Case: 22-1369 Document: 26 Page: 1 Filed: 06/09/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MINNIE L. SIMMONS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1369
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-7716, Senior Judge Robert N.
Davis.
______________________
Decided: June 9, 2022
______________________
MINNIE L. SIMMONS, Aberdeen, MS, pro se.
MATNEY ELIZABETH ROLFE, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY,
LOREN MISHA PREHEIM; CHRISTOPHER O. ADELOYE, BRIAN
D. GRIFFIN, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
Case: 22-1369 Document: 26 Page: 2 Filed: 06/09/2022
2 SIMMONS v. MCDONOUGH
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
Minnie L. Simmons, the surviving spouse of Army vet-
eran Robert E. Simmons, filed a claim for dependency and
indemnity compensation under
38 U.S.C. § 1310, claiming
the required service connection on the ground that Mr.
Simmons’s death due to myocardial infarction, hyperten-
sion, and lung cancer was caused by exposure to the Agent
Orange herbicide during his service in 1967 near the Ko-
rean demilitarized zone. The Department of Veterans Af-
fairs (VA) regional office denied her claim, and the Board
of Veterans’ Appeals affirmed the denial. The Court of Ap-
peals for Veterans Claims (Veterans Court) vacated the
Board decision for failing to consider certain evidence.
Simmons v. Wilkie, No. 19-2555,
2020 WL 2703094 (Vet.
App. May 26, 2020) (CAVC Remand Decision). On remand,
the Board again denied the claim, finding that even though
Mr. Simmons had served in Korea during a period in which
exposure to herbicides could be presumed, the presumption
was overcome by the evidence indicating that Mr. Simmons
himself was not exposed to Agent Orange. The Veterans
Court affirmed. Simmons v. McDonough, No. 20-7716,
2021 WL 4976670 (Vet. App. Oct. 27, 2021) (CAVC Final
Decision).
Mrs. Simmons appeals. But her only challenge is to the
factual determination that Mr. Simmons was not exposed
to Agent Orange. This court lacks jurisdiction to review
factual findings where, as here, no constitutional challenge
is presented. We therefore dismiss the appeal for lack of
jurisdiction.
I
Robert Simmons served in the Army, and he was sta-
tioned at Camp Hovey in Korea from January 1967 to
Case: 22-1369 Document: 26 Page: 3 Filed: 06/09/2022
SIMMONS v. MCDONOUGH 3
September 1967. Because of a court martial, he was con-
fined in a stockade at the Army Support Command from
July 18 to September 2, 1967. He departed Korea on Sep-
tember 3, 1967.
Mr. Simmons died in 2006. His death certificate lists
three causes of death: myocardial infarction, hypertension,
and lung cancer. After his death, Mrs. Simmons, in 2006,
applied for and obtained death pension benefits, but she
was denied dependency and indemnity compensation and
accrued benefits. In 2017, Mrs. Simmons applied again for
dependency and indemnity compensation. She argued that
Mr. Simmons’s death was due to Agent Orange exposure,
citing “VA regulations” that acknowledged that Camp
Hovey was near the Korean demilitarized zone where
Agent Orange was sprayed. Appx. 30. She also cited a
physician statement stating that Agent Orange exposure
“could have contributed to” Mr. Simmons’s health prob-
lems. Appx. 30; Appx. 38.
On April 19, 2018, the VA regional office denied her
claim. It determined that Mr. Simmons’s service in Korea
in 1967 preceded the period—April 1, 1968, to August 31,
1971—during which VA would presumptively concede ex-
posure to herbicides, and it also found that there was “no
evidence” that Mr. Simmons was exposed during service.
Appx. 37. Thus, VA found that the cause of Mr. Simmons’s
death was not connected to his military service, and it de-
nied Mrs. Simmons’s claim.
The Board affirmed the denial, but on May 26, 2020,
the Veterans Court vacated the Board’s decision and re-
manded the case because the Board had not adequately
considered the physician statement in its analysis. CAVC
Remand Decision,
2020 WL 2703094, at *2.
On remand, the Board again found no service connec-
tion. The Board recognized that intervening legislation,
Blue Water Navy Vietnam Veterans Act of 2019, Pub. L.
No. 116-23, § 3(a),
133 Stat. 966, 969 (codified at 38 U.S.C.
Case: 22-1369 Document: 26 Page: 4 Filed: 06/09/2022
4 SIMMONS v. MCDONOUGH
§ 1116B), had expanded the period of presumptive herbi-
cide exposure to begin on September 1, 1967—two days be-
fore Mr. Simmons left Korea—but based on the fact that
Mr. Simmons had been confined to the stockade until the
day before he left, the Board concluded that Mr. Simmons
had not been exposed to herbicides. Appx. 46–48. The
Board also acknowledged the physician statement but
granted it “no probative weight” because it was based only
on Mr. Simmons’s own statements that he had been ex-
posed to Agent Orange, not on a medical examination.
