Belcher v. Dept. Of Veterans Affairs , 490 F. App'x 353 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT L. BELCHER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2011-7181
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-622, Judge William P.
Greene, Jr.
___________________________
Decided: July 24, 2012
___________________________
ZACHARY M. STOLZ, Chisholm Chisholm & Kilpatrick,
LLP, of Providence, Rhode Island, argued for claimant-
appellant. Of counsel was THOMAS R. BENDER.
STACEY K. GRIGSBY, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were TONY WEST, Assis-
BELCHER v. SHINSEKI 2
tant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, Assistant Director. Of counsel on
the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and DANA RAFFAELLI, Attorney, United
States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before LOURIE, PROST, and WALLACH, Circuit Judges.
PER CURIAM.
INTRODUCTION
Veteran Robert L. Belcher (“Belcher”) appeals the de-
cision of the United States Court of Appeals for Veterans
Claims (“Veterans Court”) in Belcher v. Shinseki, No. 09-
0622, 2010 WL 5377718 (Vet. App. Dec. 21, 2010). In its
decision, the Veterans Court affirmed the December 12,
2008 decision of the Board of Veterans’ Appeals (“Board”)
that denied service connection for post-traumatic stress
disorder (“PTSD”). Specifically, the Board denied Mr.
Belcher’s claimed in-service stressors finding that they
could not be corroborated. Belcher, 2010 WL 5377718, at
*1. We dismiss for lack of jurisdiction.
BACKGROUND
Mr. Belcher served on active duty with the Marine
Corps from November 1952 to October 1955. On Septem-
ber 8, 2005, he filed a claim for disability compensation
for PTSD. Mr. Belcher claimed that his PTSD stems from
two incidents or stressors: (1) a near drowning experience
in a swimming pool during boot camp; and (2) an am-
phibious landing training in Iwo Jima where Mr. Belcher
and several others fell into the ocean. On March 14, 2006,
a Department of Veterans Affairs regional office (“RO”)
denied the claim, finding that his claimed stressors could
3 BELCHER v. SHINSEKI
not be corroborated and that he lacked a confirmed diag-
nosis of PTSD. In response to the decision, Mr. Belcher
filed a notice of disagreement and requested a hearing
before a decision review officer. On April 10, 2007, the
RO issued a statement of the case, denying the claim for
lack of evidence corroborating the occurrence of the al-
leged in-service stressors.
Mr. Belcher appealed to the Board. Upon acknowl-
edging that Mr. Belcher had a provisional diagnosis of
PTSD, 1 the Board began its analysis with a discussion of
Mr. Belcher’s claimed stressors. The Board found that
the record, including testimony from Mr. Belcher, his
wife, and friends, did not contain credible supporting
evidence that his claimed stressors occurred. To begin,
the Board determined that Mr. Belcher did not engage in
combat and, thus, could not avail himself of the more
relaxed evidentiary standard for combat-related stressors
under 38 U.S.C. § 3.304(f). With respect to his claimed
stressors, the Board explained that the boot camp inci-
dent was anecdotal in nature, and as a result, unverifi-
able. The Board also found no evidence in the record to
support Mr. Belcher’s account of the amphibious landing
exercise. Therefore, on December 12, 2008, the Board
denied Mr. Belcher’s claim for entitlement to disability
compensation for PTSD.
On appeal to the Veterans Court, Mr. Belcher argued
that the Board failed to provide an adequate statement of
reasons or bases for its determination that his claimed in-
1
According to 38 C.F.R. § 3.304(f), service con-
nection for PTSD requires: (1) medical evidence diagnos-
ing the condition in accordance with 38 C.F.R. § 4.125(a)
of this chapter; (2) a link, established by medical evidence,
between current symptoms and an in-service stressor; and
(3) credible supporting evidence that the claimed in-
service stressor occurred.
BELCHER v. SHINSEKI 4
service stressor, related to the alleged events in Iwo Jima,
could not be corroborated. Belcher, 2010 WL 5377718, at
*1. In particular, he argued that his stressor was verified
by: (1) his lay statements that allege that he fell from a
ship near Iwo Jima, cut his hand, and nearly drowned; (2)
records that show he was on a ship near Iwo Jima; and (3)
evidence of a scar on his hand at separation from duty. Id.The Veterans Court affirmed the December 2008 Board
decision. Mr. Belcher timely appealed his case to this
court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292(a). We have
jurisdiction to review a decision of the Veterans Court
“with respect to 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.” 38 U.S.C. § 7292(a).
Our authority extends to deciding all relevant questions
of law, and we can set aside a regulation or an interpreta-
tion of a regulation relied upon by the Veterans Court
when we find it to be “arbitrary, capricious, and an abuse
of discretion, or otherwise not in accordance with law;
contrary to constitutional right, power, privilege, or
immunity; in excess of statutory jurisdiction, authority, or
limitations, or in violation of a statutory right; or without
observance of procedure required by law.” Jones v. West,
194 F.3d 1345, 1350 (Fed. Cir. 1999); see 38 U.S.C.
§ 7292(d)(1). This court’s jurisdiction, however, does not
extend to the ability to review factual determinations or
the application of a law or regulation to a particular set of
facts unless a constitutional issue is presented. 38 U.S.C.
§ 7292(d)(2).
5 BELCHER v. SHINSEKI
Here, the Veterans Court found that the “record failed
to reveal documentation of the triggering event or any
records of Mr. Belcher’s medical treatment following the
incident.” Belcher, 2010 WL 5377718, at *1. For example,
although recognizing that Mr. Belcher has a scar on his
hand and that he was stationed aboard a ship near Iwo
Jima, the Veterans Court determined that these facts do
not serve to corroborate the alleged in-service event
claimed to be the triggering stressor. Id. The Veterans
Court did not require corroboration of every detail of the
alleged stressor, but nevertheless, concluded that the
evidence presented was insufficient to provide support
that he fell from a ship, nearly drowned, and injured his
hand. Id. Thus, the Veterans Court held that the Board’s
finding was plausibly based on all of the evidence of
record and supported by an adequate statement of rea-
sons or bases. Id.We have no jurisdiction over this case because the
Veterans Court’s decision was based on factual determi-
nations and/or the application of a law or regulation to a
particular set of facts. Under the guise of a legal chal-
lenge, Mr. Belcher contends that the Veterans Court
applied “too stringent a standard under both 38 U.S.C.
§ 1154(a) and 38 C.F.R. § 3.304(f).” Specifically, he argues
that the Veterans Court erred by requiring “meaningful
support” to his allegation that he fell from a ship, nearly
drowned, and injured his hand when the statute and
regulation require only “credible supporting” evidence
that the stressor occurred. The Veterans Court’s use of
the word “meaningful” as opposed to “credible,” however,
is a distinction without a difference in this instance. A
review of the Veterans Court’s decision shows it did not
interpret a rule of law or any statute or regulation or any
interpretation thereof. Rather, the Veterans Court af-
firmed the Board’s finding that the evidence did not
BELCHER v. SHINSEKI 6
support Mr. Belcher’s claimed non-combat related
stressor. Thus, Mr. Belcher’s arguments merely challenge
the weight given to the evidence, which we lack jurisdic-
tion to review. See, e.g., Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000) (“The weighing of this evidence is
not within our appellate jurisdiction.”). This appeal is
therefore dismissed.
DISMISSED
No costs.