NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

VERDELL JACKSON,

Claimant-Appellant,

v.

 Eric 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. Holdaway.

______________________ 

Decided: June 10, 2013

______________________ 

VERDELL JACKSON, of Crosby, Texas, pro se. 

MICHELLE R. MILBERG, Trial Attorney, United States 

Department of Justice, of Washington, DC, for defendantappellee. With him on the brief were STUART F. DELERY, 

Principal Deputy Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and SCOTT D. AUSTIN, Assistant 

Director. 

______________________ 
2 VERDELL JACKSON v. SHINSEKI

Before NEWMAN, CLEVENGER, and WALLACH, Circuit 

Judges.

NEWMAN, 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 service connected, and

therefore not entitled, and the Veterans Court affirmed. 1 

We affirm the judgment.

BACKGROUND

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. Less than one year later, she was diagnosed by 

a private physician with a “severely retroverted uterus 

and mild uterine prolapse.” Jackson Encl. #3 at 2. The 

appellant received treatment from 1999 to 2001, and, in 

May 2001, underwent a total hysterectomy. 

In July 2001, the appellant applied to the Department 

of Veterans Affairs (“VA”) for service connected disability

in view of her hysterectomy, post-uterine prolapse. The 

appellant stated that her uterine prolapse was attributable to complications from the childbirth in 1989, citing 

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

The Board denied the appellant’s claim, relying on 

three medical opinions stating that although uterine 

prolapse can be caused by childbirth, the appellant’s 

uterine prolapse was “less than likely” incurred during 

active duty given her non-diagnosis for 10 years post 

childbirth. Bd. Op. 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 diagnosis suggested no service connection. Id. The Board 

adopted the opinions of the examiners, and the Veterans 

Court concluded that the Board’s findings were not clearly 

erroneous. Vet. Ct. Op. at 8.

DISCUSSION

Our review of decisions of the Veterans Court is circumscribed by statute. We review decisions of the court

only as to the “validity” or “interpretation” of any statute 

or regulation, 38 U.S.C. §7292(a), and absent a constitutional 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 “benefit 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 appellant’s 

claim. Jackson Br. 2.

The government contends that no statutory question 

is raised, and this court cannot review the weight of 

evidence pertaining to “whether a connection exists 

between the birth of the appellant’s son and uterine 

prolapse.” Gov’t Br. 11. The government states that the
4 VERDELL JACKSON v. SHINSEKI

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, we are mindful that 

the appellant represents herself pro se, requiring “a 

sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying 

all relevant laws and regulations.’” Szemraj v. Principi, 

357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson v. 

Principi, 251 F.3d 1378 (Fed. Cir. 2001)).

I.

The appellant’s challenge to the VA’s application of 

the “benefit of the doubt” rule is not within the proper 

scope of our review under 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. The Board found the opinions 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, we 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 determines that the preponderance of the evidence weighs 

against the veteran’s claim.”).

The appellant’s challenge to the denial of service connection is another matter. We disagree with the government that the appellant has asked this court to reweigh

evidence. To the contrary, the appellant’s brief states

that she is entitled to a presumption of service connection 

based on the undisputed fact that the appellant’s uterine 

prolapse was discovered within one year of separation. 

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 dispute and 

the adoption of a particular legal standard would dictate 
 VERDELL 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 separation”); 3.307(a)(3) (same)).

II.

The statutes and regulations pertaining to disability 

“service connection” can 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 compensation is established in title 38 of the U.S. Code. The basic 

entitlement states that the United States will pay veterans for any disability resulting from personal injury 

“contracted” or “aggravated” while in the active military, 

so long as the disability is not a result of the veteran’s 

willful misconduct. 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. §1112, which provides for a presumption 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 The Secretary 

implements this 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.

 
6 VERDELL JACKSON v. SHINSEKI

3.309(a). See Walker, 708 F.3d at 1338 (finding a “clear 

linkage” between §3.307(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 chronicity of the disease was 

“shown as such in service (or within the presumptive 

period under §3.307),” or, if there is “continuity of symptomatology” after service. The presumptive period for 

diagnosis of a chronic disease under §3.307 is 1 year from 

separation from service. The last component is the definition of “chronic disease,” which is found in §3.309(a). 

Section 3.309 enumerates several specific diseases that 

are eligible “chronic diseases” under the scheme. 

Because the appellant states that she was diagnosed 

“within the one year presumptive period,” we interpret 

the appellant’s claim to be that her hysterectomy, postuterine prolapse, qualifies as a “chronic disease” under 

§1112 and §3.303(b).3

III.

The term “chronic disease” is statutorily 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 . . . .” The statute 

identifies such diseases as arthritis, diabetes mellitus, 

and psychosis, among others. The Secretary’s list is found 

in regulation 38 C.F.R. §3.309(a), and is substantially 

similar.

Hysterectomy and uterine prolapse are not listed in 

either §1101 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.” We addressed that very issue in Walker. 

3 Although the government has failed to address 

this issue, we see no evidence or argument that the appellant waived it, or is otherwise 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 

presumptions under §3.303(b). Id. at 1337. After reviewing 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 harmonious reading of §§3.303(b), 3.307(a) and 3.309(a) 

supports an implicit cross reference to §3.309(a) in 

§ 3.303(b).

For the reasons explained above, we conclude that 

properly interpreted, and consistent with the Secretary’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 diseases 

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 appellant’s hysterectomy or uterine prolapse because neither of 

those maladies is a “chronic disease” listed in §3.309. 

Thus in 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 

beyond our jurisdiction to review.

We have considered the appellant’s remaining arguments and find them unpersuasive.

AFFIRMED