Appx. 48. Because it found that the evidence overcame the
presumption of herbicide exposure, the Board also con-
cluded that the presumption of service connection (based
on exposure) was not applicable. Appx. 48–49. The Board
also determined that service connection could not be found
without the aid of the presumption, stressing that the rec-
ord showed that Mr. Simmons’s causes of death (myocar-
dial infarction, hypertension, and lung cancer) arose long
after his separation from service. Appx. 49. It therefore
denied Mrs. Simmons’s claim.
The Veterans Court affirmed. It upheld the Board’s
finding that Mr. Simmons had not been exposed to herbi-
cides during his service and therefore declined to apply the
presumption of service connection. 1 CAVC Final Decision,
1 Mrs. Simmons asserted, and the Veterans Court
accepted, that hypertension is one of the conditions for
which service connection may be presumptively granted if
herbicide exposure is demonstrated (or presumed). See
CAVC Final Decision,
2021 WL 4976670, at *3 (citing
38
U.S.C. § 1116(b)(1) and
38 C.F.R. § 3.309(e)). The Secre-
tary contests that assertion on appeal. Sec’y Informal Br.
6 n.2, 10. Because the Veterans Court’s conclusion of no
service connection is based on its agreement with the
Board’s finding that Mr. Simmons was not exposed to herb-
icides, we need not reach this issue.
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SIMMONS v. MCDONOUGH 5
2021 WL 4976670, at *3–4. Mrs. Simmons filed a timely
notice of appeal.
II
This court’s jurisdiction to review decisions of the Vet-
erans Court, defined by
38 U.S.C. § 7292, is limited. We
have jurisdiction to decide an appeal insofar as it presents
a challenge to a Veterans Court’s decision regarding a rule
of law, including a decision about the interpretation or va-
lidity of any statute or regulation.
Id. § 7292(a), (d)(1). We
do not have jurisdiction to review a challenge to a factual
determination or a challenge to the application of a law or
regulation to the facts of a particular case, except to the
extent that an appeal presents a constitutional issue. Id.
§ 7292(d)(2).
Mrs. Simmons challenges only the Veterans Court’s de-
termination that Mr. Simmons was not exposed to herbi-
cide during service. She argues that the Veterans Court
“overlooked the evidence” showing that Mr. Simmons was
purportedly exposed to Agent Orange, including his medi-
cal history and own reports of exposure. Simmons Informal
Br. 1–2. She also argues that Camp Hovey was within the
Korean demilitarized zone and that Mr. Simmons’s expo-
sure should be presumed. Simmons Informal Reply Br. 2.
Ultimately, she seeks reversal of the Veterans Court’s de-
termination of no exposure and an application of the pre-
sumption of service connection. Simmons Informal Br. 3.
But those are purely factual challenges, not legal ones.
Even if Mr. Simmons served in Korea during the period of
presumptive exposure to herbicides, that presumption may
be overcome by factual evidence to the contrary. See
38
U.S.C. § 1113 (“Where there is affirmative evidence to the
contrary, . . . service-connection pursuant to section 1112,
1116, or 1118 . . . will not be in order.”); 38 U.S.C.
§ 1116B(a) (establishing presumption of herbicide expo-
sure for certain Korean War veterans “subject to section
1113”);
38 C.F.R. § 3.307(a)(6)(iv) (establishing
Case: 22-1369 Document: 26 Page: 6 Filed: 06/09/2022
6 SIMMONS v. MCDONOUGH
presumption of herbicide exposure for Korean War veter-
ans “unless there is affirmative evidence to establish that
the veteran was not exposed to any such agent during that
service”). The Board considered the evidence before it—
both the affirmative evidence against exposure and the ev-
idence for it given by Mr. Simmons and his physician—and
found that Mr. Simmons was not exposed and was there-
fore not entitled to the presumption of service-connection
under 38 U.S.C. § 1116B. That determination is a factual
one that we lack jurisdiction to review. See Jefferson v.
Principi,
271 F.3d 1072, 1075–76 (Fed. Cir. 2001).
Mrs. Simmons asserts that the Veterans Court com-
mitted constitutional error because it was an “act of dis-
crimination” to “overlook[] the evidence” presented in favor
of demonstrating exposure. Simmons Informal Br. 2. This
assertion merely repeats her factual challenge, without
identifying a constitutional issue. See Helfer v. West,
174
F.3d 1332, 1335 (Fed. Cir. 1999) (“[An appellant’s] charac-
terization of [a] question as constitutional in nature does
not confer upon us jurisdiction that we otherwise lack.”).
III
For the foregoing reasons, we dismiss the appeal for
lack of jurisdiction. 2
The parties shall bear their own costs.
DISMISSED
2 We treat Mrs. Simmons’s submissions of additional
documents, after she submitted her informal briefs, as mo-
tions to file supplemental appendices, which we grant. We
have considered those documents in the present decision.
