N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
VERDELL JACKSON, Claimant

- Appellant,

v.

E ric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee.

______________________

2012

- 7179

______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 10

- 4295, Judge Ronald M. Hold away.

______________________

Decided: June 10 , 2013

______________________

V ERDELL J ACKSON , o f Crosby, Texas, pro se.

M ICHELLE R. M ILBERG , Trial Attorney, United States Department of Justice, of Washington, DC, for defendant

appellee. With him on the brief were S TUART F. D ELERY
, Principal Deputy Assistant Attorney General, J EANNE E.
D AVIDSON
, Director, and S COTT D. A USTIN , Assistant
Director.

______________________VERDELL JACKSON v. SHINSEKI 2 Before N EWMAN
, C LEVENGER
, and W ALLACH
, Circuit Judges.

N EWMAN
, Circuit Judge

. Navy veteran Verdell Jackson appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the denial of her disability claim for hysterectomy caused by severe uterine prolapse

. The Board of Veterans Appeals (“Board”) found that the appellant’s condition was not ser vice connected, and therefore not entitled, and the Veterans Court affirmed

. 1 We affirm the judgment

. B ACKGROUND
The appellant served in the Navy from 1982 to 1998

. In 1989, she gave birth to a son while in service . No serious medical complications were discovered in postpartum service medical exams , despite the fact that the baby was born vaginally weighing over 9 pounds, and the labor was undisputedly difficult

. The appellant was honorably discharged on December 31, 1998 . L ess than o ne year later , she was diagnosed by a private physician with a “ severely retroverted uterus and mild uterine prolapse .” Jackson Encl. #3 at 2 . T he appellant received treat ment from 1999 to 2001 , and, i n May 2001, underwent a total hysterectomy.

In July 2001, t he appellant applied to the Department of Veterans Affairs (“VA”) for service connected disability in view of her hysterectomy, post -u terine prolapse

. The appellant stated that her uterine prolapse was attribut able to complications from the child bi rth in 1989 , ci t ing medical texts which indicated that uterine prolapse can be associated with childbirth

.

1 Jackson v. Shinseki , No. 10

- 4295 (Vet. App. Apr. 11, 2012) (“ Vet. Ct. Op. ”) aff’g Jackson v. Shinseki , No. 3

– 29 466 ( Bd. Vet. App. Oct. 7, 2010 ) (“ Bd. Op .”)

.VERDELL JACKSON v. SHINSEKI 3 T he Board denied the a p pellant’s claim, relying on three medical opinions stating that although uterine prolapse can be caused by childbirth, the app ellant’s uterine prolapse was “less than likely ” incurred during active duty given her non

- diagnosis for 10 years post childbirth. Bd. O p. at 9. None of the examiners could state with certainty that the appellant’s childbirth was a factor in her post

- service uterine prolapse

. Id. The examiners found that the passage of time with no diagn osis suggested no service connection. Id. The Board adopted th e opinions of the examiners, and the Veterans Court concluded that the Board’s findings were not clearly

erroneous. Vet. Ct. Op. at 8

. D ISCUSSION

O ur review of decisions of the Veterans Court is ci rcumscribed by statute. We re view decisions of the court only as to the “validity” or “interpretation” of any statute or regula tion

, 38 U.S.C. § 7292(a) , and a bsent a constit utional issue, we “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).

The appellant contends that the Veterans Court and Board misinterpreted the service connection statutes and regulations entitling her to a presumption of service connection. Jackson Br. 1

– 2. (“I was diagnosed within the one year presumptive period”). The appellant also

states that the Board misinterpreted the “bene fit of the doubt ” rule, codified in 38 U.S.C. §5107(b), because there was an approximate balance of positive and negative evidence before the Board

, and yet it “never evaluated or addressed” the evidence favorable to the app ellant’s claim. Jackson Br. 2.

The government contends that no statutory question is raised , and t his court cannot review the weight of evidence pertaining to “ whether a connection exists between the birth of the appella nt’s son and uterine prolapse. ” Gov’t Br. 11

. The government states that theVERDELL JACKSON v. SHINSEKI 4 benefit of the doubt rule is “ inapplicable ” because the Board found that there was a preponderance of evidence finding no service connection. Id. 12.

In considering these arguments, w e are mindful that the a ppellant represents herself pro se, requiring “ a sympathetic reading to the veteran’s filings by ‘determi ning all potential claims raised by the evidence, applying all relevant laws and regulations.’” S zemraj v. Principi

, 357 F.3d 1370, 1373 (Fed. Cir. 200 4) (quoting Roberson v. Principi , 251 F.3d 1378 (Fed. Cir. 2001)).

I.

T he appellant’s challenge to the VA’s application of the “benefit of the doubt” rule is not within the proper scope of our review u nder the facts presented

. Although the appellant submitted lay testimony and excerpts of medical treatises in support of service connection, three medical examiners reviewed the appellant’s case and concluded that her uterine prolapse was not incurred in service. T he Board found the opinio ns of the examiners

more probative , and concluded that “the preponderance of the evidence is against the Veteran’s claim.” Bd. Op. at
11. Because the Board found preponderance against the appellant, w e cannot review that finding. See Fagan v. Shinseki

, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (benefit of the doubt rule has “no application where the Board d etermines that the preponderance of the evidence weighs against the veter an’s claim.” ).

