NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

RUBY MCFADDEN, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7031 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in Case No. 07-3529, Judge Lawrence B. 

Hagel. 

___________________________ 

Decided: January 11, 2011 

___________________________ 

PATRICIA NATION, Nation Law Firm PLLC, of Little 

Rock, Arkansas, for claimant-appellant. 

JAMES SWEET, 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 Attor-
MCFADDEN v. DVA 2

ney General, JEANNE E. DAVIDSON, Director, and 

KENNETH M. DINTZER, Assistant Director. Of counsel on 

the brief were MICHAEL J. TIMINSKI, Deputy Assistant 

General Counsel, and TRACEY P. WARREN, Staff Attorney, 

United States Department of Veterans Affairs, of Washington, DC. 

__________________________ 

Before NEWMAN, DYK, Circuit Judges, and WHYTE, District 

Judge.*

NEWMAN, Circuit Judge. 

Ruby McFadden appeals the decision of the Court of 

Appeals for Veterans Claims affirming the Board of 

Veterans’ Appeals denial of certain benefits relating to 

her deceased husband’s gallbladder cancer.1 Because by 

statute we cannot review fact-related challenges raised by 

Mrs. McFadden, and because the Court of Veterans 

Claims (Veterans Court) applied correct legal principles, 

we affirm the decision of the Court of Veterans Claims. 

BACKGROUND

Mrs. McFadden’s late husband, William McFadden, 

served this country in the Army from December 1950 to 

October 1952, during the Korean Conflict era. Mr. 

McFadden was stationed at Fort Hood, Texas, and in 

Germany during that time. In October 2002 Mr. McFadden was diagnosed with gallbladder cancer. On October 

22, 2003 Mr. McFadden applied through the Department 

of Veterans Affairs (“VA”) for service connection for 

 * Honorable Ronald M. Whyte, District Judge, 

United States District Court for the Northern District of 

California, sitting by designation. 

1 McFadden v. Shinseki, No. 07-3529, 2009 WL 

3157558 (Vet. App. Sept. 30, 2009). 
3 MCFADDEN v. DVA

gallbladder cancer, diabetes, emphysema, and hearing 

and vision loss.2 The VA could not obtain all of Mr. 

McFadden’s service medical records because the National 

Personnel Records Center (“NPRC”) in St. Louis, where 

most of Mr. McFadden’s records had been stored, reported 

that the records had been destroyed in a large fire at the 

facility in 1973. Mr. McFadden also did not have a copy of 

his records and could not recall the possible dates that he 

might have received any treatment. The VA concluded 

that further efforts to obtain Mr. McFadden’s service 

medical records would be futile. 

The only service medical record available was a separation examination, which included a medical history 

form completed by Mr. McFadden. The examination 

revealed normal clinical evaluations, including a normal 

abdomen. In the form filled out by Mr. McFadden, he 

wrote “good” to describe his present health and marked 

“yes” and “no” boxes concerning whether he had ever had 

certain conditions or symptoms. He checked “no” in the 

box asking whether he had ever had “stomach, liver or 

intestinal trouble.” 

During the processing of his claim before the VA Regional Office, Mr. McFadden filed a statement explaining 

that he had stomach cramps while in the service. He said 

that the water at Fort Hood made him sick, so he drank 

milk instead of water until a doctor told him he should 

start drinking water. According to his statement, he 

started drinking water again and his stomach continued 

to cramp. Mr. McFadden reported that when he came 

home from the Army he went to the VA and was diagnosed with “German flu.” He further reported that he 

 2 Mrs. McFadden’s subsequent appeals relate only 

to gallbladder cancer. 
MCFADDEN v. DVA 4

continued to have stomach pain through the years, and 

that he believed that iron in the water during his military 

service caused his gallbladder cancer. Mr. McFadden 

could not recall whether he had received treatment for 

stomach pain while in service, but was treated for a 

“nervous” stomach in the years following his service. Mr. 

