NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MICHAEL W. HARLSTON, SR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7167
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-4379, Judge Ronald M.
Holdaway.
____________________________
Decided: January 12, 2012
____________________________
MICHAEL W. HARLSTON, SR., of St. Louis, Missouri, pro
se.
ELLEN M. LYNCH, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
HARLSTON v. DVA 2
ney General, JEANNE E. DAVIDSON, Director, and BRIAN
M. SIMKIN, Assistant Director. Of counsel on the brief
were DAVID J. BARRANS, Deputy Assistant General Coun-
sel, and JONATHAN TAYLOR, Attorney, United States
Department of Veteran Affairs, of Washington, DC.
__________________________
Before RADER, Chief Judge, and LOURIE and LINN, Circuit
Judges.
PER CURIAM.
Michael W. Harlston, Sr. (“Harlston”) appeals from a
decision of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”). The Veterans Court
affirmed the decision of the Board of Veterans’ Appeals
(“the Board”) denying entitlement to service connection
for a back condition. Harlston v. Shinseki, No. 09-4379,
2011 WL 1534555 (Vet. App. Apr. 25, 2011). For the
reasons indicated below, we dismiss for lack of jurisdic-
tion.
BACKGROUND
Harlston, who served on active duty in the U.S. Army
from March 1971 to March 1973, filed a claim at the
Department of Veterans Affairs (“VA”) in October 2003
seeking disability benefits for a back condition and a
bilateral knee disorder. Along with his claims, Harlston
submitted a statement from another service member
(Gaskins) who served with Harlston in the Army. Gas-
kins’ statement described the training exercises that he
and Harlston underwent, including extended physical
training, hand-to-hand combat, and extended marches
carrying 40-pound backpacks. Gaskins also recalled a
training incident in which Harlston fell from a steel cable
3 HARLSTON v. DVA
suspended over a water-filled pit and landed awkwardly
on his back, sustaining injuries. Harlston also alleged
that he suffered back and knee injuries while lifting
heavy caskets as an honor guard for military burials.
Medical records indicate that Harlston was seen for a
“low backache” in both April and August of 1971.
The VA regional office (“RO”) denied Harlston’s claims
in May 2004. Harlston appealed, and in August 2007, the
Board remanded for the VA to provide a medical nexus
opinion as to whether any diagnosed disability was re-
lated to Harlston’s military service. In support of his
appeal, Harlston submitted to the Board a statement from
a second individual (Lee) who indicated that he served
with Harlston in July 1971 and remembered Harlston
being on numerous sick calls for stomach, back, and knee
problems. In June 2009, a VA medical examiner assessed
Harlston’s physical condition and reviewed his service
medical records and claims file. The examination re-
vealed no evidence of any knee disorder, but the examiner
diagnosed Harlston with a lumbar strain. In view of the
examination and Harlston’s medical records, however, the
examiner concluded that the lumbar strain was “not
related to the low backache for which the Veteran was
seen in August of 1971 while in the military nor for which
he was seen in April of 1971 while in the military.”
Harlston, 2011 WL 1534555 at *1. The Board thus denied
Harlston’s claims in September 2009, holding that he was
not entitled to service connection for his back strain or the
asserted knee disorder.
Harlston then appealed the Board’s decision on his
lumbar strain to the Veterans Court. 1 On appeal, Harl-
1 Harlston’s appeal to the Veterans Court focused
solely on the Board’s denial of service connection for his
HARLSTON v. DVA 4
ston argued that the June 2009 examination was inade-
quate because the examiner failed to consider the “buddy
statements” submitted by Gaskins and Lee on Harlston’s
behalf. The Veterans Court disagreed and noted that the
examiner reviewed and considered Harlston’s claims file,
which included the buddy statements at the time of the
June 2009 examination. Harlston, 2011 WL 1534555 at
*2. The Veterans Court held that the examination was
sufficient for rating purposes because the examiner
reviewed Harlston’s medical history, performed a physical
examination, and explained his reasons for concluding
that Harlston’s current back condition was unrelated to
his prior military service. Id. Because nothing in the
record contradicted the presumption that the examiner
considered all relevant evidence and competently per-
formed his duties, the Veterans Court affirmed the
Board’s decision denying entitlement to service connection
for Harlston’s lumbar strain condition. Id. Harlston
subsequently appealed to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is circumscribed by statute. Under 38 U.S.C.
§ 7292(a), a party may obtain review “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
(other than a determination as to a factual matter) that
was relied on by the Court in making the decision.”
Under § 7292(d)(2), however, absent a constitutional issue
we “may not review (A) a challenge to a factual determi-
nation, or (B) a challenge to a law or regulation as applied
to the facts of a particular case.”
lumbar strain and abandoned the parallel claim for a
knee condition. Harlston, 2011 WL 1534555 at *1.
5 HARLSTON v. DVA
In his informal brief, Harlston argues that the “VA
did not give the veteran benefit of doubt,” apparently
referring to the benefit-of-the-doubt doctrine enunciated
in 38 U.S.C. §5107(b). Section 5107(b) requires that
“[w]hen 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.” In finding that “the
appellant does not point to anything in the record” to
overcome the Board’s determination denying service
connection for his lumbar strain, Harlston, 2011 WL
1534555 at *2, neither the Board nor the Veterans Court
discussed § 5107(b), which, by its terms, applies only
when the evidence for and against the veteran’s claim is
in “approximate balance.” By arguing that the Board
should have applied § 5107(b), Harlston argues by impli-
cation that the evidence of record was in equipoise, con-
trary to the Board’s explicit findings. This argument thus
boils down to disagreement with the Board’s factual
determinations and its application of law to those facts,
which lie beyond the scope of our jurisdiction under
§ 7292(d)(2). See Ferguson v. Principi, 273 F.3d 1072,
1075-76 (Fed. Cir. 2001). We are therefore precluded
from considering these arguments.
Harlston’s informal response brief consists of further
fact-based arguments that we similarly lack jurisdiction
to consider. Harlston also provides a lengthy recitation of
the procedures applicable for filing an appeal before the
Board paired with naked allegations that the VA commit-
ted unspecified “legal and procedural errors.” We find
these arguments too vague and conclusory to merit con-
sideration.
For the foregoing reasons, we must dismiss Harlston’s
appeal for lack of jurisdiction.
HARLSTON v. DVA 6
DISMISSED
COSTS
No costs.