Hughs v. Dept. Of Veterans Affairs , 408 F. App'x 367 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOE D. HUGHS
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7021
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-1461, Judge William A.
Moorman.
____________________________
Decided: February 10, 2011
____________________________
JOE D. HUGHS, Osage City, Kansas, pro se.
DANIEL B. VOLK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director.
HUGHS v. DVA 2
__________________________
Before LOURIE, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Joe Hughs appeals the decision of the United States
Court of Appeals for Veterans Claims (the “Veterans
Court”) denying him service connection for injuries re-
lated to an initial head injury. Hughs v. Shinseki, No. 08-
1461 (Vet. App. Aug. 13, 2010). Because his challenges
are outside the scope of our jurisdiction, we dismiss.
BACKGROUND
Hughs served on active duty in the U.S. Army from
1972 to 1978. In 1976, Hughs fell from an armored per-
sonnel carrier and hit his head against a concrete floor.
He was thereafter diagnosed with a mild cerebral concus-
sion. After Hughs left the service, in 1979, he hit his head
while diving in a creek and broke his neck.
Hughs filed for disability benefits with a Regional Of-
fice of the Department of Veterans Affairs (“DVA”) in
January 2003, based on head injury residuals. His claim
was denied in December 2003 based on the DVA’s finding
that his head injury residuals were not related to his
military service, and he appealed to the Board of Veterans
Appeals. In the course of the proceedings before the DVA
and the Board of Veterans Appeals, a number of medical
reports were submitted, some by Hughs’ private physi-
cians and some solicited by the Board of Veterans Ap-
peals. Ultimately, Hughs’ claim was denied, and he
appealed that decision to the Veterans Court.
The Veterans Court affirmed the decision of the Board
of Veterans Appeals. In reaching its conclusion, the
Veterans Court rejected Hughs’ challenges concerning an
3 HUGHS v. DVA
engagement letter written to an independent medical
expert and the completeness of the expert’s report. Spe-
cifically, the court found that the letter of engagement did
not direct the independent medical expert to arrive at a
particular conclusion. It further found that the opinion of
the independent medical expert indicated that he had
sufficiently reviewed Hughs’ records, and the court re-
fused to re-weigh evidence or assess the credibility of the
different medical reports. In addition, the Veterans Court
found that the Board of Veterans Appeals had provided
an adequate explanation of its reasons for obtaining an
opinion from the independent medical expert. Next, the
Veterans Court explained that the Board of Veterans
Appeals was presumed to have considered the evidence
before it, even though it did not address every opinion in
the record, and that its treatment of lay evidence was
proper.
Hughs timely appealed to this court. Our jurisdiction
in appeals from the Veterans Court rests on 38 U.S.C.
§ 7292.
DISCUSSION
The scope of our review of a Veterans Court decision
is limited by statute. See 38 U.S.C. § 7292. Under section
7292(a), we may review a decision by the Veterans Court
with respect to its validity on “any statute or regulation . .
. or any interpretation thereof (other than a determina-
tion as to a factual matter) that was relied on by the
[Veterans] Court in making the decision.” Absent a
constitutional issue, we may not review challenges to
factual determinations or challenges to the application of
a law or regulation to facts. Id. § 7292(d)(2). We review
legal determinations without deference. See Bingham v.
Nicholson, 421 F.3d 1346, 1348 (Fed. Cir. 2005).
HUGHS v. DVA 4
Hughs argues that the Veterans Court erred in failing
to apply the “Caring for Veterans with Traumatic Brain
Injury Act,” a bill introduced in Congress to establish the
Committee on Care of Veterans with Traumatic Brain
Injury. See H.R. 1546, 111th Cong. § 2 (2009). Hughs
further argues that the Veterans Court did not apply
“Veterans Administration rule 309.89” or “VA own man-
date, 309.89,” 1 and did not properly consider what consti-
tutes a service connected disability. Hughs then
challenges the constitutionality of the proceedings before
the Board of Veterans Appeals, arguing that his rights to
equal treatment and due process were violated because
his wife was not allowed to question the judge during
those proceedings, and that he was discriminated against
for not being in a war zone when he was injured. Lastly,
Hughs challenges various factual determinations.
The government responds by arguing that we lack ju-
risdiction because Hughs is not challenging the interpre-
tation of a statute or regulation. Specifically, the
government argues that the legislation cited by Hughs is
not relevant to this case, as it is directed towards estab-
lishment of a committee, not to the disposition of individ-
ual cases. In addition, the government notes that H.R.
1546 is an unenacted bill, not a statute or a regulation,
and thus does not govern the actions of the DVA. The
government also argues that, contrary to Hughs’ asser-
tions, he is not raising any constitutional issues. The
government notes that Hughs did not raise his arguments
regarding due process and equal protection before the
Veterans Court, where he was represented by counsel. As
a result, the government argues that we do not have
jurisdiction over Hughs’ constitutional challenges and
1 It is unclear to what rule or mandate Hughs is
here referring. No such rule appears in his brief before
the Veterans Court or in that court’s opinion.
5 HUGHS v. DVA
that if we do, it should be declined for prudential reasons,
that the arguments were waived, and that, on the merits,
they fail.
We agree with the government that we do not have
jurisdiction over Hughs’ appeal. Hughs raises no chal-
lenge to the Veterans Court’s decision based on its inter-
pretation of a statute or regulation or the validity of any
statute or regulation that the court relied upon in making
its decision. Hughs’ arguments, rather, relate to an
unenacted bill; a rule or mandate (309.89), the source of
which we are unable to ascertain, but that was not refer-
enced or relied upon by the Veterans Court; constitutional
claims that were not raised below; and factual determina-
tions. These challenges do not fall within the scope of 38
U.S.C. § 7292.
Accordingly, we dismiss Hughs’ appeal for lack of ju-
risdiction.
DISMISSED
COSTS
No costs.