NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HOUSTON R. HINTON, JR..
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7002
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1478, Judge Kenneth B. Kra-
mer.
______________________
Decided: February 5, 2014
______________________
HOUSTON R. HINTON, JR., of Stockbridge, Georgia, pro
se.
MICHAEL D. AUSTIN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director, and
KIRK T. MANHARDT, Assistant Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
2 HINTON v. SHINSEKI
eral Counsel, and CHRISTINA L. GREGG, Attorney, United
States Department of Veterans Affairs, of Washington,
DC. Of counsel was Y. KEN LEE, Attorney.
______________________
Before MOORE, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
Houston R. Hinton, Jr. appeals the decision of the
United Stated Court of Appeals for Veterans Claims
(‘Veterans Court”), affirming the Board of Veterans’
Appeals’ (“Board”) denial of entitlement to service connec-
tion for urethritis. Hinton v. Shinseki, No. 12–1478, 2013
WL 4051055 (Ct. Vet. App. Aug. 12, 2013). Mr. Hinton’s
appeal, however, does not raise any constitutional issues
and merely challenges factual determinations or the
application of the law to the facts of his case. Accordingly,
we dismiss the appeal for lack of jurisdiction.
BACKGROUND
Mr. Hinton served on active duty in the United States
Navy from September 1955 to September 1959 and from
December 1959 to July 1977. Hinton, 2013 WL 4051055,
at *1. Mr. Hinton’s service medical records show that he
underwent several treatments for acute urethritis until
October 1961. Id. His medical records during the remain-
ing 16 years of service, including a separation examina-
tion conducted in July 1977, did not reveal any additional
instances of urethritis. Id.
Mr. Hinton sought disability benefits for “urethral
discharge” in April 1987, and a VA regional office denied
his claim. Id. Mr. Hinton timely appealed to the Board,
but the Board did not address Mr. Hinton’s challenge in a
May 1990 decision. Id.
In February 1992, Mr. Hinton reported to his private
physician that he was experiencing “perineal and scrotal
discomfort, an occasional urethral discharge, a history of
HINTON v. SHINSEKI 3
nongonococcal urethritis in the past, and occasional mild
dysuria.” Id. (citation and internal quotation marks
omitted). The physician diagnosed Mr. Hinton with
urethritis and prescribed treatment with an antibacterial.
Id.
In October 2000, Mr. Hinton asked the VA to recon-
sider his claim for benefits based on his urethritis. Id.
The regional office mistakenly interpreted the request as
one to reopen Mr. Hinton’s 1987 claim, and denied the
request. The Board, however, determined in January
2005 that Mr. Hinton’s claim for benefits for urethritis
remained pending because no final decision had been
issued regarding that claim. Id. The Board remanded
Mr. Hinton’s claim for a VA medical examination.
The VA medical examination occurred in February
2005. The examiner reviewed Mr. Hinton’s medical
history and conducted a urinalysis. Id. The examiner
determined that there was no evidence of current urethri-
tis and noted that the last documented occurrence of
urethritis occurred in 1992.
The Board denied Mr. Hinton’s claim in February
2006. Id. at *2. In March 2008, however, the Veterans
Court granted the parties’ joint motion to remand for
consideration of whether Mr. Hinton’s 1992 diagnosis of
urethritis was related to the urethritis Mr. Hinton experi-
enced during military service. Id.
In February 2009, the same VA examiner who per-
formed the February 2005 examination determined that
the 1992 occurrence of urethritis was likely not related to
the urethritis Mr. Hinton experienced during service. Id.
at *2. The examiner observed that Mr. Hinton was treat-
ed several times for urethritis while on active duty, but
that his final treatment in 1960 was presumably success-
ful because there were no further documented problems
with urethritis until 1992, over 30 years later. Id. The
examiner also observed that there was no evidence that
4 HINTON v. SHINSEKI
the 1992 incidence of urethritis was caused by the same
organisms found during military service. Id.
In April 2011, Mr. Hinton submitted a letter from his
private physician, Dr. James Eaton, who stated his opin-
ion that Mr. Hinton suffered from chronic urethritis that
was contracted in 1956 while on active duty. Id. Mr.
Hinton had previously submitted a letter from Dr. Eaton
in August 2009 stating that Mr. Hinton had some symp-
toms of chronic prostatitis, but the letter made no men-
tion of urethritis. Id.
In January 2012, the Board denied Mr. Hinton’s claim
related to his urethritis. Id. The Board determined that
the VA examiner’s opinion was more persuasive than that
of Mr. Hinton’s private physician. Id. at *3. In reaching
its conclusion, the Board observed: (1) the VA examiner’s
opinion, unlike that of Dr. Eaton, was based on clinical
data; (2) Dr. Eaton’s conclusion that Mr. Hinton suffered
from chronic urethritis conflicted with clinical evidence
indicating that Mr. Hinton was not afflicted with urethri-
tis in February 2005; and (3) Dr. Eaton’s 2011 letter
concluding that Mr. Hinton appears to have chronic
urethritis was in tension with Dr. Eaton’s letter from
2009, which stated Mr. Hinton was only being treated for
prostatitis. Id.