T he appellant’s challenge to the denial of service co nnection is an other matter. W e disagree with the gover nment that the appellant has asked this court to re weigh evidence

. To the contrary, the appellant’s brief states that she is entitled to a presumption of service connect ion based on the undisputed fact that the appellant’s uterine prolapse was discovered within one year of sepa ration

. This argument raises a question within our purview. See Skoczen v. Shinseki , 564 F.3d 1319, 1322 (Fed. Cir. 2009) (“In cases where the material facts are not in dis pute and the adoption of a particular legal standard would dictateVERDELL JACKSON v. SHINSEKI 5 the outcome of a veteran’s claim, we treat the application of law to undisputed fact as a question of law.” ). The appellant’s argument is not facially implausible. See 38 U.S.C. §1112(a)( 1) (establishing presumption of service connection for “a chronic disease becoming manifest to a degree of 10 percent or more within one year from the date of separa tion”); 3. 3 07(a)(3) (same)).

II.

The statutes and regulations pertaining to disability “ser vice connection” c an be difficult to decipher. This court recently addressed the scheme at length in Walker v. Shinseki , 708 F.3d 1331 ( Fed. Cir. 2013).

In general, a veteran’s right to disability compens ation is established in title 38 of the U.S. Code

. The basic entitlement states that the United States will pay vete rans for any disability resulting from person al injury “contracted” or “aggravated” while in the active military, so long as the disability is not a result of the veteran’s willful miscond uct. 38 U.S.C. §1110. The Secretary of Veterans Affairs has promulgated regulations

— which the appellant does not challenge

— stating that the veteran must establish the entitlement in one of two ways: (1) by “affirmatively showing inception or aggravation during service” ; or (2) “ through the application of statutory presumptions .” 38 C.F.R. §3.303(a). The appellant’s arguments pertain to the second approach. Jackson Br.

1– 2.
The statutory presumptions of service connection are set forth in 38 U.S. C. §111 2, which provides for a pr esumption for “ chronic disease[s] becoming manifest to a degree of 10 percent or more within one year from the date of separation from such service.” 2 T he Secretary implements t his presumption through a triumvirate of regulations, namely 38 C.F.R. §§3 .303(b), 3.307(a)(3),

2 Section 1112 presumptions are expressly made rebuttable under 38 C.F.R. §1113. See §1112.VERDELL JACKSON v. SHINSEKI 6 3.309(a). See Walker

, 708 F.3d at 1338 (finding a “clear linkage” between §3.30 7(a) and §3.309(a) to §3.303).

Section 3.303(b) states that a presumption of service connection exists for post

- service manifestations of

“ chronic disease ” if the chronic ity of the disease was “shown as such in service (or within the presumptive period under §3.307) ,” or, if there is “continuity of sym ptomatology” after service. T he presumptive peri od for diagnosis of a chronic disease under § 3.307 is 1 year from separation from service . The last component is the defin ition of “chronic disease,” which is found in § 3.309(a)

. Section 3.309 enumerates several specific diseases that

are eligible “chron ic diseases” under the s cheme.

Because the appellant states that she was diagnosed

“ within th e one year presumptive period,” we interpret the appellant’s claim to be that her hysterectomy, post

uterine prolapse, qualifies as a “chronic disease” under §1112 and §3.303(b). 3

III.

The term “chronic disease” is st atutorily defined in 38 U.S.C . §1101 , which identifies several chronic diseases by name and permits the addition of “ such other chronic diseases as the Secretary may add . . . .” T he statute identifies such diseases as arthritis, diabetes mellitus

, and psycho sis , among others. The Secretary ’s list is found in regulation 38 C.F.R. §3.309 (a) , and is substan tially similar.

Hysterectomy and uterine prolapse are not listed in either §11 01 or regulation §3.309. The appellant must argue that although these provisions provide lists , the lists are not exhaustive and other diseases may qualify as “chronic.” W e addressed that very issue in Walker

.

3 Although the government has failed to address this issue, we see no evidence or argument that the appe llant waived it, or is o therwise precluded from raising it

now.VERDELL JACKSON v. SHINSEKI 7 In Walker

, the veteran argued that bilateral hearing loss, although not enumerated in §1101 or §3.309, was medically “chronic” and therefore qualified as a “ chronic disease .” 708 F.3d at 1336. The Secretary countered that only diseases expressly listed in §3.309(a) are eligible for presumption s under §3.303(b). Id. at 1337. After revie wing the statutory scheme at length, we concluded that the Secretary’ s interpretation was not invalid. Id. at 1338. We held that

Even though §3.303(b) does not contain a specific

cross reference to §3.309(a), we think a harmon ious reading of §§3.303(b), 3.307(a) and 3.309(a) supports an implicit cross refere nce to §3.309(a) in § 3.303(b).

For the reasons explained above, we conclude that properly interpreted, and consistent with the Se cretary’s interpretation, §3.303(b) is constrained by §3.309(a), regardless of the point in time when a veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic dis eases listed in §3.309(a).

708 F.3d at 1338.

The appellant’s argument here is precisely the one made and rejected in Walker. The one year presumptive period set forth in §3.307(a) does not apply to the appe llant’s hysterectomy or uterine prolapse because neither of those maladies is a “chronic disease ” listed in §3

. 309

. Thus i n order to prevail, the uterine prolapse needed to be “contracted” or “aggravated” while in the active military

. 38 U.S.C. §1110. The Board’s finding to the contrary is bey ond our jurisdiction to review.

We have considered the appellant’s remaining arg ume nts and find them unpersuasive.

AFFIRMED