Lewis v. Dept. Of Veterans Affairs , 418 F. App'x 911 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EARL LEWIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7122
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1641, Judge Bruce E.
Kasold.
__________________________
Decided: April 14, 2011
__________________________
BARBARA J. COOK, Cincinnati, Ohio, argued for claim-
ant-appellant.
ANUJ VOHRA, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were TONY WEST, Assis-
LEWIS v. DVA 2
tant Attorney General, JEANNE E. DAVIDSON, Director,
MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on
the brief were DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, and DANA RAFFAELLI, Attorney, United
States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before LOURIE, PLAGER, and LINN, Circuit Judges.
PER CURIAM.
The issue in this veteran’s appeal is whether the
Court of Appeals for Veterans Claims (“Veterans Court”)
properly held that the Board of Veterans Appeals
(“Board”) did not specifically need to address a 2002
report prepared by the Department of Veterans Affairs
(“VA”) in rendering its determination that Mr. Lewis did
not suffer an in-service cold injury. Because the Veterans
Court properly applied the accepted law to the facts of
this case, we dismiss the appeal.
I. BACKGROUND
Earl Lewis was in the United States military from
January 1949 to June 1952. During that time, he served
in the Korean War at the Chosin Reservoir where he was
exposed to extremely cold conditions. Several years after
his military discharge, Mr. Lewis began to develop an
onset of progressive cold intolerance and paresthesias
(sensation of tingling, pricking, or numbness of a person’s
skin). In 1970, Mr. Lewis began undergoing treatments
for cold intolerance.
Mr. Lewis filed two claims with the VA regional office,
one in 2001 and one in 2005, for entitlement to service
connection for residuals of a cold injury to his hands and
3 LEWIS v. DVA
feet, diabetes, residuals of pneumonia, and sympathec-
tomy, all of which he argued were the result of frostbite
that he suffered while serving in Korea. In the Appeal of
Earl Lewis, No. 03-24 808, 2008 WL 4312036, at *4 (Bd.
Vet. App. Mar. 10, 2008). The regional office denied his
claims in August 2002 and June 2005, respectively. 1 Id.
at *1-2.
Subsequently, in October 2006, a VA medical exam-
iner evaluated Mr. Lewis and found that he did not sus-
tain a discrete cold injury while on military service.
Lewis v. Shinseki, No. 08-1641, 2010 WL 174115, slip op.
at 2 (Vet. App. Jan. 20, 2010). The examiner further
concluded that Mr. Lewis’ neuropathy stemmed from his
diabetes and not from cold exposure. In the Appeal of
Earl Lewis, 2008 WL 4312036, at *7-8.
Mr. Lewis appealed the 2002 and 2005 regional office
decisions to the Board where he included a newspaper
article entitled “U.S. To Pay Vets for WWII, Korea Frost-
bite Ills.” The article generally involved the VA’s recogni-
tion of the long-term effects of frostbite. In March 2008,
the Board rendered its decision upholding the regional
office determinations, but it did not specifically mention
the newspaper article in its decision. Lewis v. Shinseki,
2010 WL 174115, slip. op. at 1. Mr. Lewis appealed the
Board’s determination to the Veterans Court and asked it
to consider yet another piece of evidence—a 2002 report
from the VA entitled “Cold Injury: Diagnosis and Man-
agement of Long Term Sequelae.” The Veterans Court
agreed to consider the report, but still affirmed the
Board’s decision finding that the 2002 report and the
1 In August 2007, the regional office awarded Mr.
Lewis a service connection for hypochondriasis and as-
signed a ten percent rating.
LEWIS v. DVA 4
newspaper clipping were general in nature and did not
refute the medical examiner’s opinion that Mr. Lewis’
symptoms were not due to a cold injury. Id. at 2. Mr.
Lewis now appeals to this court.
II. DISCUSSION
Under 38 U.S.C. § 7292, this court has jurisdiction to
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 Court in making
the decision.” 38 U.S.C. § 7292(a). We have jurisdiction
“to determine whether the legal requirement of the stat-
ute or regulation has been correctly interpreted in a
particular context where the relevant facts are not in
dispute.” Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed.
Cir. 2004). However, except with respect to constitutional
issues, we do not have jurisdiction to “review (A) a chal-
lenge 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).
The premise of Mr. Lewis’ appeal is that the Veterans
Court misinterpreted its review statute by not remanding
the case to the Board to examine the 2002 report with
respect to his claim for service connection. This amounts
to a question regarding the sufficiency in fact of evidence,
which is neither a question of law nor a question of statu-
tory interpretation. See Waltzer v. Nicholson, 447 F.3d
1378, 1380 (Fed. Cir. 2006) (holding that a challenge to
the weight or sufficiency in fact of the evidence is not a
challenge to the legal sufficiency of the evidence). Despite
the appellant’s valiant but unpersuasive efforts to the
contrary, there is nothing in the record before us or in the
decision and judgment of the Veterans Court that reflects
5 LEWIS v. DVA
a considered interpretation of a statute or regulation that
would be subject to review by this court. 38 U.S.C.
§ 7292(a). The case presents at most an example of
application of law to the particular facts of the case, an
activity by the Veterans Court that Congress has ex-
pressly precluded us from reviewing. 38 U.S.C.
§ 7292(d)(2). Finding no other basis for our review of Mr.
Lewis’ case, we must dismiss his appeal.
DISMISSED
COSTS
Each party shall bear its own costs.