Case: 12-7143 Document: 11 Page: 1 Filed: 12/26/2012
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MELVIN H. ALEXANDER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7143
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-4045, Judge Robert N.
Davis.
Before NEWMAN, PROST and WALLACH, Circuit Judges.
PER CURIAM.
ORDER
Melvin Alexander appeals from a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) upholding the decision of the Board of Veterans’
Appeals (Board) denying him entitlement to Department of
Veterans Affairs (DVA) disability compensation benefits for
a heart condition. We dismiss.
Case: 12-7143 Document: 11 Page: 2 Filed: 12/26/2012
MELVIN ALEXANDER v. SHINSEKI 2
Mr. Alexander served on active duty in the U.S. Army
from January 1972 to January 1974. While in service, he
reported chest pains, but no condition was diagnosed. His
separation examination in 1973 showed that his heart was
normal.
In 2001, Mr. Alexander was treated for a prominent
heart murmur, and hospitalized with chest pains. He
subsequently filed a claim seeking DVA disability compen-
sation benefits for a heart condition. On Mr. Alexander’s
behalf, his private physician submitted a written statement
indicating that he had treated Mr. Alexander for chest
pains, which were highly suggestive of angina pectoris and
likely related to the pains Mr. Alexander reported during
service. The regional office (RO) of the DVA denied the
claim, and Mr. Alexander appealed to the Board.
In a 2007 decision, the Board remanded the case to the
RO for further development pursuant to the DVA’s statu-
tory duty to assist him in presenting his claim. See 38
C.F.R. 3.159(a)(1). Along with other measures, the Board
directed the RO to obtain a “VA medical examination with
an appropriate physician (e.g., a cardiologist),” who was to
comment on the incidents of chest pain in service and the
statement of Mr. Alexander’s private physician.
On remand, a nurse practitioner reviewed Mr. Alexan-
der’s records, conducted an examination, and issued a
report that was reviewed and co-signed by a physician.
That report concluded that a relationship between Mr.
Alexander’s current condition and his service was unlikely.
Based on that report and a review of the record, the RO
again denied service connection. Mr. Alexander then again
appealed to the Board, which upheld the RO’s determina-
tion. The Board noted that while the 2007 remand order
indicated that Mr. Alexander was to be scheduled for an
examination with an appropriate physician, the nurse
practitioner that conducted the examination was compe-
Case: 12-7143 Document: 11 Page: 3 Filed: 12/26/2012
3 MELVIN ALEXANDER v. SHINSEKI
tent, and thus the exam was in sufficient compliance with
the remand order and governing regulations.
Mr. Alexander then appealed to the Veterans Court.
Like the Board, the Veterans Court rejected Mr. Alexan-
der’s argument that the RO had failed to comply with the
Board’s 1997 remand instructions. The Court noted that
while the remand order listed a cardiologist as an exam-
ple of an appropriate physician, the order did not specify
that a cardiologist had to conduct the exam or express a
medical opinion. The court went on to explain that while
the examination did not strictly comply with the terms of
the 2007 remand order, the remand proceedings were in
substantial compliance because the nurse practitioner
was sufficiently competent and trained to provide a
medical examination that met the regulatory require-
ments. The Veterans Court therefore affirmed the deci-
sion of the Board, and Mr. Alexander filed a timely appeal
from that decision with this court.
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Under 38 U.S.C. § 7292(a),
this court has jurisdiction over rules of law or the validity
of any statute or regulation, or an interpretation thereof
relied on by the Veterans Court in its decision. This court
may also entertain challenges to the validity of a statute
or regulation, and may interpret constitutional and statu-
tory provisions as needed for resolution of the matter. 38
U.S.C. § 7292(c). In contrast, except where an appeal
presents a constitutional question, we lack jurisdiction
over challenges to factual determinations or laws or
regulations as applied to the particular case. 38 U.S.C.
§ 7292(d)(2).
Mr. Alexander’s informal brief indicates that he does
not seek to challenge a constitutional issue. Nor does he
mention a rule of law or a statutory or regulatory inter-
pretation of which he seeks review. Instead, Mr. Alexan-
Case: 12-7143 Document: 11 Page: 4 Filed: 12/26/2012
MELVIN ALEXANDER v. SHINSEKI 4
der’s brief merely asks the court to look into his case more
closely than the Veterans Court. In light of Mr. Alexan-
der’s brief, we must reach the conclusion that he has not
demonstrated that this court has jurisdiction over his
case, and that we must dismiss.
We note that even if the court were to liberally read
Mr. Alexander’s brief as challenging whether the nurse
practitioner conducted medical examination was in com-
pliance with the Board’s remand instructions, the essence
of that argument would simply be a disagreement over a
factual matter, as to which this court does not have
jurisdiction. See Dyment v. Principi, 287 F.3d 1377, 1381
(Fed. Cir. 2002) (holding that the claimant’s disagreement
with whether a medical expert substantially complied
with the Board’s remand order was a factual matter
outside of this court’s review).
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s19