Vann v. McDonald , 606 F. App'x 1005 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOE A. VANN, JR.,
Claimant-Appellant
v.
ROBERT A. MCDONALD, Secretary of Veterans
Affairs,
Respondent-Appellee
______________________
2014-7119
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-0932, Judge Coral Wong
Pietsch.
______________________
Decided: April 14, 2015
______________________
JOE A. VANN, JR., Tulsa, OK, pro se.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., KIRK
T. MANHARDT; DAVID J. BARRANS, CHRISTINA LYNN GREGG,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 VANN v. MCDONALD
______________________
Before NEWMAN, LOURIE, and O’MALLEY, Circuit
Judges.
O’MALLEY, Circuit Judge.
Joe A. Vann, Jr. appeals from the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“Board”) that denied service connec-
tion for Vann’s lower back pain. Because Vann challenges
only factual determinations or application of the law or
regulations to the facts, we dismiss the appeal for lack of
jurisdiction.
BACKGROUND
Vann served on active duty in the United States Army
from September 1973 to May 1974. Vann claims that he
injured his back during basic training, and first sought
treatment in January 1974. Vann stated that he had
experienced chronic back pain since November 1973, but
the treating physician noted that x-rays taken at the time
were “essentially negative.” Vann v. Gibson, No. 13-0932,
2014 U.S. App. Vet. Claims LEXIS 979, at *2 (Vet. App.
June 6, 2014). Service records show that Vann had
previously suffered from a bladder infection that led to
similar pain in his back. Vann also had a prior history of
cystitis and endured occasional pain in the left hip.
During his April 1974 service separation examination,
Vann reported no recurrent back pain and his clinical
examination identified no abnormalities with his back.
Vann subsequently injured his back in a November
1996 accident at work when he slipped on ice. His doctor
diagnosed Vann with “acute lumbosacral sprain with
right sciatica and an acute cervical sprain with cephal-
gia,” leading to an abnormal range of motion in his back.
Id.VANN v. MCDONALD 3
Vann underwent a Veterans Affairs (“VA”) examina-
tion in July 1998 in light of his claims for non-service
connected pension benefits. Vann reported continued
back and leg pain due to his service injury and his fall at
work. The examiner diagnosed Vann with a chronic
lumbar spine strain, but imaging tests revealed that his
disc spaces and vertebral body heights were preserved. In
August 1998, the VA regional office denied his claim for
non-service connected benefits, and Vann did not appeal
the decision.
From September 1998 through February 2010, Vann
continued to seek treatment for his lower back pain. A
January 1999 report by a private physician noted that
Vann’s lower back pain was initially caused by the job-
related injury in 1996, and was exacerbated by a May
1998 automobile accident. A September 1999 VA exami-
nation report diagnosed Vann with degenerative disk
disease of the lumbosacral spine.
Vann filed a claim in December 2003 for service
connected benefits due to his lower back pain. The re-
gional office denied his claim, and Vann did not appeal.
Vann continued to seek treatment for his lower back pain,
and VA examiners, in 2007, identified a limited range of
motion in his spine. Vann then attempted to reopen his
prior claim for benefits, but the regional office found that
Vann failed to submit new and material evidence. Vann
submitted a Notice of Disagreement, and the regional
office reopened his claim on June 2010 but denied his
claim on the merits. On appeal, the Board remanded
Vann’s claim with instructions for the VA to provide Vann
with a new examination.
In September 2011, Vann underwent a comprehensive
examination for his chronic lower back pain. The exam-
iner reviewed Vann’s medical history and diagnosed Vann
with mild degenerative disk disease. Vann stated that his
back had consistently bothered him, dating back to his
4 VANN v. MCDONALD
basic training activities in 1973. An x-ray revealed de-
generative changes to the spine, but no evidence of frac-
tures or dislocations. Vann could not move his back, so
the examiner could not perform range of motion testing,
but the examiner found “no localized tenderness, pain to
palpation, guarding, muscle spasm, weakness, or fixed
deformity.” Id. at *5. The examiner identified mild loss
of vertebral height for one vertebrae, but the remainder of
vertebrae were normal. The examiner concluded that it
was unlikely that an injury during military service caused
Vann’s lower back pain, in part because x-rays taken in
November 1973 were essentially negative and because of
his prior history of bladder infection and cystitis. The
examiner instead concluded that normal wear and tear
due to age and Vann’s prior occupation as a truck driver
likely caused his injuries. A January 2012 addendum to
the examiner’s report noted that her opinion did not
change in light of new evidence, and that normal aging
and his prior injuries due to the 1996 job accident and
1998 automobile accident were still the most likely cause
of his lower back pain.
The Board denied Vann’s request for service connec-
tion in a December 17, 2012 opinion. The Board found
that Vann’s “current low[er] back disorder is not related
to his military service or to any incident therein.” Joint
Appendix 17. After comprehensively reviewing Vann’s
medical history, the Board first noted that Vann’s state-
ments regarding his back pain were internally incon-
sistent. Vann first complained of back pain in 1973, but
evidence in the record demonstrated a twenty-two year
gap until his next report of back pain due to the 1996
work injury. Further, Vann denied any lower back pain
during his separation examination, and he previously told
VA examiners that his lower back pain dated to 1996.
