Johnson v. Gibson , 566 F. App'x 1004 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
REGINALD D. JOHNSON,
Claimant-Appellant,
v.
SLOAN D. GIBSON,
Acting Secretary of Veterans Affairs
Respondent-Appellee.
______________________
2014-7057
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2230, Judge William Green-
berg.
______________________
Decided: July 11, 2014
______________________
REGINALD D. JOHNSON, of Birmingham, Alabama, pro
se.
ERIC E. LAUFGRABEN, 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, ROBERT E. KIRSCHMAN, JR., Director,
and CLAUDIA BURKE, Assistant Director. Of counsel on
2 JOHNSON v. GIBSON
the brief were DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, and AMANDA R. BLACKMON, Attorney, Unit-
ed States Department of Veterans Affairs, of Washington,
DC.
______________________
Before LOURIE, LINN, and O’MALLEY, Circuit Judges.
PER CURIAM.
Reginald D. Johnson (“Johnson”) appeals from the de-
cision of the United States Court of Appeals for Veterans
Claims (“the Veterans Court”), affirming the decision of
the Board of Veterans’ Appeals (“the Board”) denying
Johnson’s claim for benefits after finding that he was not
entitled to service connection for low back disability. See
Johnson v. Shinseki, No. 12-2230, 2013 WL 6825562 (Vet.
App. Dec. 27, 2013) (“Opinion”). Because Johnson’s
arguments on appeal concern only challenges to factual
determinations and the application of statutes to the facts
of this case, we lack jurisdiction to decide Johnson’s
appeal and dismiss.
I. ANALYSIS
Johnson first argues that the Board ignored 38 U.S.C.
§ 5107(b), which requires that “[w]hen there is an approx-
imate 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 claim-
ant.” A January 2011 examination by the Department of
Veterans Affairs (“VA”) concluded that Johnson’s low back
disability was service connected, however a September
2011 VA examination—the only examination that consid-
ered an automobile accident in which Johnson was in-
volved, his lack of low-back-pain complaints between 1982
and 1987, and an intervening 1998 injury—concluded
that the low back disability was not service related. The
Board concluded that the September 2011 VA examina-
tion therefore was more probative and that therefore the
JOHNSON v. GIBSON 3
evidence in favor of Johnson’s claim was not equivalent to
the evidence against his claim. Opinion at 4. Because the
evidence was not in “equipoise,” Section 5107(b) does not
apply. Fagan v. Shinseki, 572 F.3d 1282, 1287 (Fed. Cir.
2009).
Johnson challenges not the validity or interpretation
of Section 5107, but rather how the Board applied it to the
facts of this case. Congress has instructed that this court
“may not review . . . a challenge to a law or regulation as
applied to the facts of a particular case.” Wanless v.
Shinski, 618 F.3d 1333, 1336 (Fed. Cir. 2010). A chal-
lenge of the Board’s determination itself—that the pre-
ponderance of the evidence is against Johnson’s claim and
that therefore Section 5107(b) is inapplicable—is solely a
challenge of the application of Section 5107(b) to the facts
of the case. See Ferguson v. Principi, 273 F.3d 1072, 1076
(Fed. Cir. 2001). We therefore lack jurisdiction over this
challenge.
Johnson next argues that the Board failed to consider
all of the evidence. Johnson contends that the Board,
while noting that he complained of hearing loss, head
injury, and leg cramps at his separation examination, did
not mention his “‘chronic’ low back pain.” Appellant’s Br.
6. However, the Board explicitly recognized Johnson’s
1982 complaints of low back pain and that at his 1987
separation examination, Johnson indicated that he did
not suffer from “recurrent back pain.” Opinion at 2; J.A.
10–11; J.A. 40. The Board then detailed the subsequent
medical examinations and explained why it concluded the
September 2011 examination was the most probative
examination Johnson received. Opinion at 4; J.A. 11–15.
Here again, Johnson’s challenge is outside of our ju-
risdiction. Considering Johnson’s contention—that the
Board failed to comply with 38 U.S.C. § 7104(d)(1), which
requires that the Board provide a “written statement of
the Board’s findings and conclusions . . . on all material
4 JOHNSON v. GIBSON
issues of fact and law presented on the record”—is some-
thing that “cannot be performed without reviewing the
application of the law to facts.” Cook v. Principi, 353 F.3d
937, 941 (Fed. Cir. 2003). Such a review is outside of our
jurisdiction. Id.
II. CONCLUSION
For the foregoing reasons, we lack jurisdiction over
Johnson’s appeal and therefore dismiss.
DISMISSED
III. COSTS
Each party shall bear its own costs.