NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7100
GARY HARALSON,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Gary Haralson, of Bushnell, Florida, pro se.
Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With him on
the brief were Gregory G. Katsas, Assistant Attorney General and Jeanne E. Davidson,
Director. Of counsel were Ethan Kalett, Supervisory Attorney, and Christa Childers,
Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of
Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7100
GARY HARALSON,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-1694, Judge
Robert N. Davis.
DECIDED: November 5, 2008
Before NEWMAN, SCHALL, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Gary Haralson appeals the final decision of the United States Court of Appeals
for Veterans Claims (“Veterans Court”) which (1) affirmed the March 16, 2006 decision
of the Board of Veterans’ Appeals (“Board”) that denied his claim to service connection
for hepatitis C (also claimed as serum hepatitis) and (2) dismissed for lack of jurisdiction
his claims concerning the legality of his enlistment and his Freedom of Information Act
(“FOIA”) requests. Haralson v. Peake, No. 06-1694, 2008 WL 372692, at *2 (Vet. App.
Feb. 6, 2008). We dismiss for lack of jurisdiction.
DISCUSSION
I.
Mr. Haralson served on active duty in the United States Army from February
1972 to February 1974. When Mr. Haralson entered into service, his entrance
examination did not indicate that he suffered from hepatitis. In addition, his in-service
medical records indicate that he did not display any risk factors for hepatitis other than
intravenous drug use. In July 1973, Mr. Haralson was admitted to a hospital and
diagnosed with “serum hepatitis secondary to drug abuse.” During his examination at
the hospital, Mr. Haralson admitted to “numerous episodes of drug abuse including
several intravenous administration[s] of amphetamines.”
From 1983 to 2003, Mr. Haralson filed several claims with Department of
Veterans Affairs (“VA”) Regional Offices (“RO”) seeking service connection benefits for
hepatitis C. The VA ultimately rejected all of the claims and Mr. Haralson appealed to
the Board. In March 2006, the Board issued its decision, concluding that Mr. Haralson
had incurred hepatitis C during active duty, but that it was caused by his abuse of
intravenous drugs. Consequently, the Board denied his claim because 38 U.S.C.
§105(a) 1 precludes claims for disabilities resulting from the veteran’s own abuse of
alcohol or drugs. In re Haralson, No. 03-13 697 (Bd. Vet. App. Mar. 16, 2006).
1
38 U.S.C. § 105(a) provides in relevant part:
An injury or disease incurred during active military, naval, or
air service will be deemed to have been incurred in line of
duty and not the result of the veteran's own misconduct
2008-7100 2
Mr. Haralson appealed the Board’s decision to the Veterans Court, arguing that
he was involuntarily administered illegal drugs by his fellow servicemen. In addition to
his contention that his disability benefits had been wrongly denied, Mr. Haralson also
raised issues concerning the legality of his enlistment and numerous FOIA requests that
he submitted to obtain parts of his service record. On February 6, 2008, the Veterans
Court affirmed the Board’s decision. The Veterans Court ruled that the Board had
properly weighed the entire record in determining that Mr. Haralson had contracted
hepatitis C during service due to his own willful misconduct, and that, accordingly, the
Board had not erred in denying his claim. Regarding Mr. Haralson’s claims concerning
his FOIA requests and the legality of his enlistment, the Veterans Court determined it
lacked jurisdiction and therefore dismissed the claims.
II.
Our authority to review decisions of the Veterans Court is governed by statute.
Pursuant to 38 U.S.C. § 7292(c) (2000), we have “exclusive jurisdiction to review and
decide any challenge to the validity of any statute or regulation or any interpretation
thereof brought under [that] section, and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a decision.” However, “[e]xcept to
the extent that an appeal under . . . chapter [72] presents a constitutional issue, [we]
may not review (A) a challenge 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).
when the person on whose account benefits are claimed
was, at the time the injury was suffered or disease
contracted, in active military, naval, or air service, whether
on active duty or on authorized leave, unless such injury or
disease was a result of the person's own willful misconduct
or abuse of alcohol or drugs. . . .
2008-7100 3
III.
We hold that we lack jurisdiction over all of Mr. Haralson’s claims. Although this
is an appeal from a Veterans Court decision affirming the denial of a claim for service
connection benefits, Mr. Haralson has not clearly articulated, or alluded to, any
particular error with the court’s decision on that score. Indeed, jurisdiction over any of
these questions aside, Mr. Haralson does not challenge the Veterans Court’s affirmance
of the factual determination that his drug abuse caused his hepatitis or the court’s
application of 38 U.S.C. § 105(a) to bar his service connection claim, or any
interpretation of that statute by the court. Rather, Mr. Haralson focuses on his wrongful
enlistment claim and his claim that the government has not responded to his FOIA
requests.
We agree with the government that, to the extent one could read Mr. Haralson’s
brief as an appeal from the Veterans Court’s affirmance of the Board’s decision denying
him a service connection benefit, we lack jurisdiction. To the extent that Mr. Haralson
disputes either the determination that his drug abuse caused his hepatitis or the
application of 38 U.S.C. § 105(a), those would be challenges to a factual determination
or the law as applied to the facts—both determinations this Court lacks jurisdiction to
review. 38 U.S.C. § 7292(d)(2).
In Mr. Haralson’s remaining claims, he argues that the government has not
supplied his service records in response to his FOIA requests, which he claims has
prevented him from proceeding with his wrongful enlistment claim. Mr. Haralson is
attempting to use this forum as a collateral means of securing a response to his FOIA
requests. Apparently, he plans to use his obtained records before the Army Board for
2008-7100 4
Correction of Military Records (“ACBMR”), where he hopes to prove his enlistment in
the Army was unlawful. The Veterans Court appropriately dismissed these same
arguments for lack of jurisdiction. The Veterans Court’s jurisdiction is limited by statute
and only allows review of Board decisions. 38 U.S.C. § 7252(c). The Veterans Court’s
limited jurisdiction does not allow Mr. Haralson’s challenges to either his alleged
unlawful enlistment or his unfulfilled FOIA requests. See, e.g., Ledford v. West, 136
F.3d 776, 779 (Fed. Cir. 1998) (ruling that the Veterans Court can only review a
“decision of the Board” and not issues never presented to the Board). This Court’s
jurisdiction over Veterans Court’s decisions is also limited by statute and we similarly
lack jurisdiction to hear Mr. Haralson’s remaining claims. 38 U.S.C. § 7292.
For the foregoing reasons, we must dismiss Mr. Haralson’s appeal for lack of
jurisdiction. If Mr. Haralson wishes to further pursue the correction of his service record
and his wrongful enlistment claim, he may proceed before the ACBMR. See 10 U.S.C.
§§ 1552, 1553. If he wishes to further pursue his unfulfilled FOIA requests, he may
proceed before the appropriate United States District Court. See 5 U.S.C § 552.
No costs.
2008-7100 5