NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BILLY G. MCMILLAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7036
__________________________
Appeal from the United States Court of Appeals for Vet-
erans Claims in Case No. 09-1670, Judge Lawrence B.
Hagel.
___________________________
Decided: July 27, 2011
___________________________
DARLA J. LILLEY, Lilley Law Firm P.L.L.C., of Dainger-
field, Texas, for claimant-appellant.
ANUJ VOHRA, Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of
Washington, DC, for respondent-appellee. With him on the
brief were TONY WEST, Assistant Attorney General, JEANNE
MCMILLAN v. DVA 2
E. DAVIDSON, Director, and BRIAN M. SIMKIN, Assistant
Director. Of counsel on the brief were DAVID J. BARRANS,
Deputy Assistant General Counsel and DANA RAFFAELLI,
Attorney, of United States Department of Veteran Affairs, of
Washington, DC.
__________________________
Before NEWMAN, SCHALL, AND MOORE, Circuit Judges.
NEWMAN, Circuit Judge.
Billy G. McMillan appeals the decision of the United
States Court of Appeals for Veterans Claims (“the Veterans
Court”) which affirmed the Board of Veterans' Appeals
decision that denied his entitlement to a disability rating in
excess of 20% for diabetes mellitus, type II. 1 We have
reviewed the issues, and conclude that the appeal is based
solely on factual determinations, and thus is not within this
court's jurisdiction. The appeal is dismissed.
DISCUSSION
Mr. McMillan served on active duty in the U.S. Army
from March 1958 to March 1960 and from April 1960 to
August 1965, including service in Viet Nam. In February
2002 Mr. McMillan filed a claim for VA benefits for diabetes
mellitus. Upon medical examination, the regional office
assigned a 20% disability rating. Mr. McMillan appealed to
the Board, contending that his situation warranted a higher
disability rating for the condition, including head injuries
and rib injuries due to falls upon loss of consciousness
attributed to the diabetes. 2010 U.S. App. Vet. Claims
LEXIS 1862, at *2.
1 McMillan v. Shinseki, No. 09-1670, 2010 U.S. App.
Vet. Claims LEXIS 1862 (Vet. App. Oct. 13, 2010).
3 MCMILLAN v. DVA
In January 2008, the Board remanded Mr. McMillan's
appeal to the regional office, observing that the medical
examination did "not clearly indicate whether [Mr.
McMillan's] diabetes requires a 'regulation of activities,' as
required for the next higher rating under the applicable
diagnostic code," 38 C.F.R. §4.119, Diagnostic Code 7913.
The Board ordered the regional office to schedule another
VA examination, and that "[t]he examiner should specifi-
cally comment on whether the veteran requires insulin, oral
medication, restricted diet, regulation of activities, or hospi-
talization for hypoglycemic reactions or ketoacidosis." 2010
U.S. App. Vet. Claims LEXIS 1862, at *3. There were
further proceedings and medical findings, and ultimately
the Board declined to increase the disability rating.
On appeal to the Veterans Court, Mr. McMillan argued
that the Board based its decision on its "own unsubstanti-
ated medical opinion" because the VA physician’s report did
not render an independent opinion, but relied on Mr.
McMillan’s own statements. In response, the Secretary
argued that the Board based its decision on “a detailed
discussion of the February 2008 examiner's opinion, as well
as the additional medical evidence of record ....” 2010 U.S.
App. Vet. Claims LEXIS 1862, at *7. The Veterans Court
stated that "the Board may only consider independent
medical evidence and may not substitute its own medical
opinion," id., at *14 citing Stefl v. Nicholson, 21 Vet. App.
120, 124-25 (2007), and found that the Board relied on the
February 2008 medical examination and opinions offered
therein, and on the whole of Mr. McMillan's medical record.
On this appeal, Mr. McMillan states that the Veterans
Court erred in law, in that it improperly permitted the
Board to substitute its own medical opinion for the allegedly
inadequate opinion of the medical examiner. However, the
adequacy of a medical opinion is a question of fact, and is
MCMILLAN v. DVA 4
not subject to our review. Our jurisdiction to review deci-
sions of the Veterans Court is limited by statute and, absent
a constitutional issue, we have no authority to review a
challenge to a factual determination or a challenge to the
application of law to particular facts. 38 U.S.C. §7292(d)(2)
(2006). The issues presented by Mr. McMillan are within
the proscribed categories, and not within our jurisdiction.
The appeal must be dismissed.
DISMISSED
No costs.