McFadden also submitted a statement from his brother 

indicating that Mr. McFadden was sick when he returned 

home from the Army and had experienced stomach 

cramps. Mr. McFadden authorized the VA to obtain 

medical records from doctors who had treated him for 

stomach cramps, nervous stomach, and nausea after he 

returned home from service. The VA attempted to do so 

but was unsuccessful. The VA concluded that the doctors 

were deceased and the records unavailable. 

The VA denied Mr. McFadden’s claims for benefits in 

August 2004. He appealed to the Board of Veterans’ 

Appeals (Board), and submitted additional statements 

from friends who recalled Mr. McFadden reporting stomach pains ever since he had been in the military. He also 

submitted information from the American Cancer Society 

website about gallbladder cancer, and a letter from a 

doctor who had recently examined him. The doctor, Dr. 

Morris, concluded that “it is a possibility that Mr. McFadden[’s] medical condition may have been related to his 

military services,” relying in part on medical history 

provided by Mr. McFadden. Mrs. McFadden also testified 

before the Board that Mr. McFadden wrote home during 

service that he was having trouble with and seeking 

treatment for stomach pains. She stated that Mr. 

McFadden continuously sought VA treatment for stomach 

pains from the time he returned home until he was diagnosed with gallbladder cancer in 2002 and began chemotherapy. 
5 MCFADDEN v. DVA

Mr. McFadden died of gallbladder cancer on July 9, 

2005 while his appeal was pending. Mrs. McFadden then 

filed an application for dependency and indemnity compensation benefits for the cause of her husband’s death 

and asserted that she was entitled to accrued benefits 

based on Mr. McFadden’s pending appeal for service 

connection. The Regional Office denied Mrs. McFadden’s 

claims. 

Mrs. McFadden appealed to the Board. The Board 

denied her claims on August 3, 2007. The Board found 

that the available service medical records did not show 

any diagnosis of gallbladder cancer. The Board also found 

that there was no competent medical evidence linking Mr. 

McFadden’s gallbladder cancer to military service. The 

Board determined that the “VA made all efforts to notify 

and to assist the appellant with regard to the evidence 

obtained, the evidence needed, the responsibilities of the 

parties in obtaining the evidence, and the general notice 

of the need for any evidence in the appellant’s possession.” Board Decision at 4. The Board stated that in light 

of the destruction of records in the NPRC fire, the Board 

had a heightened obligation to explain its findings and 

conclusions and to consider carefully the benefit-of-thedoubt rule, citing O’Hare v. Derwinski, 1 Vet. App. 365, 

367 (1991), and Pruitt v. Derwinski, 2 Vet. App. 83, 85 

(1992). The Board concluded, however, that case law does 

not lower the legal standard for proving a claim for service connection. “It merely increases the Board’s obligation to evaluate and discuss in its decision all of the 

evidence that may be favorable to the veteran.” Board 

Decision at 6. 

The Board went on to evaluate the evidence, including 

the separation medical records, clinical documentation of 

the gallbladder cancer, the American Cancer Society 
MCFADDEN v. DVA 6

information, the statements of family and friends regarding Mr. McFadden’s reports of stomach pain, and Dr. 

Morris’ opinion that the cancer was possibly related to 

Mr. McFadden’s military service. The Board concluded 

that “[t]he initial manifestations of these disorders, 40 or 

more years following service separation, are too remote in 

time from service to support the claim that these conditions are related to service absent objective evidence to 

the contrary.” Id. at 8–9. Regarding Dr. Morris’ opinion, 

the Board stated that it was not bound to accept medical 

opinions based solely on medical history as provided by 

the veteran. The Board also stated that “where a physician is unable to provide a definite causal connection, as 

here, the opinion on that issue constitutes ‘what may be 

characterized as “non-evidence.”’” Id. (quoting Perman v. 

Brown, 5 Vet. App. 237 (1993)). In denying service connection for accrued benefits and for the cause of death, 

the Board stated that it considered the benefit-of-thedoubt rule but concluded it could not apply since the 

preponderance of the evidence was against the veteran’s 

claim. 

Mrs. McFadden appealed to the Veterans Court. The 

Veterans Court reviewed the factual findings of the Board 

in detail and found that they were not clearly erroneous. 