The Board also found that the medical evidence of record,
especially the 2011 examiner’s report, showed that other
post-service injuries and normal wear and tear of age and
VANN v. MCDONALD 5
his employment as a truck driver, not any basic training
injury, most likely caused Vann’s lower back pain.
Vann appealed the Board’s decision to the Veterans
Court. Vann argued that the Board failed to consider all
evidence of record by ignoring evidence of Vann’s hip pain
during service and his testimony of continuity dating back
to basic training. Vann also argued that the September
2011 examination was inadequate because the examiner
failed to provide an adequate rationale for her opinion.
The Veterans Court first concluded that the Board had
not clearly erred in finding no service connection. Vann,
No. 13-0932, 2014 U.S. App. Vet. Claims LEXIS 979, at
*9–11. The court noted that the Board discussed Vann’s
in-service back and hip pain, and fully analyzed Vann’s
service and post-service medical records. Id. at *11.
According to the Veterans Court, the Board also correctly
considered Vann’s lay testimony regarding continuity of
his injury, but found his statements to not be credible due
to inconsistencies. Id. at *11–12. The court further
concluded that Vann’s arguments regarding the Board’s
treatment of the medical evidence in the record constitut-
ed “nothing more than a disagreement with how the
Board weighed the evidence of record.” Id. at *12. And
the court found that the Board’s statement that the 2011
examiner’s report was the “most salient and relevant
evidence,” did not indicate that the Board ignored favora-
ble evidence. Id. at *13. Finally, the court determined
that the Board did not clearly err in finding that the 2011
examination was adequate. Id. at *14–16. The court held
that the examiner thoroughly reviewed Vann’s claim file
and adequately discussed both the evidence on record and
her rationale. Id. at *15–16.
Vann timely appealed to this court on November 18,
2014.
6 VANN v. MCDONALD
DISCUSSION
The scope of our review of the Veterans Court’s deci-
sion is limited by statute. Pursuant to 38 U.S.C. § 7292(c)
(2012), we have “exclusive jurisdiction to review and
decide any challenge to the validity of any statute or
regulation or any interpretation thereof brought under
this section, and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a
decision.” We are to “hold unlawful and set aside a regu-
lation or any interpretation thereof (other than a deter-
mination as to a factual matter) that was relied upon” by
the Veterans Court if we find the regulation “to be:
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power, privi-
lege, or immunity;
(C) in excess of statutory jurisdiction, authority,
or limitations, or in violation of a statutory right;
or
(D) without observance of procedure required by
law.”
Id. at § 7292(d)(1). We may not, however, 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 an appeal . . . presents a con-
stitutional issue.” Id. at § 7292(d)(2).
On appeal, Vann argues that the VA does not “under-
stand what really happened to me and how I was treated
as a young 17 year old soldier.” Pet’r’s Informal Br. at 1.
Vann states that he was “[permanently] injured in train-
ing trying to do the right thing,” and that he has “severe
anxiety that occurred in the military that I suffer [with]
daily.” Id. Vann claims that his injury was “ignored by
VANN v. MCDONALD 7
the medical staff in basic training,” and “was told to finish
training or be recycle[d].” Id. at 2. 1
Vann fails to appeal any issue over which we have
jurisdiction. Regarding Vann’s complaints of anxiety,
Vann, who at the time was represented by counsel, failed
to raise that issue before either the Board or the Veterans
Court. We generally do not decide issues that a petitioner
failed to raise before the Veterans Court. Forshey v.
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).
As for the Veterans Court and Board’s analysis of
Vann’s lower back pain, Vann argued to the Veterans
Court that the Board failed to sufficiently consider all
evidence of record, and the September 2011 examination
was inadequate. These arguments, as the Veterans Court
correctly identified, involve either purely factual determi-
nations or, at most, application of law or regulations to
the facts. The Board’s weighing of the evidence and
finding of no service connection are questions of fact that
we lack jurisdiction to review. Bastien v. Shinseki, 599
F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and
weighing of evidence and the drawing of appropriate
inferences from it are factual determinations committed
1 Vann also checked a box on his informal brief in-
dicating that the Veterans Court decided a constitutional
issue. Vann did not, however, raise any constitutional
arguments and the Veterans Court decision did not dis-
cuss any constitutional considerations. As Vann’s appeal
focuses entirely on the merits of the Veterans Court
decision, his characterization of his appeal as involving
constitutional issues does not control our jurisdiction.
Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007)
(finding that an appellant’s characterization of an argu-
ment as constitutional is not dispositive when the under-
lying argument fails to raise “a separate constitutional
issue”).
8 VANN v. MCDONALD
to the discretion of the fact-finder.”). The adequacy of a
medical examination and medical opinion are also ques-
tions of fact that we lack jurisdiction to review. See, e.g.,
Prinkey v. Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013)
(“[T]he sufficiency of a medical opinion is a matter beyond
our jurisdictional reach, because the underlying question
is one of fact.”); Cook v. Principi, 353 F.3d 937, 940–41
(Fed. Cir. 2003) (finding that the sufficiency of the Board’s
statement of the reasons for its decisions includes the
application of law to facts). Even broadly construing
Vann’s pro se appeal to our Court and the arguments
made by his counsel to the Veterans Court, Vann fails to
raise any argument or issue that we have jurisdiction to
consider on appeal. Because we are without jurisdiction
to review Vann’s appeal, we must dismiss his appeal for
want of jurisdiction.
DISMISSED
COSTS
No costs.