NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT L. WASHINGTON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7129
__________________________
Appeal from the United States Court of Appeals for Vet-
erans Claims in Case No. 09-2889, Judge William A.
Moorman.
___________________________
Decided: December 22, 2011
___________________________
ROBERT L. WASHINGTON, of Albany, Georgia, pro se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, of Washington, DC, for respondent-appellee. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KIRK T. MANHARDT,
WASHINGTON v. DVA 2
Assistant Director. Of counsel on the brief were DAVID J.
BARRANS, Deputy Assistant General Counsel and BRIAN D.
GRIFFIN, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before NEWMAN, PLAGER, AND LINN, Circuit Judges.
NEWMAN, Circuit Judge.
Robert L. Washington appeals the decision of the United
States Court of Appeals for Veterans Claims (“the Veterans
Court”) affirming the decision of the Board of Veterans’
Appeals (“the Board”) that denied his requests for service
connection for a left spermatocele. 1 The issue on appeal is
whether Mr. Washington received an adequate medical
examination, this is a question of fact, and is not within this
court’s appellate jurisdiction. The appeal is dismissed.
DISCUSSION
Mr. Washington served on active duty in the U.S. Army
for two tours, the first between 1966 and 1968, and the
second between 1970 and 1973. During his service Mr.
Washington received various treatments for problems with
his genitourinary system. His 1973 separation examination
found his genitourinary system to be normal.
In January 2000, Mr. Washington filed a claim in the
Department of Veterans Affairs (“VA”) Regional Office
(“RO”) in Atlanta, Georgia, seeking service connection for a
1 Robert L. Washington v. Eric K. Shinseki, Secretary
of Veterans Affairs, No. 09-2889, 2011 WL 1220370, 2011
U.S.App. Vet. Claims LEXIS 707 (Vet.App. March 31, 2011).
A spermatocele is a cyst of the epididymis containing
sperm. STEDMAN’S MEDICAL DICTIONARY 1644, 1645
(26th ed. 1995).
3 WASHINGTON v. DVA
lump in his left groin, which became the service-connection
claim for a left spermatocele. Mr. Washington received
various treatments, and proceedings before the VA included
an appeal to the Board and remand to the RO for clarifica-
tion of a 2003 medical examination. The Board observed
that the 2003 “examiner did not specifically address
whether it was at least as likely as not that [Mr. Washing-
ton’s] current left spermatocele is etiologically related to his
symptomatology in service.” No. 03-27 749, at 18, 2005 WL
3925095 (Bd. Vet. App. Dec. 30 2005); R.A. 46. The Board
also observed that the “examiner did not discuss whether
[Mr. Washington] had a preexisting disorder prior to his
second period of active duty service, and if so, whether the
preexisting service [sic] was permanently aggravated during
that second period of service.” Id. The Board ordered a
clarifying medical opinion to determine “the nature and
etiology of [Mr. Washington’s] current left spermatocele.”
Id.
The clarifying opinion, issued on March 8, 2006, found
that Mr. Washington’s in-service groin cyst “had absolutely
no connection or it is as unlikely as not that the cyst had
any connection with the spermatocele that developed on the
left side some time later; in actual fact, it developed some
thirty years after the initial event.” 2011 WL 1220370, at
*3; R.A. 89. The Board maintained its denial of service
connection for Mr. Washington’s left spermatocele. Specifi-
cally, the Board found that there was insufficient evidence
that Mr. Washington actually had a left spermatocele
during his first or second period of service; there was no
evidence that Mr. Washington sought treatment for sperma-
tocele for decades following the termination of his service;
nor was there sufficient medical evidence linking Mr. Wash-
ington’s current spermatocele to his in-service symptoma-
tology. No. 03-27 749, at 11-14 (Bd. Vet. App. Jun. 4 2009);
R.A. 18-21.
WASHINGTON v. DVA 4
On appeal to the Veteran’s Court Mr. Washington ar-
gued that the Secretary violated his duty to assist under 38
U.S.C. §5103A by “failing to provide an adequate medical
examination with respect to [his] spermatocele claim.” 2011
WL 1220370, at *2. Specifically, he asserted that the exam-
iners failed to discuss the relationship between his sperma-
tocele and the symptoms he experienced in service. The
Veteran’s Court found no clear error in the Board’s analysis,
and affirmed the Board’s decision.
On appeal to this court, Mr. Washington argues that the
Veterans Court erred by failing to order a proper and ade-
quate medical examination for his left spermatocele, and
violated the VA’s duty to assist defined in 38 U.S.C. §
5103A. This court possesses limited jurisdiction to review
decisions by the Veterans Court. Absent a constitutional
issue, this court “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); Bastien v. Shinseki, 599 F.3d 1301, 1305 (Fed.
Cir. 2010). Thus, as here, where no constitutional issue is
presented, “[t]his court may not review the Veterans Court’s
factual findings or its application of law to facts.” Singleton
v. Shinseki, 659 F.3d 1332, 1334 (Fed. Cir. 2011).
The adequacy of a medical examination is a question of
fact, as is compliance with the duty to assist. See Nolen v.
Grober, 14 Vet. App. 183, 184 (2000) (“The Board’s determi-
nation of whether the Secretary has fulfilled his duty to
assist generally is a finding of fact . . . .”). The Board and
the Veterans Court considered these questions, and ex-
plained the reasons for finding that the VA had fulfilled the
duty to assist the Veteran. No. 03-27 749, at 8 (Bd. Vet.
App. Jun. 4 2009); R.A. 15. Because Mr. Washington chal-
lenges factual determinations, including the application of
5 WASHINGTON v. DVA
law to the facts, we have no authority to review these find-
ings. 2 Accordingly, the appeal must be dismissed.
Each party shall bear its own costs.
DISMISSED
2 It is somewhat unclear as to what issues Mr. Wash-
ington is asking this court to review. The government
contends that Mr. Washington is no longer pursuing his
claim for service connection with respect to diabetes melli-
tus, and this court agrees. However, even if Mr. Washing-
ton intended to contest his diabetes mellitus disability
rating, this court would not have jurisdiction as that finding
did not involve any legal determinations.