Janet Berry v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JANET D. BERRY,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2013-7013
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1108, Judge Bruce E. Kasold.
______________________
Decided: May 9, 2013
______________________
JANET D. BERRY, of Venice, Florida, pro se.
DANIEL RABINOWITZ, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN HOCKEY, Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
2 JANET BERRY v. SHINSEKI
Assistant General Counsel and MEGHAN D. ALPHONSO,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before RADER, Chief Judge, MOORE, Circuit Judge, and
BENSON, District Judge. *
PER CURIAM.
The United States Court of Appeals for Veterans
Claims upheld the denial of Ms. Janet Barry’s claim that
her post-traumatic stress disorder (PTSD) was service
connected. Because Ms. Berry appeals issues of fact, this
court dismisses her appeal for lack of jurisdiction.
I.
Ms. Berry served on active duty in the Navy between
August 1973 and June 1975. In August 2006, she submit-
ted a claim for entitlement to service connection for
PTSD. She alleged that she was sexually assaulted
during active duty by a superior officer. The record shows
that she did not report the assault. None of her service
records show any complaint, diagnosis, or treatment for
any psychiatric distress or sexual trauma.
The Department of Veterans Affairs (VA) examined
Ms. Berry on two occasions. After the first examination,
the examiner diagnosed Ms. Berry with several major
psychiatric disorders but noted that she could not com-
ment on whether Ms. Berry’s record supported a service
connection for PTSD. After the second examination, the
examiner noted Ms. Berry had a history of sexual attacks
and diagnosed Ms. Berry with PTSD.
According to VA regulations, a veteran seeking ser-
vice connection for PTSD relating to sexual assault must
*The
Honorable Dee V. Benson, United States District
Court of Utah, sitting by designation.
JANET BERRY v. SHINSEKI 3
provide corroborating evidence of the assault. 38 C.F.R. §
3.304(f). In order to assist Ms. Berry in making her case,
the VA submitted a request to the U.S. Joint Service
Records Research Center and the Naval Criminal Investi-
gation Service seeking information on any possible as-
saults. The requests returned no results, and the VA
ultimately found it was unable to verify Ms. Berry’s
claimed stressors. Ms. Berry appealed.
The Board of Veterans’ Appeals denied Ms. Berry’s
entitlement to service connection for both a low back
disorder and for PTSD. With respect to the PTSD claim,
the Board considered 38 C.F.R. § 3.304(f). Ms. Berry had
been diagnosed with PTSD but the record contained no
verified PTSD stressors for the claimed in-service sexual
assault. The Board found no corroborating evidence of
her assault due to Ms. Berry’s inconsistent testimony and
the lack of support in the record. Ms. Berry appealed to
the Veterans Court which affirmed the Board, and this
appeal followed.
II.
This court’s jurisdiction to review Veterans Court de-
cisions is defined by 38 U.S.C. § 7292. This court has
exclusive jurisdiction to interpret statutory provisions and
reviews the Veterans Court’s statutory interpretations
without deference. 38 U.S.C. § 7292(c); Cook v. Principi,
353 F.3d 937, 938 (Fed. Cir. 2003). Absent a constitution-
al issue, this court lacks authority to review challenges to
factual determinations or challenges to an application of
law to fact. 38 U.S.C. § 7292(d)(2) (“Except to the extent
that an appeal under this chapter presents a constitu-
tional issue, the Court of Appeals 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.”); Cook, 353 F.3d at 938–39. Although this court has
jurisdiction to review a “rule of law,” including a rule
established by precedent of the Veterans Court, it may
4 JANET BERRY v. SHINSEKI
not review the application of law to the facts of a particu-
lar case. See Willsey v. Peake, 535 F.3d 1368, 1371–72
(Fed. Cir. 2008); see also Bastien v. Shinseki, 599 F.3d
1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing
of evidence and the drawing of appropriate inferences
from it are factual determinations committed to the
discretion of the fact-finder. We lack jurisdiction to
review these determinations.”).
Ms. Berry does not appeal any interpretation of law or
regulation. Instead, she characterizes her appeal as one
involving a constitutional question. However, she does
not present a constitutional issue upon which this court
has jurisdiction. Labeling a case as a “constitutional
question” is not sufficient. Helfer v. West, 174 F.3d 1332,
1335 (Fed. Cir. 1999). Ms. Berry’s contentions are best
characterized as dispute over whether she proved a ser-
vice connection for her PTSD with corroborating evidence.
However, the Board and the Veterans Court reviewed the
record and found no corroboration under 38 C.F.R. §
3.304(f). This court has no jurisdiction to review these
factual determinations. 38 U.S.C. § 7292(d)(2).
Ms. Berry also asks this court to appoint counsel to
represent her as her previous counsel withdrew from her
case. Appellant’s Br. 10. This court cannot grant her
request because there is generally no right to counsel in
civil cases. See Pitts v. Shinseki, 700 F.3d 1279, 1283–86
(Fed. Cir. 2012).
III.
Ms. Berry appeals questions of fact. This court has no
jurisdiction over such questions.
DISMISSED
No Costs.