Washington v. McDonald , 592 F. App'x 941 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRIS J. WASHINGTON,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7063
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-0136, Judge William A. Moor-
man.
______________________
Decided: November 18, 2014
______________________
CHRIS J. WASHINGTON, of Harvey, Louisana, pro se.
WILLIAM P. RAYEL, 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 STUART F. DELERY, Assistant
Attorney General, ROBERT E. KIRSCHMAN, JR., Director,
and KIRK MANHARDT, Assistant Director. Of counsel on
the brief were Y. KEN LEE, Deputy Assistant General
2 WASHINGTON v. MCDONALD
Counsel, and BRIAN D. GRIFFIN, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
______________________
Before PROST, Chief Judge, NEWMAN, and HUGHES, Circuit
Judges.
NEWMAN, Circuit Judge.
Chris J. Washington appeals the memorandum deci-
sion of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) 1 affirming in part and vacating
in part a decision of the Board of Veterans’ Appeals
(“Board”) denying his claims for service connection. The
Veterans Court affirmed the Board’s denial of service
connection for a right eye disability and a dental disabil-
ity, and remanded Mr. Washington’s claim for service
connection for residuals of a gunshot wound. Because Mr.
Washington challenges only factual determinations of the
Veterans Court and does not raise a genuine constitution-
al issue, we must dismiss this appeal for lack of jurisdic-
tion.
BACKGROUND
Mr. Washington served on active duty from May 1970
until June 1973. Following active service, he served in
the Louisiana Army National Guard and the California
Air National Guard until June 1980.
A. Gunshot wound
In September 1979, after being “[a]ccidentally shot in
the arm,” Mr. Washington filed a claim stating that he
was hospitalized for a gunshot wound. Washington, 2014
1 Washington v. Shinseki, No. 12-0136, 2014 WL
351771 (Vet. App. Feb. 3, 2014).
WASHINGTON v. MCDONALD 3
WL 351771, at *3. In October 1979, Mr. Washington
submitted a report stating that he was shot during a
robbery. Medical records from December 1982, Septem-
ber 1999, and October 2000 also note Mr. Washington’s
statements that he was shot during a robbery. At a Board
hearing in March 2011, Mr. Washington stated that he
was on inactive duty when he was shot, but “had gone on
active duty for training for a meeting” and was shot on his
way home. Id.
The Board found that Mr. Washington’s statements to
medical professionals in the course of seeking treatment
were more credible than his statements at the 2011 Board
hearing. The Board further found that there was no
evidence that Mr. Washington was acting in the line of
duty when he was shot. Pursuant to a concession by the
government, the Veterans Court remanded Mr. Washing-
ton’s claim because “the Board provided an inadequate
statement of reasons or bases for its decision” and “failed
to make an explicit finding that all available federal
records had been obtained.” Id. at *5.
B. Right eye disability
In January 1973, Mr. Washington’s eyes were clinical-
ly evaluated as normal, with 20/25 vision in the right eye.
In May 1973, a service medical record stated that Mr.
Washington was hit in the right eye, causing a subcon-
junctival hemorrhage. In July 1976, Mr. Washington’s
eyes were again clinically evaluated as normal, with 20/20
vision in the right eye. In July 2001, Mr. Washington
filed a claim for a right eye disability. The VA examiner
opined that Mr. Washington’s diagnosed myopia and
presbyopia were of developmental origin and were not
related to service, and also that there was no residual
disability secondary to right-eye trauma while in service.
The Board found that the subconjunctival hemorrhage in
service resolved without residuals. The Board also found
that there was no evidence of retinal detachment until
4 WASHINGTON v. MCDONALD
more than three decades after service. The Veterans
Court held that the Board’s findings were not clearly
erroneous.
C. Dental disability
In May 1970, Mr. Washington received a comprehen-
sive dental exam, during which no abnormalities were
noted. In September 1970, May 1972, and June 1972,
teeth were removed. In July 2001, Mr. Washington
submitted a claim for entitlement to service connection for
a dental disability. The Board found that none of Mr.
Washington’s teeth were removed due to trauma and that
Mr. Washington was not entitled to compensation for the
loss of his teeth. The Board also found that Mr. Washing-
ton was not a member of any of the classes that would
entitle him to receive outpatient dental care. The Veter-
ans Court affirmed that Mr. Washington did not meet the
criteria for compensation for a dental disability or for
eligibility to receive outpatient treatment.
DISCUSSION
Pursuant to 38 U.S.C. § 7292(a), we have jurisdiction
to review decisions of the Veterans Court with respect to
the validity or interpretation of a statute or regulation
relied upon by the court. However, we have no authority
to review challenges to factual determinations or chal-
lenges to the application of a law or regulation to facts.
38 U.S.C. § 7292(d)(2); see also White v. Principi, 243 F.3d
1378, 1381 (Fed. Cir. 2001) (“Congress left it to the VA,
and not this court, to determine how best to weigh evi-
dence in veterans’ benefits cases.”).
