Kalan v. Shinseki , 546 F. App'x 958 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID K. KALAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7132
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1533, Chief Judge Bruce E.
Kasold.
______________________
Decided: December 4, 2013
______________________
DAVID K. KALAN, of Pahrump, Nevada, pro se.
WILLIAM J. GRIMALDI, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
CLAUDIA BURKE, Assistant Director. Of counsel on the
brief was DAVID J. BARRANS, Deputy Assistant General
2 KALAN v. SHINSEKI
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before LOURIE, DYK, and TARANTO, Circuit Judges.
PER CURIAM.
David K. Kalan (“Kalan”) appeals from the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“the Board”) denying entitlement to
service connection for a left hip disorder. Kalan v.
Shinseki, No. 12-1533, 2013 WL 2944880 (Vet. App. June
14, 2013). For the reasons that follow, we dismiss for lack
of jurisdiction.
BACKGROUND
Kalan served on active duty in the United States Ar-
my from September 1965 to July 1967. In November
2006, Kalan filed a claim for entitlement to service con-
nection for a hip disorder. Kalan maintained that he
injured his left hip by falling from a truck during his
service. Neither Kalan’s service medical records nor his
separation reports of medical examination and history
indicate that he received a hip-related injury while in
service. In March 2007, the Department of Veterans
Affairs Regional Office in Reno, Nevada issued a rating
decision denying Kalan’s claim for service connection. In
re Kalan, No. 08-11 360, at 2, 5 (Bd. Vet. App. Jan. 23,
2012) (“Board Decision”). Kalan appealed that determi-
nation to the Board.
In January 2012, the Board denied service connection
for Kalan’s hip disorder. Board Decision at 16. The
Board found that the preponderance of the evidence was
against service connection for Kalan’s claimed injuries.
Id. The Board found that, although the evidence of record
was divided, the evidence supporting service connection
KALAN v. SHINSEKI 3
was not persuasive and was inconsistent, and that the
medical evidence was not based on the record or support-
ed by sound rationale. Id. at 15.
Kalan requested review of the Board decision by the
Veterans Court, arguing that the Board incorrectly
weighed the evidence and did not apply the benefit of the
doubt rule. Id. at *2. The court affirmed the Board’s
decision. Kalan, 2013 WL 2944880, at *1. The Veterans
Court held, inter alia, that the Board’s finding that the
preponderance of the evidence was against service con-
nection was not clearly erroneous and, accordingly, the
benefit of the doubt rule did not apply. Id. at *2 (citing
Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001)).
Kalan timely appealed to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited 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.”
Kalan’s main argument is that the Veterans Court
erred in its application of the benefit of the doubt rule,
which requires the Secretary to consider all information of
record, and, if “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 the claimant.” 38 U.S.C. § 5107(b).
However, the benefit of the doubt rule is inapplicable
“where the Board determines that the preponderance of
the evidence weighs against the veteran’s claim.” Fagan
4 KALAN v. SHINSEKI
v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). The
doctrine “is not a means of reconciling actual conflict or a
contradiction in the evidence.” 38 C.F.R. § 3.102.2. The
doctrine applies when the evidence is in “approximate
balance” or “almost exactly equal.” Ortiz, 274 F.3d at
1364.
Kalan asserts that the preponderance of the evidence
was in his favor and that the Board erred by incorrectly
weighing that evidence. Kalan is essentially challenging
the Board’s application of the benefit of the doubt rule,
not the Board’s interpretation of it. Kalan’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 38
U.S.C. § 7292(d)(2).
Kalan also argues that the Veterans Court violated
his 14th Amendment right to equal protection under the
law. However, Kalan does not provide an adequate
explanation for the way the Veterans Court violated his
14th Amendment rights. Without an explanation to
provide an adequate basis for his claim, it is a constitu-
tional claim in name only and outside of our jurisdiction.
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (find-
ing invocation of a constitutional label does not establish
jurisdiction).
We have considered Kalan’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, we must dismiss for lack of jurisdiction.
DISMISSED
COSTS
No costs.