearing in November 2008, in
which it reviewed the record and heard Jackson’s testi-
mony detailing his in-service medical history and describ-
ing chronic back pain following his separation from
service in 1985. Jackson also submitted lay statements
from his cousin and sister averring that Jackson had
suffered ongoing pain and disability since leaving the
Navy. The Board remanded in light of Dr. Karp’s state-
ments suggesting that Jackson’s in-service cellulitis
diagnosis may in fact have been a back injury now mani-
festing in his current disability. Accordingly, the Board
requested further development and instructed that a new
VA examination be conducted.
JACKSON v. SHINSEKI 4
The VA performed the new examination in April 2009.
The examiner confirmed the prior diagnosis of lumbosac-
ral degenerative disc disease and reviewed Jackson’s
service and post-service medical history, stating that the
1978 cellulitis diagnosis had “nothing to do” with his
current back problems and noting that Jackson was seen
only once for back pain during service, in June 1980. The
examiner further noted that all subsequent recorded
examinations lacked any mention of back problems and
that Jackson’s medical record contained no evidence of
such complaints until after the 1993 auto accident.
Noting that degenerative disc disease is “not uncommon”
at Jackson’s age, the examiner opined that his present
symptoms were likely age-related and that it would be
“mere speculation to make any connection of his current
back problems to that of a one-time minor episode” in
1980. The examiner thus concluded that Jackson’s cur-
rent disability was unrelated to his active military ser-
vice.
In July 2010, the Board issued its decision denying
Jackson’s claim. The Board found the 2009 VA examina-
tion report more probative than the 2004 and 2005 medi-
cal opinions because the 2004 report was not based on a
review of Jackson’s claims file and the 2005 report in-
cluded statements inconsistent with the available medical
records. The Board also found that Jackson’s testimony
was not credible and not sufficient to establish a connec-
tion between his current disability and his earlier mili-
tary service. Accordingly, the Board concluded that the
preponderance of the evidence weighed against finding
Jackson’s back condition to be service connected.
Jackson requested review of the Board’s decision, and
the Veterans Court affirmed. Jackson, 2011 WL 5533325,
at *1. In particular, the Veterans Court held that (1) the
5 JACKSON v. SHINSEKI
Board adequately considered the lay statements submit-
ted on Jackson’s behalf, (2) the Board sufficiently ex-
plained its decision to afford more probative weight to the
2009 medical examination report than the 2004 and 2005
reports, (3) the Board had not improperly developed
negative evidence against Jackson’s claim by ordering the
2009 examination, (4) the 2009 examination report was
not premised on an incorrect or incomplete understanding
of the facts, and (5) the Board’s ultimate conclusion that
the evidence weighed against Jackson’s claim was not
clearly erroneous. Id. at *1–3. Jackson timely appealed
to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is circumscribed by statute. Under 38 U.S.C.
§ 7292(a), a party may obtain review “with respect to the
validity of a decision of the Court on a rule of law or of
any statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the Court in making the decision.”
Under § 7292(d)(2), however, absent a constitutional
issue, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.”
In his informal brief, Jackson argues that under the
benefit-of-the-doubt doctrine “a veteran need only demon-
strate that there is an approximate balance of positive
and negative in order to prevail” and contends that he has
established that balance in the evidence. The benefit-of-
the-doubt doctrine provides 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
JACKSON v. SHINSEKI 6
the claimant.” 38 U.S.C. § 5107(b); see also 38 C.F.R.
§ 3.102. By its terms, the benefit-of-the-doubt doctrine
applies only when the evidence for and against the vet-
eran’s claim lies in approximate balance, yet in this case
the Board found that “the preponderance of the evidence
is against finding that the Veteran’s current low back
disability is etiologically related to his military service.”
By arguing that the doctrine should nonetheless be ap-
plied, Jackson necessarily contends that the evidence
presented was near equilibrium, contrary to the Board’s
express findings. Jackson’s argument thus rests on
disagreement with the Board’s evaluation and weighing of
the evidence, which constitute factual determinations
that lie beyond our jurisdiction under § 7292(d)(2).
Jackson also cites Reonal v. Brown, 5 Vet. App. 458(1993), in support of his appeal, but that case concerned
the standards for determining whether newly submitted
evidence qualifies as sufficiently material to warrant
reopening a previously denied claim for service connec-
tion. We do not see, nor has Jackson explained, how that
decision bears on the disputed issues in this appeal.
Finally, Jackson argues that the Board violated 38
U.S.C. § 7104(d)(1), which requires “a written statement
of the Board’s findings and conclusions, and the reasons
or bases for those findings and conclusions, on all mate-
rial issues of fact and law presented on the record” in each
of its written decisions. As he argued before the Veterans
Court, Jackson maintains that the Board did not ade-
quately explain “why it failed to properly weigh and
consider evidence favorable to Appellant.” The Veterans
Court considered that argument and held that “the
Board’s view of the evidence is plausible and not clearly
erroneous, and its statement in support thereof is under-
standable and facilitative of judicial review.” Jackson,
7 JACKSON v. SHINSEKI
2011 WL 5533325, at *1. Disturbing that conclusion
would require us to pass on the Veterans Court’s applica-
tion of law, § 7104(d)(1), to the facts, presumably the
Board’s evaluation of the 2004 and 2005 medical opinions.
We lack jurisdiction to perform such a review. Cook v.
Principi, 353 F.3d 937, 940–41 (Fed. Cir. 2003).
For the foregoing reasons, we must dismiss for lack of
jurisdiction.
DISMISSED
COSTS
No costs.