Mr. Washington argues that the Veterans Court failed
to review and refer to evidence in support of each of his
asserted claims for service connection. He also argues
that the Veterans Court failed to decide all of the issues
before it: namely, his entitlement to service connection for
residuals of a gunshot wound, a right eye disability, and a
WASHINGTON v. MCDONALD 5
dental disability. Finally, Mr. Washington argues that
his constitutional rights were violated according to the
United States Code. In considering these arguments, we
are mindful of the fact that Mr. Washington is proceeding
pro se, which requires that the VA give “a sympathetic
reading to the veteran’s filings by ‘determining all poten-
tial claims raised by the evidence, applying all relevant
laws and regulations.’” Szemraj v. Principi, 357 F.3d
1370, 1373 (Fed. Cir. 2004) (quoting Roberson v. Principi,
251 F.3d 1378 (Fed. Cir. 2001)).
First, Mr. Washington contends that the Board failed
to review and refer to his service medical records and VA
medical records. The VA is presumed to have reviewed
all the evidence before it, absent a specific indication to
the contrary. Newhouse v. Nicholson, 497 F.3d 1298, 1302
(Fed. Cir. 2007). In this case, the Board explicitly stated
that it had “reviewed all the evidence in [Mr. Washing-
ton’s] claims file,” board op. at 10, which included “service
treatment records, some service personnel records, VA
treatment records and VA examination reports, and
private medical evidence.” Id. at 7. To the extent that
Mr. Washington challenges the completeness of the
Board’s evaluation of the evidence, this is a factual issue
over which we have no jurisdiction. Walden v. West, 194
F.3d 1330 (Fed. Cir. 1999).
Second, Mr. Washington argues that the Veterans
Court failed to decide all the issues he lists in response to
question one of his informal brief. These issues are 1)
“[e]ntitlement to service connection for residuals of a
gunshot wound;” 2) “[e]ntitlement to service connection
for a right eye disability;” and 3) “[e]ntitlement to service
connection for a dental disability.” App. Br. at 3.
Regarding the claim for a right eye disability, Mr.
Washington argues that he experienced trauma to his
right eye in service, and that this trauma caused his
current disability. Mr. Washington does not allege that
6 WASHINGTON v. MCDONALD
the Veterans Court misinterpreted any statute or regula-
tion or that any statute or regulation is invalid in relation
to this claim. The Veterans Court reviewed the evidence
of record, including the 2003 examination finding that Mr.
Washington’s diagnosed myopia and presbyopia were of
developmental origin, and concluded that the Board did
not clearly err in determining that Mr. Washington’s right
eye condition was not related to service. This factual
determination is not within our statutory jurisdiction.
Mr. Washington does not provide a basis for his belief
that he is entitled to compensation for his dental disabil-
ity, or otherwise elaborate on this claim. The Board found
that none of Mr. Washington’s teeth were extracted due to
trauma and that Mr. Washington was not entitled to
compensation for the loss of his teeth, or to outpatient
dental care under the statute. The Veterans Court con-
cluded that the Board’s findings were not clearly errone-
ous. The court also affirmed the Board’s finding that Mr.
Washington did not meet the criteria for compensation for
dental disability or for eligibility to receive VA outpatient
dental treatment. It does not appear that the Veterans
Court misinterpreted any statute or regulation in relation
to Mr. Washington’s dental disability claim, and we lack
jurisdiction to review the court’s factual determinations.
The Veterans Court remanded Mr. Washington’s
claim for residuals of a gunshot wound, and we see no
basis for review of the remand order. To the extent Mr.
Washington argues that the Veterans Court should have
decided the gunshot wound claim in his favor without
requiring a remand, he raises factual issues of sufficiency
of the evidence concerning his duty status at the time he
was shot, and issues of his credibility. These are factual
issues, and not within our jurisdiction. See Buchanan v.
Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he
Board, as fact finder, is obligated to, and fully justified in,
determining whether lay evidence is credible. . . .”).
WASHINGTON v. MCDONALD 7
Finally, Mr. Washington states that his constitutional
rights were violated. We have jurisdiction to interpret
constitutional provisions “to the extent presented and
necessary to a decision,” 38 U.S.C. § 7292(c), and may
consider genuine constitutional issues. See In re Bailey,
182 F.3d 860 (Fed. Cir. 1999). However, the “characteri-
zation of [a] question as constitutional in nature does not
confer upon us jurisdiction that we otherwise lack.”
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). To
the extent Mr. Washington argues that his constitutional
rights were violated because the Veterans Court failed to
review and refer to evidence in support of his claim, this
does not raise a genuine constitutional issue. Rather, it
amounts to a disagreement concerning the Veterans
Court’s treatment of facts in this case. Mr. Washington
has alleged no other lapse in due process, and the record
does not show one.
In sum, we discern no constitutional or statutory is-
sue that satisfies the requirements placed by statute on
our appellate jurisdiction. Accordingly, this appeal is
dismissed.
No costs.
DISMISSED