Howlett v. Shinseki , 431 F. App'x 925 ( 2011 )

NOTE: This order is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
SCOTT A. HOWLETT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
2011-7003
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-2550, Judge Alan G.
Lance, Sr.
__________________________
ROBERT P. WALSH, of Battle Creek, Michigan, argued
for claimant-appellant.
COURTNEY S. MCNAMARA, Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-
sel on the brief were DAVID J. BARRONS, Deputy Assistant
General Counsel, and AMANDA R. BLACKMON, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________________
Before LINN, DYK, and PROST, Circuit Judges.
LINN, Circuit Judge.
2 HOWLETT v DVA
ORDER
Appellant, Scott A. Howlett (“Howlett”), appeals from
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) decision, Howlett v. Shinseki, No. 08-
2550 (C.A.V.C. July 7, 2010) (“Appeal”) affirming the
denial by the Board of Veterans’ Appeals (“Board”) of
Howlett’s claim for service connection, In the Appeal of
Howlett, No. 02-03 423A (B.V.A. Apr. 29, 2008) (“Board
Decision”). Because Howlett’s appeal presents purely
factual questions that we may not review, this court
dismisses the appeal for lack of jurisdiction.
I.
Howlett served on active duty in the United States
Army from February 18, 1987, through February 15,
1989. Howlett subsequently served as a vehicle repair-
man, where, while working underneath a truck, the
engine backfired into the muffler creating a very loud
noise. Later, Howlett suffered an in-service bicycle acci-
dent fracturing his tooth and causing other head injuries.
Howlett alleges that these two injuries caused him to
suffer hyperacusis (exceptionally acute hearing that may
be accompanied by ear pain). Howlett applied to the
Department of Veterans Affairs (VA) Regional Office for
service connection disability ratings for hyperacusis and
major depression and anxiety secondary to hyperacusis.
On April 29, 2008, the Board denied Howlett’s claims,
finding that he was “not a credible historian” and that the
service and post-service medical records “outweigh[ed] the
veteran’s contentions that the claimed disorders [we]re
related to his service.” Board Decision, slip op. at 5, 17.
On appeal, the Veterans Court found no evidence “that
the Board in any way misunderstood the facts of this case
or misapplied the law to them.” Appeal, slip op. at 3.
Accordingly, the Veterans Court affirmed the Board’s
decision. Howlett appeals to this court.
HOWLETT v DVA 3
II.
This court possesses limited jurisdiction to review de-
cisions by the Veterans Court. We have exclusive juris-
diction “to review and decide any challenge to the validity
of any statute or regulation or any interpretation thereof
. . . and to interpret constitutional and statutory provi-
sions, to the extent presented and necessary to a deci-
sion.” 38 U.S.C. § 7292(c). “Unless an appeal from the
Veterans Court ‘presents a constitutional issue,’ this court
‘may not review (A) challenge to a factual determination,
or (B) a challenge to a law or regulation as applied to the
facts of a particular case.’” Bastien v. Shinseki, 599 F.3d
1301, 1305 (Fed. Cir. 2010) (citing 38 U.S.C. § 7292(d)).
“In other words, except for constitutional issues, this court
has no jurisdiction to review the Veterans Court’s factual
determinations.” Id.A.
Howlett first argues that the Veterans Court “created
a new rule of law when it approved an erroneous legal
analysis by the Board.” Appellant Br. 20. Howlett alleges
that the Veterans Court created a new rule of law in
affirming the Board’s “haphazard credibility determina-
tion,” after which the Board allegedly declined “to con-
sider voluminous medical literature and clinical evidence
of record.” Id. at 21. Howlett further argues that the
Board violated the Federal Rules of Evidence—not appli-
cable to Veterans Court proceedings, Avgoustis v. Shin-
seki, 639 F.3d 1340, 1342-43 (Fed. Cir. 2011) (citing Fed.
R. Evid. 1101(a))—through “an unfavorable credibility
determination based primarily on supposition and specu-
lation” and “the admission of evidence which was not
relevant.” Appellant Br. 23, 26.
The government counters that Howlett’s appeal chal-
lenges only the Board’s “factual findings, credibility
determinations and weighing of evidence,” all of which
this court lacks jurisdiction to review. Appellee Br. 16.
According to the government, the Board did not limit its
4 HOWLETT v DVA
analysis to a credibility determination, but considered all
evidence of record, including “an extensive discussion of
the medical evidence for and against his claims.” Appel-
lee Br. 19.
