Ervin v. McDonald , 594 F. App'x 687 ( 2015 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    LARRY D. ERVIN,
    Claimant-Appellant
    v.
    ROBERT A. MCDONALD, SECRETARY OF
    VETERANS AFFAIRS,
    Respondent-Appellee
    ______________________
    2014-7075
    ______________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in No. 12-1923, Judge William A. Moor-
    man.
    ______________________
    Decided: February 23, 2015
    ______________________
    KENNETH M. CARPENTER, Law Offices of Carpenter
    Chartered, Topeka, KS, for claimant-appellant.
    VERONICA NICOLE ONYEMA, Commercial Litigation
    Branch, Civil Division, United States Department of
    Justice, Washington, DC, for respondent-appellee. Also
    represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN,
    JR., MARTIN F. HOCKEY, JR; MEGHAN ALPHONSO, DAVID J.
    BARRANS, LARA EILHARDT, Office of the General Counsel,
    2                                       ERVIN   v. MCDONALD
    United States Department of Veterans Affairs, Washing-
    ton, DC.
    ______________________
    Before DYK, MOORE, and O’MALLEY, Circuit Judges.
    O’MALLEY, Circuit Judge.
    Larry Ervin appeals this judgment of the Court of
    Appeals for Veterans Claims (“Veterans Court”) affirming
    the decision of the Board of Veterans Appeals (“Board”)
    that there was no service connection for Ervin’s alleged
    psychiatric disabilities. Because we find that Ervin’s
    appeal improperly requests that we reweigh the facts at
    issue in his case, we dismiss for lack of jurisdiction.
    I. BACKGROUND
    Ervin served on active duty in the Navy from April
    1970 to December 1970. In his separation examination,
    he was evaluated as psychiatrically normal. In 1972, he
    applied for compensation benefits for an injury to his
    middle figure of his right hand, but did not allege any
    psychiatric disabilities. Twenty years later, in June 1992,
    Ervin first filed a claim for compensation for psychiatric
    disabilities. This claim has been continuously prosecuted
    since that time, including multiple remands from the
    Veterans Court. During that time, Ervin supported his
    claim with evidence based on his lay testimony.
    Relevant to this appeal, on March 2, 2012, the Board
    denied Ervin’s claims for service connection for his alleged
    psychiatric disabilities. The Board “considered all lay and
    medical evidence as it pertains to the issues,” but found
    no basis for a service connection, explaining that Ervin’s
    assertions regarding his psychiatric manifestations were
    not credible, and more reliable evidence weighed against
    service connection. On November 13, 2013, the Veterans
    Court affirmed the Board’s decision, finding that Ervin
    merely challenged the Board’s weighing of the evidence.
    ERVIN   v. MCDONALD                                       3
    The Veterans Court explained that the Board properly
    considered all of Ervin’s favorable evidence and made a
    credibility assessment based on other evidence in the
    record, properly applying 38 C.F.R. § 3.303(a). Ervin
    timely appealed.
    II. DISCUSSION
    Our jurisdiction over the decisions of the Veterans
    Court is limited by statute. Bond v. Shinseki, 
    659 F.3d 1362
    , 1366 (Fed. Cir. 2011). Under 38 U.S.C. § 7292(d)(2),
    we “may not review (A) a challenge to a factual determi-
    nation, 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)
    (2012).
    Ervin argues that the Board relied on a misinterpre-
    tation of the term “pertinent evidence” in 38 C.F.R.
    § 3.303(a) because it did not consider relevant lay evi-
    dence on the record.     Under 38 C.F.R. § 3.303(a), the
    Board must consider “the entire evidence of record,”
    including “medical records and all pertinent medical and
    lay testimony.” In this case, however, there is nothing in
    the record to suggest that the Board failed to consider any
    of Ervin’s proffered evidence. Indeed, the Board consid-
    ered all of Ervin’s lay evidence, but concluded that, be-
    cause multiple parts of the record conflicted with Ervin’s
    lay evidence, the more credible evidence weighed against
    finding a service connection. Ervin’s arguments, there-
    fore, entirely turn on the Board’s credibility findings,
    which we do not have jurisdiction to address. See 38
    U.S.C. § 7292(d)(2).
    III. CONCLUSION
    For the foregoing reasons, we dismiss this case for
    lack of jurisdiction
    DISMISSED
    

Document Info

Docket Number: 14-7075

Citation Numbers: 594 F. App'x 687

Filed Date: 2/23/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023