Case: 22-1198 Document: 43 Page: 1 Filed: 03/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMAN B. JOHNSON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1198
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-7673, Judge Grant Jaquith.
______________________
Decided: March 7, 2023
______________________
DANIEL ROBERTS, Dechert LLP, Philadelphia, PA, ar-
gued for claimant-appellant. Also represented by AMANDA
K. ANTONS, Chicago, IL; KATHERINE A. HELM, New York,
NY.
TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; JULIE HONAN, Y. KEN LEE, Office of General
Case: 22-1198 Document: 43 Page: 2 Filed: 03/07/2023
2 JOHNSON v. MCDONOUGH
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
Before LOURIE, CUNNINGHAM, and STARK, Circuit Judges.
CUNNINGHAM, Circuit Judge.
Norman B. Johnson appeals from a decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”) affirming the Board of Veterans’ Appeals’ de-
nial of service connection for pes planus (flat feet). See
Johnson v. McDonough, No. 19-7673,
2021 WL 2170817
(Vet. App. May 28, 2021) (Decision). Because we lack juris-
diction to review the issues raised in Mr. Johnson’s appeal,
we dismiss.
BACKGROUND
Mr. Johnson served in the United States Marine Corps
from July 1980 to July 1984 and then again from Septem-
ber 1984 to November 1991, when he was honorably dis-
charged. J.A. 1462. Much of Mr. Johnson’s treatment
records from his time in service are illegible. J.A.
804–1104. One record, from February 27, 1981, includes
notations that appear to read “pes planus,” “fit for orthot-
ics,” and “flat feet all life.” J.A. 887–88. Another record
describing a physical examination on August 24, 1983, also
notes pes planus. J.A. 1426 (June 2012 Department of Vet-
erans Affairs (“VA”) examination request summarizing Mr.
Johnson’s service treatment records).
In 2012, Mr. Johnson filed a service connection claim
for a “bilateral foot condition,” pes planus. J.A. 1439. The
Regional Office requested a medical examination of Mr.
Johnson, asking the examiner “[w]as the Veteran’s bilat-
eral pes planus, which existed prior to service according to
the Veteran, aggravated beyond its natural progression by
military service?” J.A. 1425–27. The examiner reviewed
Mr. Johnson’s medical record and examined him on July
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JOHNSON v. MCDONOUGH 3
27, 2012. J.A. 1421. The examiner found that Mr. Johnson
had pain in both feet and that his condition impacted his
ability to work, among other findings. J.A. 1412–17. Spe-
cifically, the examiner stated “pt can not [sic] con-
tin[u]ously stand more than 3 hours because this causes
pain.” J.A. 1417. The examiner checked a box on the Com-
pensation and Pension Exam Report indicating that “[t]he
claimed condition, which clearly and unmistakably existed
prior to service, was clearly and unmistakably not aggra-
vated beyond its natural progression by an in-service in-
jury, event, or illness.” J.A. 1420. The examiner explained:
“[I] base th[i]s on the patient[’]s lack of documentation of
seeking treatment in the military and sinc[e] his discharge
from the military. I also base this that pt has no charac-
teristic calluses second[a]ry to functional or structural
eti[o]logies, no dysfu[n]ction of posterior tibialis and no
sign[i]ficant arthritic changes.”
Id.
The Regional Office denied Mr. Johnson’s service con-
nection claim. J.A. 1169–73. Mr. Johnson appealed to the
Board of Veterans’ Appeals. J.A. 1123–26. He submitted
three statements concerning conditions he experienced
during service that he felt aggravated his pes planus. J.A.
1123–26; J.A. 613–15; J.A. 102–04.
In a July 2013 statement, Mr. Johnson described rigor-
ous training and activities including miles of running on
hard surfaces and sand, forced marches with a heavy pack,
rappelling, spy rigging, and physical training conducted on
the steel flight decks of ships. J.A. 1123–24. He stated that
he told his physician about his pain while in service in 1981
but was never issued orthotics or special shoes to alleviate
his pain. J.A. 1124. He attributed the lack of documenta-
tion of complaints related to pes planus in his service med-
ical record to his involuntary separation in 1991, stating
that he was not offered a separation physical, pre-separa-
tion counseling, or the opportunity to submit a disability
claim before his 1991 discharge. J.A. 1123, 1125–26.
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4 JOHNSON v. MCDONOUGH
In October 2016, Mr. Johnson submitted a second
statement restating the strenuous activities he had per-
formed during service. J.A. 613. In addition to the training
and activities already described, he stated that he per-
formed remedial physical therapy for weight gain, which
exacerbated his foot condition. J.A. 613–14. He added that
the atmosphere during his service encouraged service
members to “[s]uck it [u]p,” in other words, not complain of
their ailments. J.A. 613.
