NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7046
LEROY J. RODRIGUE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Virginia A. Girard-Brady, ABS Legal Advocates, P.A., of Lawrence, Kansas,
argued for claimant-appellant.
Steven Gillingham, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. On the brief were Tony West, Assistant Attorney General,
Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Tara K. Hogan,
Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General
Counsel, and Michael G. Daugherty, Attorney, Office of the General Counsel, United
States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7046
LEROY J. RODRIGUE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-2630, Judge
Robert N. Davis
______________________
DECIDED: February 4, 2010
______________________
Before GAJARSA, PLAGER, and LINN, Circuit Judges.
GAJARSA, Circuit Judge.
Leroy J. Rodrigue appeals the decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) affirming a Board of Veterans Appeals (“Board”)
decision finding that the Department of Veterans Affairs (“VA”) has no obligation to
provide a medical opinion under 38 U.S.C. § 5103A(d) when the appellant has not
satisfied even the low threshold for proof of medical nexus that would mandate a VA
medical examination. Rodrigue v. Peake, No. 06-2630, 2008 WL 5111539, at * 3 (Vet.
App. Nov. 20, 2008). Because Mr. Rodrigue is appealing factual determinations whose
review is not within this court’s jurisdiction, the appeal is dismissed.
BACKGROUND
Leroy J. Rodrigue served on active duty in the U.S. Air Force from 1963 to 1967.
He was stationed at the Ubon Royal Thai Airforce Base in Thailand from June 1966 to
February 1967. Mr. Rodrigue contends that he is entitled to service connection for
myasthenia gravis and/or sleep apnea on the basis that he was exposed to Agent
Orange. While there is presumption of exposure and service connection for veterans
who served in Vietnam for certain diseases, the Board found that Mr. Rodrigue was not
entitled to such a presumption because he was stationed in Thailand and myasthenia
gravis and sleep apnea are not included in the statutory list of diseases. See 38 U.S.C.
§ 1116(a); 38 C.F.R. § 3.309(e).
In order to establish service connection on the basis of Agent Orange exposure,
Mr. Rodrigue was required to provide evidence of direct causation between Agent
Orange and myasthenia gravis and/or sleep apnea. See Shedden v. Principi, 381 F.3d
1163, 1167 (Fed. Cir. 2004). While there is no dispute that Mr. Rodrigue currently
suffers from myasthenia gravis and is diagnosed with sleep apnea, the Board found that
there was no medical or scientific evidence to support causation. Mr. Rodrigue’s claim
file “contain[ed] a single note from J.C., M.D., in which Dr. C. opined that
[Mr. Rodrigue’s] autoimmune myasthenia gravis could be the result of toxic or chemical
exposure.” In denying the claim, the Board found the letter from Dr. C. unpersuasive
because (1) the nature of the toxic chemicals was not identified; (2) Mr. Rodrigue has
not been shown to have been exposed to toxic chemicals including Agent Orange while
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in service; and (3) Dr. C.’s letter merely speculated that the disorder could be the result
of toxic or chemical exposure. Likewise, the Board also denied service connection for
sleep apnea based upon a total lack of proof of direct causation because the record did
not contain a medical nexus opinion linking Mr. Rodrigue’s sleep apnea to alleged
Agent Orange exposure. The Veterans Court affirmed, holding that it was unable to
conclude that the Board erred in its findings that neither myasthenia gravis nor sleep
apnea was “shown to be causally or etiologically related to service or exposure to an
herbicide agent.” Rodrigue, 2008 WL 51115239 at *3.
On appeal to the Veterans Court, Mr. Rodrigue also argued that the Board erred
in denying his request for a VA medical nexus examination under § 5103A(d) because
he had submitted lay evidence including numerous articles derived from medical books
and the internet regarding the causes, incidences, and risk factors for myasthenia gravis
in support of his claim. Under § 5103A(d) (duty to assist claimants), the Secretary must
provide a medical opinion when the evidence of record taking into consideration all
information and lay or medical evidence (including statements of the claimant):
(A) contains competent evidence that the claimant has a current
disability, or persistent or recurrent symptoms of disability; and
(B) indicates that the disability or symptoms may be associated with
the claimant’s active military, naval, or air service; but
(C) does not contain sufficient medical evidence for the Secretary
to make a decision on the claim.
38 U.S.C. § 5103A(d)(2). In referring to the evidentiary standard under § 5103A(d)(2)
for determining whether a disability may be associated with service for purposes of
triggering the VA’s duty to assist by providing a medical examination, the Veterans
Court acknowledged that evidence of such linkage had a “low threshold.” Yet the
Veterans Court concluded that Mr. Rodrigue’s internet treatise evidence was tentative,
2009-7046 3
insufficient to establish even a credible level of causality, and inadequate to show that
an association was even plausible, and as a result, not sufficient to trigger
Mr. Rodrigue’s entitlement to a VA medical examination under § 5103A(d).
Mr. Rodrigue appeals the denial of the medical nexus examination.
DISCUSSION
Our jurisdiction to review decisions of the Veterans Court is limited by statute.
Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002). Under 38 U.S.C. § 7292(a)
(2006), 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 to
interpret constitutional and statutory provisions as needed for resolution of the matter.
38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitutional
question, this court lacks jurisdiction over challenges to factual determinations or laws
or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2).
The issue presented here is within the latter proscribed categories listed in
§ 7292(d)(2). On appeal, Mr. Rodrigue attempts to frame the issue as involving
statutory interpretation. He asserts that the Veterans Court imposed a higher
evidentiary standard than necessary under § 5103A(d) by requiring him “to submit
medical evidence establishing that the claimed disability is actually associated with his
military service, and therefore evidence which actually serves to substantiate the claim,”
as a condition precedent to trigger the VA’s duty to assist with providing a medical
examination. Mr. Rodrigue incorrectly attributes the Veterans Court’s discussion of the
insufficiency of the evidence supporting the medical nexus required for service
2009-7046 4
connection to his argument that he was entitled to a medical examination. However,
Mr. Rodrigue’s arguments regarding how the Veterans Court weighed the evidence and
facts of his case to arrive at its determination are outside of this court’s limited
jurisdiction.
The Veterans Court made a factual finding that Mr. Rodrigue had “not satisfied
even the low threshold for proof of nexus that would mandate a VA medical
examination” under § 5103A(d). Our jurisdiction precludes us from reviewing factual
findings or even the application of law to facts. Because Mr. Rodrigue challenges a
factual determination, or at most the application of law to the facts, we do not have
jurisdiction to review these findings. Accordingly, the appeal is dismissed.
No Costs.
2009-7046 5