The government is correct that the alleged errors in
the Board’s credibility determination and the Veterans
Court’s affirmance thereof amount to no more than an
argument that the Board erred in interpreting the facts.
After reviewing all the evidence, the Board found that
“the veteran’s assertions are uncorroborated or contra-
dicted by service records and service medical records to
such a degree that the Board finds that he is not a credi-
ble historian.” Board Decision, slip op. at 6. On review,
the Veterans Court stated:
[T]o the extent that appellant urges that the
Board failed to address any of the medical litera-
ture he submitted, such a discussion was unnec-
essary given that the Board found the appellant’s
testimony was not credible and that there was no
objective evidence that he actually suffered from
any pathology or disease of the ear. In other
words, in the absence of credible evidence of any
symptoms, the issue of causation was moot.
Appeal, slip op. at 3. Making such credibility determina-
tions and weighing the evidence are factual issues over
which this court lacks jurisdiction to review. See, eg.,
Bastien, 599 F.3d at 1305.
Howlett’s contention that the Veterans court created a
new rule of law, i.e., permitting the Board to ignore
certain favorable medical evidence after finding that a
veteran is not credible, is without merit. The Board is
presumed to have considered all evidence of record at the
time of the VA’s determination of service connection.
Gonzalez v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).
Nothing requires the Board to discuss every piece of
submitted evidence in its decision. Id. at 1380-81.
HOWLETT v DVA 5
[T]he plain language of [38 C.F.R. § 3.303(a)] re-
quires merely that determination as to service
connection be based on ‘review’ of the ‘entire evi-
dence’ of record. . . . ‘Review,’ we hold, is not syn-
onymous with ‘analyze and discuss’ . . . and the
regulation requires no specific reference in the de-
cision to every piece of evidence so reviewed.
Id. In making its credibility determination and consider-
ing the medical evidence, neither the Board nor the
Veterans Court created a new rule of law involving the
exclusion of evidence or otherwise.
Howlett’s argument that the Board violated the Fed-
eral Rules of Evidence is also without merit. Howlett
points primarily to the Board’s analysis of an unfavorable
March 2001 Social Security Administration (“SSA”)
disability determination, arguing that it was not relevant
because it was superseded by a subsequent October 2006
SSA disability determination ultimately granting bene-
fits. Howlett is incorrect that this was “the admission of
evidence that was not relevant.” First, the Federal Rules
of Evidence are not controlling in VA proceedings. Av-
goustis, 639 F.3d at 1342 (citing Fed. R. Evid. 1101(a)).
Second, as discussed above, the Board is presumed to
have considered all evidence before the VA; and, here,
both SSA decisions were in the record and mentioned in
the Board decision. Accordingly, the Board properly
considered the evidence of record, both favorable and
unfavorable.
B.
Howlett also alleges that the Board and Veterans
Court denied him due process of law in violation of the
Fifth Amendment to the U.S. Constitution by “[u]sing [a]
credibility determination [] to truncate review of the
favorable evidence of record absent notice to the claim-
ant.” Appellant Br. 38. Howlett’s constitutional claim is
without merit because, as discussed above, the Board did
not decline to review the favorable evidence of record.
6 HOWLETT v DVA
Instead, the Board reviewed all the evidence and found
that Howlett had presented no credible evidence that he
actually suffered from the alleged injury. This situation
is similar to Helfer v. West, 174 F.3d 1332 (Fed. Cir.
1999), where this court held that the veteran’s “constitu-
tional argument [wa]s that by ruling against him as it
did, the [Veterans Court] deprived him of a property
interest without due process of law.” Id. at 1335. Simi-
larly, here, “to the extent that [Howlett] has simply put a
‘due process’ label on his contention that he should have
prevailed . . . his claim is constitutional in name only.” Id.Because Howlett’s allegation, in substance, amounts to no
more than an allegation that the Board and Veterans
Court erroneously weighed the facts, it is constitutional in
name only, and this court lacks jurisdiction. Id. (“[The
veteran’s] characterization of that question as constitu-
tional in nature does not confer upon us jurisdiction that
we otherwise lack.”)
Howlett’s remaining arguments have been considered
but do not have any merit.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
July 29, 2011 /s/ Jan Horbaly
Date Jan Horbaly
Clerk