NOTE: This disposition is non-precedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

RICHARD D. STEVENS, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7051 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case No. 09-0542, Judge Lawrence B. 

Hagel. 

_________________________ 

Decided: June 17, 2011 

_________________________ 

RICHARD D. STEVENS, of Harrisburg, Pennsylvania, 

pro se. 

DANIEL B. VOLK, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent-appellee. 

With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN 
STEVENS v. DVA 2

F. HOCKEY, JR., Assistant Director. Of counsel on the 

brief was MICHAEL J. TIMINSKI, Deputy Assistant General 

Counsel. 

__________________________ 

Before RADER, PROST, and O’MALLEY, Circuit Judges. 

PER CURIAM. 

Richard D. Stevens (“Mr. Stevens”), pro se, appeals 

from a decision of the Court of Appeals for Veterans 

Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals (“Board’s”) decision denying Mr. Stevens’ 

service connection for his knee injury. Because Mr. 

Stevens raises only factual contentions, we dismiss for 

lack of jurisdiction. 

BACKGROUND

Mr. Stevens served in the United States Army from 

December of 1953 to December of 1957. Mr. Stevens 

suffers from “mild to moderate arthritis” in both knees. 

In March of 2004, Mr. Stevens filed a claim for benefits 

with the Department of Veterans Affairs (“VA”) alleging a 

service connection for an injury to his right knee. Mr. 

Stevens alleged that he injured his right knee in 1956 

when stationed in Alaska. According to Mr. Stevens, he 

was working on a telephone pole when a “bull moose 

violently shook the pole” causing him to fall to the ground 

and injure his right knee. Mr. Stevens alleges that after 

the fall he was examined at the local hospital and that his 

“knee was wrapped up.” 

The record in this case is limited, in part because the 

1973 fire at the National Personnel Records Center in St. 

Louis, Missouri apparently destroyed Mr. Stevens’ service 

medical records, save for his separation examination. Mr. 

Stevens’ separation examination noted scars on his fore-
3 STEVENS v. DVA

head and knee, and stated that his lower extremities were 

normal upon clinical evaluation. According to a report 

from an outpatient visit to the VA in November of 2000, 

Mr. Stevens stated he received a laceration on his right 

knee at the age of nine. He also reported that he had not 

been injured or hospitalized during his military service. 

The VA Regional Office denied Mr. Stevens’ claim, 

concluding that the evidence did not demonstrate a service connection to his knee injury. Following an appeal, 

the Board affirmed, concluding that “[t]he preponderance 

of the evidence [was] against” Mr. Stevens’ claim. The 

Veterans Court affirmed, finding that the Board’s determination was not clearly erroneous. The Veterans Court 

also found that the VA had satisfied its “heightened” duty 

to assist Mr. Stevens’ with his claim due to the loss of 

records in the fire. Addressing Mr. Stevens’ contention 

that the record was not an “accurate account” of his 

military service, the Veterans Court concluded that there 

was no showing of “bad faith or negligence on the part of 

[the] VA” in losing the records in the fire. Finally, because the Veterans Court held that the Board’s weighing 

of the evidence was not “clearly erroneous,” the court held 

that it could not apply the “benefit of the doubt” rule to 

Mr. Stevens’ claim. Mr. Stevens appealed to this court. 

DISCUSSION

Our review of Veterans Court decisions is limited by 

statute. Under 38 U.S.C. § 7292(a), we may review “the 

validity of a decision of the [Veterans] 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.” Unless the appeal presents a constitutional 

issue, we “may not review (A) a challenge to a factual 

determination, or (B) a challenge to a law or regulation as 
STEVENS v. DVA 4

applied to the facts of a particular case.” 38 U.S.C. 

§ 7292(d)(2). 

Mr. Stevens makes several fact-based arguments in 

his informal brief, none of which fall within this court’s 

jurisdiction. First, Mr. Stevens contends that he is entitled to “service-connected compensation” because the 

nature of his injuries is “consistent” with his claim that he 

was injured during an on-duty fall. In other words, Mr. 

Stevens contends that the Board’s determination that a 

preponderance of the evidence was against a finding of 

service connection for the injury was wrong. Whether Mr. 

Stevens’ injury is service connected is a question of fact 

though, and we do not have jurisdiction to reweigh the 

evidence considered by the Board. See Waltzer v. Nicholson, 447 F.3d 1378, 1380 (Fed. Cir. 2006) (holding that a 

challenge to the proper weight of the evidence is a question of fact, outside this court’s jurisdiction). Second, Mr. 

Stevens questions whether the limited record can be 

considered “an accurate account” of his service in the 

military. The question of whether the record is accurate 

is also a factual matter, outside the jurisdiction of this 

court. See Walters v. Shinseki, 601 F.3d 1274, 1278 (Fed. 

Cir. 2010) (holding that a claim that medical records were 

falsified was a factual question, outside of the court’s 

jurisdiction). 

Third, Mr. Stevens “request[s]” that this court apply 

the “benefit of the doubt principle” to his appeal. The 

“benefit of the doubt” rule is codified at 38 U.S.C. 

§ 5107(b) and states that the “the Secretary shall give the 

benefit of the doubt to the claimant” only “[w]hen there is 

an approximate balance” of evidence on a material issue. 

Where, as here, the Board has determined that a “preponderance of the evidence” is contrary to the veteran’s 

claim, § 5107(b) does not apply. Fagan v. Shinseki, 573 

F.3d 1282, 1287 (Fed. Cir. 2009) (“[T]he ‘benefit of the 
5 STEVENS v. DVA

doubt’ doctrine has ‘no application where the Board 

determines that the preponderance of the evidence weighs 

against the veteran's claim’ or when the evidence is not in 

‘equipoise.’”) (quoting Ortiz v. Principi, 274 F.3d 1361, 

1366 (Fed. Cir. 2001)). The Veterans Court held that the 

Board’s factual findings were not clearly erroneous and 

that therefore the “benefit of the doubt” rule was inapplicable. This court does not have jurisdiction to consider 

the proper weight of the evidence, and therefore does not 

have jurisdiction to consider the application of § 5107(b) 

to the facts of a veteran’s claim. Ferguson v. Principi, 273 

F.3d 1072, 1076 (Fed. Cir. 2001) (stating that § 5107(b) 

was “unambiguous on its face” and that the application of 

the statute to the facts of a veteran’s claim is outside this 

court’s jurisdiction). 

Finally, to the extent Mr. Stevens contends that the 

loss of his records in the 1973 fire should result in a 

presumption of a service connection for his injury, this 

court has previously considered and rejected such an 

argument. Cromer v. Nicholson, 455 F.3d 1346, 1351 

(Fed. Cir. 2006) (acknowledging the “challenges posed by 

the loss of records in the 1973 fire” but concluding that 

the difficulties are “not a sufficient basis on which this 

court can create a new rule that would alter the process 

for benefits claims”). 

For the reasons stated above, we dismiss Mr. Stevens’ 

appeal for a lack of jurisdiction. 

COSTS

Each party shall bear its own costs. 

DISMISSED