Lawrence v. Shinseki , 544 F. App'x 990 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THEODORE LAWRENCE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7118
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2049, Judge William A. Moor-
man.
______________________
Decided: November 8, 2013
______________________
THEODORE LAWRENCE, of Sherman, Texas, pro se.
ZACHARY J. SULLIVAN, 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
SCOTT D. AUSTIN, Assistant Director. Of counsel on the
brief were DAVID J. BARRANS, Deputy Assistant General
2 LAWRENCE v. SHINSEKI
Counsel and TRACEY P. WARREN, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
______________________
Before REYNA, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
The Board of Veterans’ Appeals denied Theodore
Lawrence’s claim for service-connected disability benefits
related to blindness, concluding that his condition had
existed before service and was not aggravated during it.
The Court of Appeals for Veterans Claims affirmed the
Board’s decision. Mr. Lawrence now seeks review in this
court, but he has not presented any issue that falls within
the scope of our limited jurisdiction to review decisions of
the Veterans Court. We therefore dismiss the appeal.
BACKGROUND
Mr. Lawrence served in the United States Army for
two years in the late 1960s. His entrance records indicate
that, when he enlisted, he had poor vision but his “cor-
rected” vision while wearing glasses was 20/20. During
service, he apparently experienced some vision trouble,
particularly at night. His separation records, however,
report that his distance vision was 20/20 and that he had
no eye trouble. Ten years later, in 1978, Mr. Lawrence
was formally diagnosed with retinitis pigmentosa—a
hereditary disease that gradually decreases an individu-
al’s field of vision and eventually leads to some degree of
blindness.
In 2004, Mr. Lawrence filed a claim for benefits with
the VA, alleging that his retinitis pigmentosa and result-
ing blindness were connected to his military service
because they had been aggravated by exposure to tear
gas. The Regional Office denied the claim, and Mr. Law-
rence appealed to the Board. Before reaching the merits,
however, the Board remanded the case twice for addition-
LAWRENCE v. SHINSEKI 3
al evidence. In response to those remand orders, Dr.
Shirley, a VA doctor, gave Mr. Lawrence an eye examina-
tion, issued an opinion about his condition, and then
supplemented that opinion—ultimately concluding that
Mr. Lawrence had retinitis pigmentosa when he entered
the Army and that the in-service worsening of the disease
was simply its natural progression. In 2009, upon consid-
eration of this and other evidence, including Mr. Law-
rence’s own testimony, the Board denied the claim.
Mr. Lawrence appealed to the Veterans Court, which
remanded the case for still more factual development.
This time, the VA sought and obtained an expert medical
opinion from a specialist—an ophthalmologist named Dr.
Katzin. Dr. Katzin was candid about the dearth of evi-
dence from the time of Mr. Lawrence’s service, but he also
explained that the “progression of retinitis pigmentosa is
so standard in every case” that the “details of the record”
were not necessary to describe the course of the disease.
In addition, Dr. Katzin confirmed that “it is in no way
possible for [tear] gas exposure to have any effect on the
retina,” so such exposure “was in no way related to the
development or progression or aggravation of the retinitis
pigmentosa.” Like Dr. Shirley, Dr. Katzin concluded that
“any worsening of the disease . . . during active duty was
due to the natural progress of the disease at its natural
rate.”
In 2011, the Board issued another decision denying
Mr. Lawrence’s claim for benefits. The Board began by
laying out the basic legal framework: because retinitis
pigmentosa was not mentioned on Mr. Lawrence’s en-
trance exam, he was entitled to a statutory presumption
that he was “in sound condition” at the time of enlistment,
but that presumption could be overcome by “clear and
unmistakable evidence demonstrat[ing] that the . . .
disease existed before acceptance and enrollment and was
not aggravated by such service.” 38 U.S.C. § 1111; see
Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
4 LAWRENCE v. SHINSEKI
Canvassing the evidence of record—including the VA
medical opinions and Mr. Lawrence’s testimony about his
pre-service symptoms and family history—the Board
found clear and unmistakable evidence that Mr. Law-
rence had retinitis pigmentosa before his military service
and that the disease was not aggravated beyond its natu-
ral progression during service. The Board then denied the
claim for benefits because a finding of service connection
“[wa]s not warranted.”
The Veterans Court affirmed. Lawrence v. Shinseki,
No. 11-2049, 2013 WL 1279010 (Vet. App. Mar. 28, 2013).
Mr. Lawrence, who was represented by counsel at the
time, alleged error in the Board’s reliance on the opinions
of Drs. Shirley and Katzin and in the Board’s treatment of
his lay evidence. The Veterans Court, however, deter-
mined that he had “not presented any [persuasive] argu-
ment . . . that the evidence, in combination, failed to
satisfy the clear and unmistakable evidence standard.”
Id. at *6. The Veterans Court subsequently denied recon-
sideration, Lawrence v. Shinseki, No. 11-2049, 2013 WL
2458776 (Vet. App. June 6, 2013), and Mr. Lawrence now
appeals.
DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is limited. See 38 U.S.C. § 7292. We have
jurisdiction to decide appeals insofar as they challenge a
decision of the Veterans Court with respect to a rule of
law, including the interpretation or validity of any statute
or regulation. Id. § 7292(a), (d)(1). We do not have juris-
diction to review a challenge to a factual determination or
a challenge to a law or regulation as applied to the facts of
a particular case, except to the extent an appeal presents
a constitutional issue. Id. § 7292(d)(2).
This appeal does not raise any issue that we have ju-
risdiction to decide. All along, Mr. Lawrence’s challenge
has centered on the adequacy of the government’s evi-
LAWRENCE v. SHINSEKI 5
dence to overcome the statutory presumption that he was
in sound condition when he enlisted in the Army. The
Board and the Veterans Court found the evidence suffi-
cient, and Mr. Lawrence has not alleged that any error of
law or constitutional violation infected those decisions.
As we stated in a similar case concerning retinitis pig-
mentosa, we cannot revisit “the question whether the
evidence in this case was sufficient to rebut the [statuto-
ry] presumption [of soundness], because that question
involves the application of a law or regulation . . . to the
facts of a particular case, which is a matter outside our
jurisdiction.” Harris v. West, 203 F.3d 1347, 1351 (Fed.
Cir. 2000).
In his informal brief to this court, Mr. Lawrence as-
serts that he asked for, but did not receive, a medical
examination from an independent, non-VA doctor. That
assertion cannot supply this court jurisdiction. First, we
see no indication that he raised such an argument in the
Veterans Court, and we generally do not consider argu-
ments made for the first time here. See, e.g., Forshey v.
Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002); Boggs v.
West, 188 F.3d 1335, 1337-38 (Fed. Cir. 1999). Second,
and in any event, Mr. Lawrence does not allege that the
VA had a legal duty to give him an independent medical
examination, or that the Veterans Court relied on an
erroneous rule of law in failing to award him one. Alt-
hough the VA has the authority to secure medical opin-
ions from independent experts, e.g., 38 U.S.C. §§ 5109,
7109, the decision not to do so in this case presents at
most a factual question about how the VA exercised its
discretion, a question that is outside our jurisdiction.
Accordingly, we find nothing in Mr. Lawrence’s passing
assertion that the VA failed to “honor” his request for an
independent medical examination to change our determi-
nation that we do not have jurisdiction over his appeal.
No costs.
6 LAWRENCE v. SHINSEKI
DISMISSED