NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES E. CLAYTON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1402
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-4320, Judge Coral Wong Pi-
etsch.
______________________
Decided: May 9, 2019
______________________
JAMES E. CLAYTON, Lubbock, TX, pro se.
ISAAC B. ROSENBERG, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.; MEGHAN ALPHONSO, Y. KEN LEE, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 CLAYTON v. WILKIE
______________________
Before PROST, Chief Judge, LOURIE and BRYSON, Circuit
Judges.
PER CURIAM.
Mr. James E. Clayton appeals from a decision of the
United States Court of Appeals for Veterans Claims (the
“Veterans Court”), which affirmed a determination of the
Board of Veterans’ Appeals (the “Board”) denying Clayton
service connection for his back disability. See Clayton v.
Wilkie, No. 17-4320,
2018 WL 6272446 (Vet. App. Nov. 30,
2018) (“Decision”). Clayton challenges the Veterans
Court’s review of the evidence of service connection, and he
further argues that the Veterans Court failed to accord him
the benefit of the doubt. We lack jurisdiction to decide such
issues, so we dismiss the appeal.
BACKGROUND
Clayton served in the United States Army from June
1979 to January 1980 as a cannon crewman. Neither his
enlistment examination in June 1978 nor his separation
examination in December 1979 noted any back problems.
In January 2004, Clayton filed a claim at the Department
of Veterans Affairs (“VA”), seeking benefits for a back con-
dition that he claims was service-connected. The regional
office denied his claim, he chose not to appeal to the Board,
and the denial thus became final. Clayton was thereafter
diagnosed with lumbar radiculopathy due to spinal steno-
sis. In 2008, he requested reopening of his claim and newly
asserted to the regional office that lifting artillery during
his service aggravated a congenital birth defect, resulting
in his present back condition.
The regional office denied Clayton’s reopened claim,
and he then appealed to the Board, arguing that the VA
had failed to assist him by locating his service records. The
Board sustained the denial of service connection because it
found Clayton’s assertions that his back condition began in
CLAYTON v. WILKIE 3
service could not outweigh documentation of his “normal
spine and musculoskeletal system at separation.” In re
Clayton, No. 10–21 784, slip op. at 10 (Bd. Vet. App. May
5, 2014) (“Board Decision I”). The Board also noted that
Clayton’s complaints followed an injury in 1996 from lifting
a refrigerator, a 2007 work-related injury, and a back and
neck injury caused by a car accident in 2007.
Id.
The Veterans Court vacated the Board’s decision, hold-
ing that the Board erred in finding that the VA met its duty
to assist and in failing to sufficiently address Clayton’s ar-
gument that his congenital back condition was aggravated
by his service, and it remanded the case to the Board. See
Clayton v. McDonald, No. 14-1826, slip op. at 10 (Vet. App.
Nov. 20, 2015). On remand, the Board credited a VA ex-
aminer’s determination that Clayton’s back condition was
not congenital and further concluded that the VA had sat-
isfied its duty to assist Clayton in finding the records he
had requested. In re Clayton, No. 10–21 784, slip op. at 5–
6 (Bd. Vet. App. Aug. 29, 2017) (“Board Decision II”). Clay-
ton then again appealed to the Veterans Court. The Veter-
ans Court found that Clayton failed to show that the VA
examination, or the Board’s reliance upon its findings over
Clayton’s lay statements, was clearly erroneous, and it af-
firmed the Board’s decision. See Decision,
2018 WL
6272446, at *2–3.
Clayton then filed an appeal to this court.
DISCUSSION
The scope of our review in an appeal from the Veterans
Court is limited. We may review a decision with respect to
a rule of law or interpretation of a statute or regulation
that was relied upon by the Veterans Court in making its
decision. 38 U.S.C. § 7292(a). But, except with respect to
constitutional issues, this Court “may not review (A) a chal-
lenge to a factual determination, or (B) a challenge to a law
or regulation as applied to the facts of a particular case.”
4 CLAYTON v. WILKIE
Id. § 7292(d)(2); see also Sneed v. McDonald,
819 F.3d 1347,
1350–51 (Fed. Cir. 2016).
Clayton makes three principal arguments on appeal:
the Veterans Court wrongly weighed the evidence of his
service connection; it should have found that the VA failed
to meet its statutory obligation to assist him; and it failed
to give him the benefit of the doubt. We have held that
each of these arguments presents an issue that lies outside
of our statutory jurisdiction. See Barney v. Shinseki, 464
F. App’x 884, 885 (Fed. Cir. 2012) (no jurisdiction “to review
the factual determination of service connection” (citing
Johnson v. Derwinski,
949 F.2d 394, 395 (Fed. Cir. 1991)));
Glover v. West,
185 F.3d 1328, 1333 (Fed. Cir. 1999) (no ju-
risdiction to review whether the duty to assist was
breached in a particular case because it involves applica-
tion of law to fact); Ferguson v. Principi,
273 F.3d 1072,
1076 (Fed. Cir. 2001) (no jurisdiction to review whether
benefit of the doubt was correctly applied in any given
case). We therefore conclude that we lack jurisdiction to
hear his appeal.
The government contends in the alternative that Clay-
ton waived each of these arguments by failing to make
them to the Veterans Court. In view of our conclusion that
we lack jurisdiction, we need not reach the government’s
waiver arguments.
CONCLUSION
We have considered Clayton’s other arguments but find
them unpersuasive. For the foregoing reasons, we dismiss
the appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
