NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAVERNE WASHINGTON,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7018
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3678, Judge Mary J. Schoelen.
______________________
Decided: August 8, 2014
______________________
LAVERNE WASHINGTON, of North Little Rock, Arkan-
sas, pro se.
ERIC E. LAUFGRABEN, Trial Attorney, Commercial Lit-
igation 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
SCOTT D. AUSTIN, Assistant Director. Of counsel on the
brief were DAVID J. BARRANS, Deputy Assistant General
2 WASHINGTON v. MCDONALD
Counsel, and LARA K. EILHARDT, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
______________________
Before NEWMAN, MOORE, and REYNA, Circuit Judges.
PER CURIAM.
Laverne Washington appeals pro se the final decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming a determination by the
Board of Veterans Appeals (“Board”) denying Mr. Wash-
ington’s claim for disability compensation for fibromyal-
gia. 1 Because Mr. Washington’s arguments on appeal
concern only challenges to factual determinations and the
application of law to the facts of this case, we lack juris-
diction over the appeal and dismiss.
BACKGROUND
Mr. Washington served on active duty in the United
States Army from July 1975 to March 1981. During this
time, Mr. Washington was treated on several occasions for
complaints related to his joints. In March 1977, he re-
ported pain in his right side. He was referred for x-rays
and returned to duty. In April 1980, he presented to the
dispensary with a swollen left ankle and was diagnosed
with Achilles tendonitis. In June 1980, Mr. Washington
reported knee pain and was diagnosed with patellar
contusion. In August 1980, his chest pain was assessed
as muscle spasm. Following complaints of pain in his
right shoulder, his right arm and his back, he was diag-
nosed with a muscle contusion and a muscle strain in
October 1980.
1 Washington v. Shinseki, No. 11-3678 (Vet. App.
Sept. 9, 2013).
WASHINGTON v. MCDONALD 3
In July 1981, Mr. Washington completed a “Report of
Medical History” for enlistment in the Army National
Guard in which he denied a history of swollen or painful
joints; arthritis, rheumatism, or bursitis; bone, joint, or
other deformity; lameness; painful or trick shoulder or
elbow; recurrent back pain; trick or locked knee; and foot
trouble. In January 1982, Mr. Washington submitted a
claim for VA benefits. He did not include any musculo-
skeletal complaints in his claim. A VA general medical
examination conducted in September 1982 noted that Mr.
Washington’s musculoskeletal system was normal.
According to VA treatment records from March 1989, he
did not report any physical problems at the time.
Years later, Mr. Washington served again on “active
duty for training” from October 5 to October 14, 2001. In
January 2005, he reported bilateral shoulder pain that
had started approximately two weeks earlier. The VA
diagnosed Mr. Washington with fibromyalgia in October
2005. The medical report noted that he complained of
right hand pain that had started approximately two years
previously. A musculoskeletal examination revealed
“tenderness over areas of the trapezius, deltoids bilateral-
ly” and over the right hand and most of the right arm,
with limited range of motion for both shoulders resulting
from pain. A private physician confirmed Mr. Washing-
ton’s fibromyalgia diagnosis in January 2006.
In January 2008, Mr. Washington filed a claim for
disability compensation for fibromyalgia alleging that his
condition was incurred in the line of duty at some point
between March 1980 and March 1981. He stated that he
experienced chronic pain and stiffness in his muscles and
joints, especially in his shoulder, side, knees, hand, and
wrist, since 1982.
In April 2008, the VA Regional Office (RO) denied Mr.
Washington’s claim. Mr. Washington filed a Notice of
Disagreement and submitted a statement in support of
4 WASHINGTON v. MCDONALD
his claim. He argued that fibromyalgia is a form of ar-
thritis and noted that arthritis is a chronic disease subject
to presumptive service connection pursuant to 38 C.F.R. §
3.309(a). In October 2009, Mr. Washington testified
before the Board that the physical activity performed
during military service contributed to his development of
fibromyalgia and that he experienced the same type of
symptoms during service. Based on his testimony and
records, the Board in January 2010 remanded Mr. Wash-
ington’s claim for a VA examination to determine whether
the condition was caused or aggravated by his service.
