NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SOMBRIA COLEY,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1336
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3301, Judge Margaret C. Bart-
ley, Judge William S. Greenberg, Judge Michael P. Allen.
______________________
Decided: April 5, 2019
______________________
SOMBRIA COLEY, Hazlehurst, MS, pro se.
DANIEL B. VOLK, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK SCADDEN, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 COLEY v. WILKIE
______________________
Before LOURIE, DYK, and O’MALLEY, Circuit Judges.
PER CURIAM.
Sombria Coley (“Coley”) appeals from the decision of
the United States Court of Appeals for Veterans Claims
(the “Veterans Court”) affirming the Board of Veterans’ Ap-
peals’ (the “Board”) decision denying service connection for
her severe left knee degenerative joint disease. Coley v.
O’Rourke, No. 16-3301,
2018 WL 3006170 (Vet. App. June
15, 2018) (“Decision”). Coley substantively challenges only
the Veterans Court’s assessment of the evidence of service
connection. Because we lack jurisdiction to reweigh this
evidence, we dismiss.
BACKGROUND
Coley served in the United States Air Force from 1980
to 1986. During her service, Coley was bitten by an insect,
likely a spider, on her left thigh. The bite caused swelling
and redness in her thigh, and she was treated with antibi-
otics. Following treatment, Coley did not experience fur-
ther left leg or knee issues until she was diagnosed in 2011
with severe left knee degenerative joint disease (“DJD”).
Coley sought service connection for her DJD, contend-
ing that it was the result of a knee infection following the
spider bite. The Regional Office in Jackson, Mississippi,
denied her claim. Coley appealed to the Board and testified
at a hearing in support of her claim. Based on Coley’s med-
ical records, the Board acknowledged that Coley was bitten
by a spider but found that there was no evidence of a knee
infection and that Coley did not report any left knee prob-
lems at the termination of her service. In re Coley, No. 13-
29 004, slip op. at 8 (Bd. Vet. App. Jan. 5, 2016) (“Board
Decision”).
The Board also considered the assessments of two Vet-
erans Affairs (“VA”) examiners as well as Coley’s
COLEY v. WILKIE 3
testimony. The first examiner determined that it was less
likely than not that the DJD was related to the spider bite
because (1) there was no record of tissue necrosis or de-
struction after the bite and (2) the antibiotic resolved the
immediate effects of the bite.
Id. at 8–9. In response, Coley
submitted internet research indicating that joint infections
can cause later onset of arthritis. The VA then sought a
second examination of the medical records by an orthopedic
surgeon. While the second examiner agreed with Coley
that an infected joint could lead to later-arising arthritis,
he found no record evidence that Coley ever had such an
infection during her service.
Id. at 9. Further, this exam-
iner found that Coley’s medical records only reported spi-
der bite complications with her thigh, not her knee.
Id.
Consistent with the first examiner, the second examiner
found no link between the spider bite and Coley’s DJD.
Id.
at 10. After considering this evidence, the Board held
Coley did not prove by preponderant evidence that her DJD
was service related.
Id. at 11–12. The Board also rejected
Coley’s claims of service connection for disabilities second-
ary to her DJD, and, upon its own inquiry, found no record
support for presumptive service connection.
Id.
Coley appealed to the Veterans Court, which affirmed
in a single-judge decision. The Veterans Court held that
the Board did not clearly err in crediting the assessments
of the two VA medical examiners that Coley’s DJD was not
service connected. Decision,
2018 WL 3006170, at *2.
Coley moved for a panel decision. The Veterans Court
granted the motion and upheld the single-judge decision.
Coley again moved for the Veterans Court to reconsider,
which the court construed as a motion for full-court review
and denied. Coley then appealed to this court.
DISCUSSION
The scope of our review in an appeal from the Veterans
Court is limited. We may review the validity of a decision
with respect to a rule of law or interpretation of a statute
4 COLEY v. WILKIE
or regulation that was relied upon by the Veterans Court
in making its decision. 38 U.S.C. § 7292(a). Except with
respect to constitutional issues, this Court “may not review
(A) a challenge to a factual determination, or (B) a chal-
lenge to a law or regulation as applied to the facts of a par-
ticular case.”
Id. § 7292(d)(2).
Coley argues that the Veterans Court erred in denying
service connection for her DJD and that the VA examiners
made multiple mistakes. She also contends that the Board
misapplied 38 C.F.R. § 3.159(a)(2) in evaluating her testi-
mony and violated her constitutional rights.
The government responds that the Veterans Court’s
decision involved no question regarding the validity of a
statute or regulation and no constitutional issue. As Coley
only challenges factual matters, the government argues
that we lack jurisdiction over her appeal.
We agree with the government that we lack jurisdic-
tion. Coley primarily challenges the factual basis of the
Veterans Court’s holding of no service connection. Where,
as here, service connection turns entirely on weighing the
VA examiners’ medical evaluations against Coley’s testi-
mony, and not on any statutory or regulatory presump-
tions, it presents a quintessential factual inquiry outside
our limited jurisdiction. See, e.g., Barney v. Shinseki, 464
F. App’x 884, 885 (Fed. Cir. 2012) (citing Johnson v. Der-
winski,
949 F.2d 394, 395 (Fed. Cir. 1991)); cf. Lennox v.
Principi,
353 F.3d 941, 945 (Fed. Cir. 2003) (evaluation of
presumptive service connection may entail interpretation
of statutes or regulations).
Coley further argues that the Veterans Court misap-
plied § 3.159(a)(2), which defines competent lay evidence,
but the court did not interpret that regulation. Although
the Veterans Court did conclude that Coley was not com-
petent to render a medical opinion about her DJD, Deci-
sion,
2018 WL 3006170, at *2, it did not question the
Board’s finding that Coley was competent to provide lay
COLEY v. WILKIE 5
testimony about the circumstances surrounding the spider
bite, Board Decision, slip op. at 11. The court held only
that the Board did not clearly err in crediting the two VA
medical examiners’ assessments over Coley’s testimony re-
garding the nexus between her spider bite and her DJD.
Decision,
2018 WL 3006170, at *2. We lack jurisdiction to
review that factual judgment.
Coley also alleges that the Veterans Court made vari-
ous constitutional errors. We disagree. The court did not
interpret the Constitution in its decision. And while Coley
accuses the court of racial and gender discrimination in vi-
olation of the Fourteenth Amendment, her only basis for
that charge is the court’s denial of service connection on
these facts. Rephrasing a factual challenge as a constitu-
tional one is not enough to present a non-frivolous consti-
tutional question. Belton v. Shinseki, 524 F. App’x 703, 706
(Fed. Cir. 2013).
CONCLUSION
We have considered Coley’s remaining arguments but
find them unpersuasive. For the foregoing reasons, we dis-
miss the appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