Mr. Hinton appealed the Board’s determination to the
Veterans Court, “argu[ing] only that the Board provided
inadequate reasons or bases for favoring the negative
February 2009 VA medical opinion over the private
opinion of Dr. Eaton.” Id. at *2. The Veterans Court
affirmed the Board’s decision, concluding that “the Board
offered a thorough and reasoned explanation for rejecting
Dr. Eaton’s statement” that Mr. Hinton suffered from
chronic urethritis that began during military service. Id.
at *3. This appeal followed.
HINTON v. SHINSEKI 5
ANALYSIS
“This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute.” Kyhn v. Shinseki,
716 F.3d 572, 575 (Fed. Cir. 2013). Under 38 U.S.C.
§ 7292(a), this court may review “the validity of a decision
of the [Veterans] Court on a rule of law or any statute or
regulation . . . or any interpretation thereof . . . that was
relied on by the Court in making the decision.” Section
7292(d)(2), however, provides that, “[e]xcept to the extent
that an appeal . . . presents a constitutional issue, [this
court] may not review (A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.”
On appeal, Mr. Hinton reiterates his challenge that
the Board did not provide adequate reasons or bases for
favoring the VA examiner’s opinion over the opinion of Dr.
Eaton, Mr. Hinton’s private physician. See 38 U.S.C.
§ 7104(d)(1) (requiring decisions of the Board to include “a
written statement of the Board’s findings and conclusions,
and the reasons or bases for those findings and conclu-
sions, on all material issues of fact and law presented on
the record”). According to Mr. Hinton, the Board based its
determination on the mistaken notion that Dr. Eaton’s
opinion was not based on clinical data. Appellant’s In-
formal Br. App’x at 7. Consequently, in Mr. Hinton’s
view, the Board did not set out an adequate basis for
favoring VA examiner’s opinion over that of Dr. Eaton
because the Board’s decision was based on a faulty prem-
ise.
Although Mr. Hinton frames this issue as one “in-
volv[ing] the validity or interpretation of a statute or
regulation,” his argument on this point relates exclusively
to the Board’s resolution of a factual dispute. Appellant’s
Informal Br. Resp. No. 2. In his brief, Mr. Hinton dis-
putes the Board’s determination that “appellant’s treating
physician was less credible than that [of] the VA medical
6 HINTON v. SHINSEKI
examiner.” Appellant’s Informal Br. App’x at 7. Mr.
Hinton alleges that, contrary to the Board’s conclusion,
Dr. Eaton’s opinion was based on clinical data, placing it
on firmer footing than the Board realized. Id. This
challenge, however, pertains only to whether the Board
properly weighed the evidence before it, not to whether
the Board discharged its obligation to explain its decision-
making under 38 U.S.C. § 7401(d)(1). It is not the ab-
sence of explanation with which Hinton takes issue; it is
the accuracy of the detailed explanation provided. We
lack jurisdiction to review this factual determination. See
38 U.S.C. § 7292(d)(2); see also Cook v. Principi, 353 F.3d
937, 940–41 (Fed. Cir. 2003) (finding no jurisdiction over
a claim based on “an alleged failure of the Board to satisfy
its statutory requirements under § 7104(d)(1)” where “the
review requested . . . would unavoidably require a review
of the Veterans Court’s application of law to the facts”).
Mr. Hinton further alleges that the Board erred by
failing to apply 38 U.S.C. § 5107(b), which provides:
“When there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.” Mr. Hinton also
asserts that the Board failed to adhere to 38 C.F.R.
§ 3.102, which states: “When, after careful consideration
of all procurable and assembled data, a reasonable doubt
arises regarding service origin, . . . such doubt will be
resolved in favor of the claimant.”
The issues Mr. Hinton raises, however, pertain to the
Board’s resolution of factual questions or its application of
the law to the facts of the case, and are thus beyond our
jurisdiction. See 38 U.S.C. § 7292(d)(2). Mr. Hinton
suggests that, when the evidence is properly assessed, his
case presents a close question regarding whether he was
suffering from chronic urethritis that originated during
his military service. Appellant’s Informal Br. App’x at 7.
And, under 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102, the
HINTON v. SHINSEKI 7
Board was required to resolve this close factual question
in his favor. The Board, however, did not find that the
evidence was in “approximate balance,” as is required for
§ 5107 to apply. Instead, the Board determined that the
VA examiner’s opinion was more persuasive than that of
Dr. Eaton. See Hinton, 2013 WL 4051055, at *3. Thus, to
find that the Board erroneously failed to give Mr. Hinton
the benefit of the doubt would require us to re-weigh the
evidence. As a consequence, Mr. Hinton’s challenge
presents an issue that we lack jurisdiction to address. See
38 U.S.C. § 7292(d)(2); see also Ferguson v. Principi, 273
F.3d 1072, 1076 (Fed. Cir. 2001) (finding no jurisdiction
over a challenge that the Veterans Court “misinterpreted
§ 5107(b) because it affirmed the Board’s holding that
§ 5107(b) did not apply”).
CONCLUSION
Mr. Hinton’s arguments on appeal merely challenge
factual determinations or the application of law to the
facts of his case. Because we lack jurisdiction to review
the challenges raised, Mr. Hinton’s appeal is dismissed.
DISMISSED
COSTS
No costs.