The court disagreed with Mrs. McFadden’s argument that 

the Board failed to take into account all of the favorable 

evidence. The court found that the Board did not reject 

Dr. Morris’ medical opinion solely because the opinion 

was based on facts supplied by the veteran, since the 

Board also explained that the opinion was too speculative. 

 The court discussed the impropriety of suggesting that 

Dr. Morris’ opinion was “non-evidence,” but concluded 

that the error was harmless because the opinion was 

insufficient to establish service connection. The Veterans 

Court concluded that 
7 MCFADDEN v. DVA

the Board’s analysis survives, but barely. The 

Board appears to require that a medical opinion 

be unequivocal to be competent. See R. at 9. Evidence is only incompetent, however if it cannot be 

considered by the trier of fact at all; that is, 

through some legal prohibition. As long as a person is qualified to provide an opinion, that opinion 

is competent, though the trier of fact may believe 

that the opinion’s probative value is minimal. 

Further, the Board misstates the law when it 

states that it need not consider a medical opinion 

based solely on history given by the veteran. This 

fact may be considered when determining the probative value of a doctor’s opinion, but the opinion 

cannot be wholly discarded solely for this reason. 

See Kowalski [v. Nicholson, 19 Vet. App. 171, 179 

(2005)]. Finally the Board refers to Dr. [Morris’] 

statement as having “no probative value” because 

it alone is “insufficient to establish service connection.” R. at 9. This is a misstatement of the law, 

as any competent opinion must be considered, 

along with other evidence, when determining if 

service connection is warranted; such evidence 

need not establish service connection by virtue of 

its own weight. 

McFadden, No. 07-3529, slip op. at 7 n.4. 

The Veterans Court also evaluated Mrs. McFadden’s 

argument that the destruction of the service medical 

records in the fire required the VA to decide the claims in 

her favor. The court explained that absent evidence of 

bad faith or negligence, an adverse presumption of service 

connection is not warranted, citing Cromer v. Nicholson, 

455 F.3d 1346, 1350–51 (Fed. Cir. 2006). The court also 

concluded that there is no heightened benefit of the doubt 
MCFADDEN v. DVA 8

where a claimant’s service medical records have been 

destroyed, but in such circumstances the Board has a 

heightened obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the 

appellant. The Veterans Court affirmed the decision of 

the Board denying service connection for accrued benefits 

and for the cause of Mr. McFadden’s death. Mrs. McFadden appeals. 

DISCUSSION

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. Under 38 U.S.C. §7292(d), 

this court is to review the law applied by the Veterans 

Court and hold unlawful an incorrect “regulation or any 

interpretation thereof.” However, the court 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,” except to the extent an appeal presents 

a constitutional issue. Id. §7292(d)(2). 

Several of the arguments made by Mrs. McFadden on 

appeal seek review of factual matters or application of law 

to the facts of this case. For example, Mrs. McFadden 

argues that the Board failed to provide an adequate 

statement of the reasons or bases for its determinations, 

as required by 38 U.S.C. §7104(d)(1). The Veterans Court 

reviewed the Board’s decision, and concluded that it met 

the standard of §7104(d)(1). This required the Veterans 

Court to apply the law of §7104(d)(1) to the essentially 

factual question of how the Board explained its decision. 

Under §7292, this court cannot review this question again 

on appeal. See Cook v. Principi, 353 F.3d 937, 941 (Fed. 

Cir. 2003) (holding that §7292 precludes review of application of §7104(d)(1) to the fact of Board’s failure to 

discuss certain evidence in its decision). Likewise, the 
9 MCFADDEN v. DVA

issue of whether there is sufficient evidence to establish 

service connection is an issue of fact. Waltzer v. Nicholson, 447 F.3d 1378, 1380 (Fed. Cir. 2006). Because §7292 

precludes our review of these issues, we will review the 

arguments presented by Mrs. McFadden only to the 

extent they present legal issues relied upon by the Veterans Court. 

