Noreen v. Shinseki , 429 F. App'x 1000 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ELWOOD J. NOREEN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7097
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 07-2514, Judge Lawrence B.
Hagel.
_________________________
Decided: July 22, 2011
_________________________
ELWOOD J. NOREEN, of Bridgewater, New Jersey, pro
se.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
NOREEN v. DVA 2
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director.
__________________________
Before NEWMAN, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Elwood J. Noreen appeals the final decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) that affirmed the decision of the Board
of Veterans Appeals (“Board”) denying his claim for
benefits for a lung disorder due to asbestos exposure.
Noreen v. Shinseki, No. 07-2514, 2010 WL 4806903 (Vet.
App. Nov. 19, 2010). We dismiss for lack of jurisdiction.
DISCUSSION
I.
Mr. Noreen served on active duty with the United
States Navy from January of 1951 through November of
1954. In October of 2003, he filed a claim with the De-
partment of Veterans Affairs (“VA”) Regional Office
(“RO”) for “a lung condition secondary to asbestos disclo-
sure.” Noreen, 2010 WL 4806903, at *1. After the RO
denied the claim, Mr. Noreen appealed to the Board.
In May of 2007, the Board denied the claim for lack of
service connection. In re Noreen, No. 05-36 235 (Bd. Vet.
App. May 2, 2007). Central to the Board’s ruling was its
determination that the opinion of Dr. Frank Maldonado,
the VA’s specialist, was more probative than that of Dr.
M. Lahiri, Mr. Noreen’s private treating physician. Dr.
Lahiri stated that there was evidence of pleural fibrosis in
Mr. Noreen’s lungs and that Mr. Noreen’s exposure to
asbestos during his active service more probably than not
3 NOREEN v. DVA
was the cause of his lung condition. Id., slip op. at 5. Dr.
Maldonado, however, concluded that there was no evi-
dence that Mr. Noreen had any asbestos-related lung
condition. Id. at 7. The Board credited Dr. Maldonado’s
opinion over Dr. Lahiri’s because it found the former to be
more comprehensive and to be based upon a more detailed
review of the evidence. Id. at 9-10.
Mr. Noreen appealed the Board’s decision to the Vet-
erans Court. As noted, the court affirmed the Board’s
decision; this appeal followed.
II.
This court’s ability to review a decision of the Veter-
ans Court is limited. Pursuant to 38 U.S.C. § 7292(a), we
may review “the validity of a decision of the [Veterans]
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the [Veter-
ans] Court in making the decision.” We have exclusive
jurisdiction “to review and decide any challenge to the
validity of any statute or regulation or any interpretation
thereof brought under [38 U.S.C. § 7292], and to interpret
constitutional and statutory provisions, to the extent
presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). However, except to the extent that an appeal
presents a constitutional issue, we “may not review (A) a
challenge to a factual determination, or (B) a challenge to
a law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2).
In its decision, the Veterans Court did not decide any
constitutional issue, and it did not interpret any statute
or regulation. Rather, the court ruled (1) that the Board’s
determination that the VA had satisfied its duties to
notify and assist was not clearly erroneous; (2) that the
Board properly relied on Dr. Maldonado’s medical opinion;
NOREEN v. DVA 4
and (3) that the Board provided adequate reasons in
support of its decision. Accordingly, the court affirmed
the Board’s decision. On appeal, Mr. Noreen does not
raise any constitutional issue, any issue relating to the
validity of a statute or regulation, or any issue relating to
the Veterans Court’s interpretation of a statute, a regula-
tion, or a rule of law. Instead, he challenges the Board’s
findings of fact relating to his claimed lung disorder. Mr.
Noreen thus presents factual contentions that are beyond
the scope of our jurisdiction under 38 U.S.C. § 7292(d)(2).
Finally, in his brief, Mr. Noreen states that his claim
before the RO included a request for an increased rating
for hearing loss. However, it does not appear this issue
was raised before the Board or the Veterans Court. As
seen, pursuant to 38 U.S.C. § 7292(a), we may only review
a ruling of the Veterans Court on a matter within our
jurisdiction if it was relied on by the court in its decision
Moreover, “[a]s a general rule, an appellate court will not
hear on appeal issues that were not clearly raised in the
proceedings below.” Boggs v. West, 188 F.3d 1335, 1337-
38 (Fed. Cir. 1999). In any event, Mr. Noreen’s statement
in support of the claim (“The VA’s hearing test docu-
mented the increased hearing loss and the claim should
have been approved. The noise level on the aircraft
carrier was way beyond the safe decibel levels.”) presents
factual issues that are beyond the scope of our jurisdic-
tion.
III.
For the foregoing reasons, Mr. Noreen’s appeal is
dismissed for lack of jurisdiction.
Each party shall bear its own costs.
DISMISSED