In December 2016, Mr. Johnson submitted a third
statement. J.A. 102–04. This statement largely reiterated
the facts recited in the previous two statements.
Id. Mr.
Johnson added that he was not found to have flat feet when
he was examined by a doctor during his military entrance
processing, and that, had he had flat feet at that time, he
would not have been permitted to join or rejoin the Marine
Corps. J.A. 103.
The Board denied Mr. Johnson’s service connection
claim for pes planus. J.A. 18. It found that the evidence
showed that Mr. Johnson’s pes planus pre-existed his en-
listment and did not increase in disability beyond its natu-
ral progression during his service. J.A. 18.
Mr. Johnson appealed to the Veterans Court, which af-
firmed. Decision at *5. It found clear and unmistakable
evidence that Mr. Johnson’s pes planus disability predated
his enlistment in his 1981 admission of “flat feet all life.”
Id. at *3. The Veterans Court also found clear and unmis-
takable evidence that Mr. Johnson’s pes planus disability
was not aggravated beyond its natural progression during
service. Id. at *3–4. The Veterans Court considered Mr.
Johnson’s lay statements and found that his description of
rigorous activities during service “conflates risk factors
with actual aggravation.” Id. at *4.
Mr. Johnson timely appealed to this court.
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JOHNSON v. MCDONOUGH 5
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court comes from
38 U.S.C. § 7292. Our jurisdiction under
that section is limited. We have jurisdiction to review “all
relevant questions of law,” but lack jurisdiction to review
“a challenge to a factual determination,” or “a challenge to
a law or regulation as applied to the facts of a particular
case,” except to the extent that those challenges raise a con-
stitutional issue. § 7292(d).
Mr. Johnson purports to challenge three issues of law
in his appeal to this court. But his challenges, at heart, all
pertain to factual issues or the application of law to fact.
We therefore lack jurisdiction to address Mr. Johnson’s ar-
guments under § 7292(d).
First, Mr. Johnson argues that the Veterans Court
erred by failing to determine that the VA violated its stat-
utory duty to assist under 38 U.S.C. § 5103A by not provid-
ing him with an adequate medical examination and opinion
necessary to decide his claim. Appellant’s Br. 10, 14–20.
He argues that the 2012 medical examination was inade-
quate because the medical examiner failed to consider his
lay statements; the medical examination was rushed; and
the resulting report flawed. Id. This argument does not
raise issues falling within our limited jurisdiction under
§ 7292(d).
Under § 5103A(d), the VA is required to provide a med-
ical examination in certain cases. But the adequacy of any
such examination is an issue of fact, which we lack juris-
diction to review. Prinkey v. Shinseki,
735 F.3d 1375,
1382–83 (Fed. Cir. 2013) (finding that we lack jurisdiction
to judge the sufficiency of a medical opinion and collecting
non-precedential cases in which we have held the same).
Mr. Johnson’s citations to Veterans Court cases re-
manding Board decisions based on flaws in the underlying
medical examination, such as Miller v. Wilkie, 32 Vet. App.
Case: 22-1198 Document: 43 Page: 6 Filed: 03/07/2023
6 JOHNSON v. MCDONOUGH
249 (2020); and Bowling v. Principi,
15 Vet. App. 1 (2001),
are unavailing. See Appellant’s Br. 15, 18–19. The Veter-
ans Court’s jurisdiction, governed by
38 U.S.C. § 7252 and
§ 7261, is broader than our own, which is governed by
38
U.S.C. § 7292. That the Veterans Court has the power to
remand to remedy inadequacies in a medical examination
does not imply that we have that same power. See Prinkey
735 F.3d at 1383 (explaining that the Veterans Court acts
“as the sole appellate judge of medical evidence (except
where a constitutional issue is before this court)” and that
if we were to review the sufficiency of a medical examina-
tion it would “turn the jurisdictional order set by Congress
in 1988 on its head”).
Second, Mr. Johnson argues that the Veterans Court
misapplied relevant statutes—namely
38 U.S.C.
§ 7104(d)(1) and § 1154(b)—in such a way as to permit the
Board to disregard his lay statements. Appellant’s Br. 11,
14–20. This argument presents an issue of fact which we
lack jurisdiction to review.
