NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MICHAEL W. HARLSTON, SR., 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7167 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in Case No. 09-4379, Judge Ronald M. 

Holdaway. 

____________________________ 

Decided: January 12, 2012 

____________________________ 

MICHAEL W. HARLSTON, SR., of St. Louis, Missouri, pro 

se. 

ELLEN M. LYNCH, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

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

With her on the brief were TONY WEST, Assistant Attor-
HARLSTON v. DVA 2

ney General, JEANNE E. DAVIDSON, Director, and BRIAN 

M. SIMKIN, Assistant Director. Of counsel on the brief 

were DAVID J. BARRANS, Deputy Assistant General Counsel, and JONATHAN TAYLOR, Attorney, United States 

Department of Veteran Affairs, of Washington, DC. 

__________________________ 

Before RADER, Chief Judge, and LOURIE and LINN, Circuit 

Judges. 

PER CURIAM. 

Michael W. Harlston, Sr. (“Harlston”) appeals from a 

decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”). The Veterans Court 

affirmed the decision of the Board of Veterans’ Appeals 

(“the Board”) denying entitlement to service connection 

for a back condition. Harlston v. Shinseki, No. 09-4379, 

2011 WL 1534555 (Vet. App. Apr. 25, 2011). For the 

reasons indicated below, we dismiss for lack of jurisdiction. 

BACKGROUND

Harlston, who served on active duty in the U.S. Army 

from March 1971 to March 1973, filed a claim at the 

Department of Veterans Affairs (“VA”) in October 2003 

seeking disability benefits for a back condition and a 

bilateral knee disorder. Along with his claims, Harlston 

submitted a statement from another service member 

(Gaskins) who served with Harlston in the Army. Gaskins’ statement described the training exercises that he 

and Harlston underwent, including extended physical 

training, hand-to-hand combat, and extended marches 

carrying 40-pound backpacks. Gaskins also recalled a 

training incident in which Harlston fell from a steel cable 
3 HARLSTON v. DVA

suspended over a water-filled pit and landed awkwardly 

on his back, sustaining injuries. Harlston also alleged 

that he suffered back and knee injuries while lifting 

heavy caskets as an honor guard for military burials. 

Medical records indicate that Harlston was seen for a 

“low backache” in both April and August of 1971. 

The VA regional office (“RO”) denied Harlston’s claims 

in May 2004. Harlston appealed, and in August 2007, the 

Board remanded for the VA to provide a medical nexus 

opinion as to whether any diagnosed disability was related to Harlston’s military service. In support of his 

appeal, Harlston submitted to the Board a statement from 

a second individual (Lee) who indicated that he served 

with Harlston in July 1971 and remembered Harlston 

being on numerous sick calls for stomach, back, and knee 

problems. In June 2009, a VA medical examiner assessed 

Harlston’s physical condition and reviewed his service 

medical records and claims file. The examination revealed no evidence of any knee disorder, but the examiner 

diagnosed Harlston with a lumbar strain. In view of the 

examination and Harlston’s medical records, however, the 

examiner concluded that the lumbar strain was “not 

related to the low backache for which the Veteran was 

seen in August of 1971 while in the military nor for which 

he was seen in April of 1971 while in the military.” 

Harlston, 2011 WL 1534555 at *1. The Board thus denied 

Harlston’s claims in September 2009, holding that he was 

not entitled to service connection for his back strain or the 

asserted knee disorder. 

Harlston then appealed the Board’s decision on his 

lumbar strain to the Veterans Court.1 On appeal, Harl-

 1 Harlston’s appeal to the Veterans Court focused 

solely on the Board’s denial of service connection for his 
HARLSTON v. DVA 4

ston argued that the June 2009 examination was inadequate because the examiner failed to consider the “buddy 

statements” submitted by Gaskins and Lee on Harlston’s 

behalf. The Veterans Court disagreed and noted that the 

examiner reviewed and considered Harlston’s claims file, 

which included the buddy statements at the time of the 

June 2009 examination. Harlston, 2011 WL 1534555 at 

*2. The Veterans Court held that the examination was 

sufficient for rating purposes because the examiner 

reviewed Harlston’s medical history, performed a physical 

examination, and explained his reasons for concluding 

that Harlston’s current back condition was unrelated to 

his prior military service. Id. Because nothing in the 

record contradicted the presumption that the examiner 

considered all relevant evidence and competently performed his duties, the Veterans Court affirmed the 

Board’s decision denying entitlement to service connection 

for Harlston’s lumbar strain condition. Id. Harlston 

subsequently appealed to this court. 

DISCUSSION

Our jurisdiction to review decisions of the Veterans 

Court is circumscribed by statute. Under 38 U.S.C. 

§ 7292(a), a party may obtain review “with respect to the 

validity of a decision of the 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.” 

Under § 7292(d)(2), however, 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.” 

 

lumbar strain and abandoned the parallel claim for a 

knee condition. Harlston, 2011 WL 1534555 at *1. 
5 HARLSTON v. DVA

In his informal brief, Harlston argues that the “VA 

did not give the veteran benefit of doubt,” apparently 

referring to the benefit-of-the-doubt doctrine enunciated 

in 38 U.S.C. §5107(b). Section 5107(b) requires that 

“[w]hen there is an approximate balance of positive and 

negative evidence regarding any issue material to the 

determination of a matter, the Secretary shall give the 

benefit of the doubt to the claimant.” In finding that “the 

appellant does not point to anything in the record” to 

overcome the Board’s determination denying service 

connection for his lumbar strain, Harlston, 2011 WL 

1534555 at *2, neither the Board nor the Veterans Court 

discussed § 5107(b), which, by its terms, applies only 

when the evidence for and against the veteran’s claim is 

in “approximate balance.” By arguing that the Board 

should have applied § 5107(b), Harlston argues by implication that the evidence of record was in equipoise, contrary to the Board’s explicit findings. This argument thus 

boils down to disagreement with the Board’s factual 

determinations and its application of law to those facts, 

which lie beyond the scope of our jurisdiction under 

§ 7292(d)(2). See Ferguson v. Principi, 273 F.3d 1072, 

1075-76 (Fed. Cir. 2001). We are therefore precluded 

from considering these arguments. 

Harlston’s informal response brief consists of further 

fact-based arguments that we similarly lack jurisdiction 

to consider. Harlston also provides a lengthy recitation of 

the procedures applicable for filing an appeal before the 

Board paired with naked allegations that the VA committed unspecified “legal and procedural errors.” We find 

these arguments too vague and conclusory to merit consideration. 

For the foregoing reasons, we must dismiss Harlston’s 

appeal for lack of jurisdiction. 
HARLSTON v. DVA 6

DISMISSED 

COSTS

 No costs.