NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7071
ROBERT C. LAITY,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Robert C. Laity, of Tonawanda, New York, pro se.
Richard P. Schroeder, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Franklin E. White, Jr., Assistant Director. Of counsel on the
brief was Ethan G. Kalett, 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 William A. Moorman
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7071
ROBERT C. LAITY,
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 05-2739, Judge
William A. Moorman.
___________________________
DECIDED: June 9, 2008
___________________________
Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.
PER CURIAM.
Appellant Robert C. Laity (“Laity”) appeals the judgment of the Court of Appeals
for Veterans Claims (“Veterans Court”), Laity v. Nicholson, No. 05-2739 (Vet. App. Aug.
27, 2007). Laity argues that the Veterans Court erred in affirming the determination of
the Board of Veterans Appeals (“Board”) that he had not established service connection
for post-traumatic stress disorder (“PTSD”) and a cardiac condition including mitral
valve prolapse syndrome (“MVPS”). Because Laity’s arguments rest on factual
determinations outside this court’s subject matter jurisdiction, we dismiss the appeal.
BACKGROUND
Laity served on active duty in the United States Navy between August 1971 and
October 1974. Laity filed two claims that are at issue in this appeal, a claim for service
connection for PTSD and a claim for service connection for MVPS. In December 2004,
the Board sustained Department of Veterans Affairs Regional Office (“RO”) decisions
rejecting these claims.
Laity appealed to the Veterans Court. In an opinion dated August 27, 2007, the
Veterans Court affirmed the Board’s denial of service connection for PTSD and MVPS.
A single judge of the Veterans Court held that the Board had not erred in denying
service connection because Laity had not provided medical evidence of the existence of
the claimed conditions or their connection to his service, and explained that Laity’s lay
testimony that he suffered from a cardiac condition and from PTSD was not sufficient
under Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Laity moved for a
decision by the full Veterans Court, but this motion was denied. Final judgment was
entered on January 7, 2008. Laity timely appealed.
DISCUSSION
We have jurisdiction to review a decision of the Veterans Court “with respect to
the validity of a decision of the Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof . . . that was relied on by the Court in making the decision.”
38 U.S.C. § 7292(a). However, 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).
With respect to MVPS, the Board found that there was no competent evidence of
service connection, and the Veterans Court concluded that this determination was not
clearly erroneous. On appeal, Laity urges that the Department of Veterans Affairs
(“VA”) should have provided him with a cardiac sonogram to diagnose MVPS and
2008-7071 2
should have obtained a private medical record that he argues establishes a diagnosis of
MVPS. However, there is no indication that a sonogram could assist in determining
service connection, and Laity admitted before the Veterans Court that the private
medical records he urges should have been obtained do not include evidence of service
connection. Laity also argues that he suffers from MVPS, and that because MVPS is a
congenital condition, he must also have suffered from MVPS during service (and may
also assert that the condition was aggravated in service). It is unclear how the assertion
that MVPS is congenital could assist Laity in demonstrating service connection. In any
event, the question of whether there was evidence of service connection is a question of
fact beyond our jurisdiction. See 38 U.S.C. § 7292(d)(2). Similarly, it appears that
Laity’s challenges to the PTSD determination are based on alleged factual errors, which
are beyond our jurisdiction.
Laity asserts in his reply brief that the Board and the Veterans Court failed to
apply 38 U.S.C. § 5107(b), which requires the VA to “consider all information and lay
and medical evidence of record” and “[w]hen there is an approximate balance of
positive and negative evidence regarding any issue material to the determination of a
matter” to “give the benefit of the doubt to the claimant“ as to that issue. Because the
Veterans Court and the Board both concluded that there was no competent evidence to
establish that Laity suffers from either PTSD or MVPS, section 5107(b) is not implicated
and cannot serve as a basis for our jurisdiction. Also, we note that Laity does not take
issue with the Board’s view that medical evidence was required under the
circumstances of this case. See Jandreau, 492 F.3d at 1377 n.4 (“Sometimes the
[testimony of a] layperson will be competent to identify [a medical] condition where the
2008-7071 3
condition is simple, for example a broken leg, and sometimes not, for example, a form
of cancer.”)
This appeal is dismissed for lack of subject matter jurisdiction.
No costs.
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