Reed v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WADE REED,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7081
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3163, Chief Judge Bruce E.
Kasold.
______________________
Decided: September 16, 2013
______________________
WADE REED, of Denmark, South Carolina, pro se.
SCOTT SLATER, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and SCOTT D. AUSTIN, Assistant Director. Of counsel
on the brief were DAVID J. BARRANS, Deputy Assistant
2 REED v. SHINSEKI
General Counsel, and ANNA ELAZAN, Attorney, United
States Department of Veterans Affairs, of Washington,
DC.
______________________
Before RADER, Chief Judge, LINN, and REYNA, Circuit
Judges.
PER CURIAM.
Wade Reed appeals pro se from the decision of the
U.S. Court of Appeals for Veterans Claims affirming a
decision by the Board of Veterans’ Appeals (“Board”) that
denied benefits for a certain groin disorder.
BACKGROUND
Mr. Reed served on active duty from May 1971 to
February 1973. Service treatment records indicate that
Mr. Reed reported groin pain in June 1971. In 1972, Mr.
Reed sought treatment for what he described as a hernia
and a sexually transmitted disease. He was diagnosed
with right inguinal adenopathy (swollen lymph nodes)
and condylomata acuminate (an STD). Before Mr. Reed
separated from the service, a February 1973 statement of
condition also indicated that he was suffering from groin
pain and that his STD would require follow-up treatment.
Post-service records reflect that Mr. Reed complained
of groin pain in January 2002, November 2005, May 2006,
and July 2006. During a VA examination in April 2007,
Mr. Reed again complained of left groin pain, which he
maintained he had been experiencing since his active
duty service. Despite Mr. Reed’s subjective complaints,
no objective or clinical evidence supported a diagnosis of
inguinal ring dilation or any other groin disorder.
Mr. Reed filed a claim for service connection for left
inguinal ring dilation as a residual effect of a ruptured
hernia. In 2008, the Board denied Mr. Reed’s claim. On
appeal, the Court of Appeals for Veterans Claims affirmed
REED v. SHINSEKI 3
the Board’s decision with respect to Mr. Reed’s ring
dilation claim, but remanded for the Board to address the
full scope of Mr. Reed’s claim with respect to groin pain.
During a September 2010 VA examination, the medi-
cal examiner acknowledged Mr. Reed’s subjective com-
plaints of right groin pain and considered his medical
history, but noted that Mr. Reed did not exhibit swelling,
infection, abnormality, or tenderness during the examina-
tion. As a result, the examiner reported that Mr. Reed’s
condition was benign and diagnosed a “history of infected
inguinal adenopathy in service in 1972 currently with no
groin issues at this time.” Joint App’x 40–41. Based on
his review of Mr. Reed’s file and the results of the exami-
nation, the VA examiner opined that Mr. Reed did not
suffer from a current groin disorder.
After receiving the examiner’s report, the Board found
that there was “no credible or competent evidence that
the Veteran has a current diagnosis of a groin disorder at
any time during the appeals process.” In re Reed, No. 06-
34 650, slip op. at 3 (B.V.A. Oct. 11, 2011). Accordingly,
the Board denied Mr. Reed’s claim. The Court of Appeals
for Veterans Claims affirmed, concluding that the Board
properly applied the law and that it did not err by failing
to obtain certain documents relating to the reasons for
Mr. Reed’s discharge. Mr. Reed appeals to this court. We
have jurisdiction pursuant to 38 U.S.C. § 7292(a), (c).
DISCUSSION
Our jurisdiction to review decisions of the Court of
Appeals for Veterans Claims is strictly limited by statute.
38 U.S.C. § 7292. We have jurisdiction over “all relevant
questions of law, including interpreting constitutional and
statutory provisions.” 38 U.S.C. § 7292(d)(1). We lack
jurisdiction, however, over any “challenge to a factual
determination” or “challenge to a law or regulation as
applied to the facts of a particular case” absent a constitu-
tional issue. 38 U.S.C. § 7292(d)(2). We therefore gener-
4 REED v. SHINSEKI
ally lack jurisdiction to review challenges to the Board’s
factual determinations. See, e.g., Johnson v. Derwinski,
949 F.2d 394, 395 (Fed. Cir. 1991).
The government argues that we lack jurisdiction to
decide the issues Mr. Reed raises in this appeal because
they are factual in nature and Mr. Reed appears to con-
cede as much in his brief. Mr. Reed contends that the
Court of Appeals for Veterans Claims erred when it failed
to instruct the Board to obtain documents related to the
reason for his discharge, AR 635-200 SPN 28B. Reading
Mr. Reed’s informal brief liberally, he is essentially argu-
ing that the Board failed to fulfill its duty to assist the
veteran by not obtaining certain documents. See 38
U.S.C. § 5103A(b)(1) (“[T]he Secretary shall make reason-
able efforts to obtain relevant private records that the
claimant adequately identifies to the Secretary.”). To the
extent Mr. Reed is asking us to determine the scope of the
duty to assist, this is a legal issue that we have jurisdic-
tion to decide under § 7292(d)(1). See Beasley v. Shinseki,
709 F.3d 1154, 1157 (Fed. Cir. 2013).
We must decide whether the Board erred by failing to
obtain the documents Mr. Reed identified. Following Mr.
Reed’s VA medical examination in September 2010, the
Board found that there was “no credible or competent
evidence that the Veteran has a current diagnosis of a
groin disorder at any time during the appeals process.”
Joint App’x 35. The existence of a current disability is a
necessary prerequisite for a compensable claim for VA
disability benefits. See Degmetrich v. Brown, 104 F.3d
1328, 1332 (Fed. Cir. 1997). Although there is evidence of
subjective complaints of pain, we are unable to upset the
Board’s factual finding of no current disability. See
§ 7292(d)(2). Furthermore, we agree with the Court of
Appeals for Veterans Claims that the relevance of the
documents identified by Mr. Reed is unclear given that
they were created 40 years before his claim and involve a
discharge related matter. As such, the documents could
REED v. SHINSEKI 5
not demonstrate an error in the Board’s finding of no
current disability. Because the duty to assist requires
only reasonable efforts to obtain relevant records, we hold
that the Board did not err in failing to obtain the docu-
ments identified by Mr. Reed.
We have reviewed the record, considering Mr. Reed’s
other arguments, and conclude that the judgment of the
Court of Appeals for Veterans Claims should be affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.