The VA conducted a muscles examination on July 7,
2010. The Examiner confirmed Mr. Washington’s fibrom-
yalgia diagnosis but concluded that it is less than likely
that the fibromyalgia began in military service. The
Examiner based his opinion on the fact that there was no
diagnosis of fibromyalgia during Mr. Washington’s peri-
ods of service, and the first diagnosis occurred years after
active service was terminated in 1981. He also could not
find in the claims file any consistent record of treatment
for fibromyalgia-like symptoms until the diagnosis was
made in 2005. Accordingly, the VA continued to deny Mr.
Washington’s claim.
The Board affirmed the VA’s determination. The
Board assigned “high probative value” to the VA Examin-
er’s opinion, finding it was reasoned and based on a
complete review of the record, interview and examination.
The Board acknowledged Mr. Washington’s testimony
that he experienced symptoms during service, but found
the testimony outweighed by the absence of any records
showing that those symptoms manifested during service.
The Board also noted that Mr. Washington’s diagnosis
was based on tenderness in the trapezius muscles, del-
toids, and right hand and arm, but the Examiner found no
evidence of similar complaints during service. Finding
that the Examiner’s opinion was more probative than Mr.
WASHINGTON v. MCDONALD 5
Washington’s own testimony, the Board concluded that
his fibromyalgia was unrelated to service.
Mr. Washington appealed to the Veterans Court,
which affirmed the Board’s decision on September 9,
2013. The Veterans Court found that the Board properly
assessed the evidence and sufficiently supported its
decision. Regarding Mr. Washington’s testimony, the
court found that the Board adequately explained its
reasons for giving more weight to the VA Examiner’s
opinion than to Mr. Washington’s lay testimony. The
Veterans Court also rejected Mr. Washington’s theory
that service connection should be presumed under 38
C.F.R. § 3.309(a) because, even accepting Mr. Washing-
ton’s argument that fibromyalgia is a form of arthritis, he
had not identified any evidence that would show that the
disease became manifest to a degree of 10% or more
during service or within one year of discharge, as required
by the regulation. Mr. Washington timely appealed to
this court.
DISCUSSION
We lack jurisdiction to entertain Mr. Washington’s
appeal. Our review of decisions by the Veterans Court is
limited to challenges to the validity or interpretation of
any statute or regulation. 2 We are precluded from re-
viewing factual determinations or the application of law
to fact except to the extent that an appeal presents a
constitutional issue. 3
Mr. Washington’s arguments on appeal constitute a
challenge to factual determinations or the application of
law to facts, and do not present a constitutional issue.
Mr. Washington argues that the Veterans Court erred in
denying service connection because clear and convincing
2 38 U.S.C. § 7292(c).
3 38 U.S.C. § 7292(d)(2).
6 WASHINGTON v. MCDONALD
evidence establishes that his fibromyalgia symptoms
began in 1976 and 1977. Addressing Mr. Washington’s
arguments would require review of the Veterans Court’s
factual determination that the Board’s finding of no
service connection was correct. We lack jurisdiction to
reweigh the evidence.
Mr. Washington also argues that the Veterans Court’s
decision “involved the validity” of 38 C.F.R. §§ 3.303(b)
and 3.303(d). Section 3.303(b) provides that, when a
chronic disease is shown to have manifested in service,
subsequent manifestations of the same chronic condition
are presumed service connected. When the disease is first
diagnosed after discharged, section 3.303(d) allows service
connection to be granted if all the evidence establishes
that the disease was incurred in service. The Veterans
Court, however, did not interpret these regulations, or
any other regulation, when it affirmed the Board’s finding
of no service connection. Rather, the Veterans Court
applied the law to the facts of this case, a determination
that is not reviewable by this court.
CONCLUSION
Because Mr. Washington’s appeal presents no issues
within our jurisdiction, the appeal is
DISMISSED
COSTS
Each party shall bear its own costs.