The Board considered lay evidence, but it did not give
that lay evidence the weight that Mr. Johnson believes it
should have. See J.A. 26 (discussing Mr. Johnson’s July
2013 statement); see also J.A. 19 (“The Board has thor-
oughly reviewed all the evidence in the Veteran’s claims
file.”). Similarly, the Veterans Court considered lay evi-
dence but determined that Mr. Johnson’s lay statements
pertained to “risk factors for aggravation” rather than “ac-
tual aggravation.” Decision at *4. That is, the Board and
Veterans Court did not disregard Mr. Johnson’s lay state-
ments as he alleges. Rather, the Board and Veterans Court
gave Mr. Johnson’s lay statements less probative value
than Mr. Johnson believes they should have. The probative
value given to evidence is a factual determination beyond
our jurisdiction. Goodman v. Shulkin,
870 F.3d 1383, 1386
(Fed. Cir. 2017).
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JOHNSON v. MCDONOUGH 7
Mr. Johnson’s citations to cases in which we have ex-
plained the role that lay evidence plays in disability benefit
determinations are not to the contrary. For example, in
Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007), we
addressed a legal issue—whether, as the Veterans Court
held, “competent medical evidence is required” when “the
determinative issue involves either medical etiology or a
medical diagnosis.”
Id. at 1374, 1376–77. We held that
“[l]ay evidence can be competent and sufficient to establish
a diagnosis of a condition when (1) a layperson is competent
to identify the medical condition, (2) the layperson is re-
porting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a
later diagnosis by a medical professional.”
Id. at 1377 (foot-
note omitted). Here, unlike in Jandreau, the Board and
Veterans Court permitted lay evidence and did not an-
nounce, as a matter of law, that lay evidence could never
show service connection under these circumstances. The
Veterans Court reviewed the lay evidence and determined
that it showed that Mr. Johnson had experienced risk fac-
tors for further pes planus disability, but that it did not
show actual aggravation. Decision at *4. The Veterans
Court concluded that Mr. Johnson’s lay evidence was out-
weighed by the uncontroverted medical evidence that Mr.
Johnson’s pes planus was not aggravated beyond its natu-
ral progression during service.
Id. This determination is a
factual determination that we lack jurisdiction to review.
See Jandreau,
492 F.3d at 1377 (“Whether lay evidence is
competent and sufficient in a particular case is a fact issue
. . . rather than a legal issue . . . .”).
Third, Mr. Johnson argues that the Veterans Court
misapplied the presumption of soundness under
38 U.S.C.
§ 1111. Appellant’s Br. 13, 20–23. Under the presumption
of soundness in
38 U.S.C. § 1111, “every veteran shall be
taken to have been in sound condition when examined, ac-
cepted, and enrolled for service, except as to defects, infir-
mities, or disorders noted at the time of the examination,
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8 JOHNSON v. MCDONOUGH
acceptance, and enrollment, or where clear and unmistak-
able evidence demonstrates that the injury or disease ex-
isted before acceptance and enrollment and was not
aggravated by such service.” To rebut this presumption,
the VA must show clear and unmistakable evidence of a
preexisting condition and of a lack of aggravation during
service. Wagner v. Principi,
370 F.3d 1089, 1095–96 (Fed.
Cir. 2004). Mr. Johnson asserts that the evidence relied on
by the Veterans Court to show a preexisting condition—the
1981 admission of “flat feet all life”—“says nothing about
any morbidity arising therefrom prior to service, or any
reason why Mr. Johnson was not entitled to a presumption
of soundness upon entry into the Marine Corps.” Appel-
lant’s Br. 21. Mr. Johnson further argues that, even if
there were clear and unmistakable evidence showing
preexisting pes planus, the Veterans Court further erred
by finding clear and unmistakable evidence of no aggrava-
tion during service. Id. at 22. Mr. Johnson contends that
the 2012 medical opinion does not provide clear and unmis-
takable evidence rebutting the presumption of aggrava-
tion. Id.
Once again, Mr. Johnson’s arguments are purely fac-
tual in nature. He argues that the Board and the Veterans
Court gave the 1981 record of “flat feet all life,” J.A. 888,
and the 2012 medical opinion, J.A. 1411–24, the wrong pro-
bative value. See, e.g., Appellant’s Br. 10–13, 21–23. The
Veterans Court applied the correct standards here regard-
ing evidence that Mr. Johnson was not sound at his entry
to the Marine Corps—which it did through his 1981 admis-
sion of “flat feet all life”—and evidence that Mr. Johnson’s
pes planus condition was not aggravated during service—
which it did through the 2012 medical examination report.
Decision at *4–5. We lack jurisdiction to review the VA’s
underlying factual findings. See
38 U.S.C. § 7292(d).
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JOHNSON v. MCDONOUGH 9
CONCLUSION
We have considered Mr. Johnson’s remaining argu-
ments and conclude that we lack jurisdiction. For the rea-
sons discussed above, we dismiss Mr. Johnson’s appeal.
DISMISSED
COSTS
No costs.