Mrs. McFadden argues that the Veterans Court committed legal error in rejecting Dr. Morris’ opinion as 

incompetent and having no probative value. The basis for 

this argument appears to be certain misstatements of the 

law in the Board’s decision. For example, the Board 

stated that it need not consider a medical opinion based 

solely on a history given by the veteran. However, the 

Veterans Court noted these inaccuracies and concluded 

that they did not affect the Board’s final conclusion as to 

service connection. See McFadden, No. 07-3529, slip op. 

at 6–7. The Veterans Court’s analysis does not reveal any 

misinterpretation of the law applicable to Dr. Morris’ 

opinion, and this court may not venture further to determine whether the Veterans Court’s proper legal statements were correctly applied to the facts of this case. 

The primary legal argument made by Mrs. McFadden 

is that due to the destruction of Mr. McFadden’s service 

medical records in the NPRC fire, the Board had a 

“heightened obligation to give the benefit-of-the-doubt to 

the claimant, especially where the BVA cite[s] no evidence 

or facts by which to impeach or contradict the claimant,” 

citing 38 U.S.C. §5107 and 38 C.F.R. §3.102. Reply Br. 

16. Mrs. McFadden argues that the benefit-of-the-doubt 

rule operates to shift the burden of persuasion in this case 

from the claimant to the VA. 
MCFADDEN v. DVA 10

This court has rejected the argument that destruction 

of records in the 1973 NPRC fire results in an adverse 

presumption against the government that lowers or shifts 

the burden of proof. See Cromer v. Nicholson, 455 F.3d 

1346, 1350–51 (Fed. Cir. 2006).3 The VA does have its 

usual duty to assist under 38 U.S.C. §5103A, as well as a 

heightened duty to explain its findings in cases involving 

lost records, Cromer, 455 F.3d at 1351 (citing O’Hare v. 

Derwinski, 1 Vet. App. 365, 367 (1991)). The Veterans 

Court found those duties satisfied here, and Mrs. McFadden presents no basis on which we may review those 

findings in this case. 

Mrs. McFadden also points out that the VA does not 

offer evidence contradictory to that offered by her, and 

thus argues that there is at least as much positive evidence as there is negative. “When 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.” 38 U.S.C. §5107(b). The determination of whether 

the evidence is in approximate balance in this case is 

beyond the statutory authority of this court given in 

§7292, but the court may reference the facts of this case in 

determining whether the Veterans Court applied the 

correct law. Here, the court is presented with the legal 

question of whether the failure to rebut positive evidence 

offered by the veteran requires application of the benefitof-the-doubt rule, even where the Board and Veterans 

Court determine that the evidence offered by the veteran 

 3 The government mistakenly states that Cromer

was decided en banc. While not an en banc decision, as an 

earlier panel decision Cromer is the law of this circuit 

unless overturned en banc. 
11 MCFADDEN v. DVA

does not show that it is more likely than not that the 

disability is service connected. 

The only evidence connecting Mr. McFadden’s gallbladder cancer to service was Dr. Morris’ opinion that “it 

is a possibility” that the gallbladder cancer “may have 

been” related to Mr. McFadden’s military service. This 

opinion assumed that Mr. McFadden’s stomach pains 

began in service and continued thereafter, which is in 

accordance with the lay evidence as to Mr. McFadden’s 

stomach pains and might have been further supported by 

the unavailable medical records. This court has held that 

a medical “examiner’s statement, which recites the inability to come to an opinion, provides neither positive nor 

negative support for service connection” for purposes of 

the benefit of the doubt rule. Fagan v. Shinseki, 573 F.3d 

1282, 1289 (Fed. Cir. 2009). Although all pertinent medical and lay evidence must be considered, id. at 1290 n.4 

(citing Hogan v. Peake, 544 F.3d 1295, 1298 (Fed. Cir. 

2008)), there is no justification for shifting the burden of 

proof or applying an adverse presumption when there is 

no medical evidence that a nexus between the disability 

and service is more than a possibility. Absent special 

circumstances justifying an adverse presumption or shift 

in the burden of proof, the benefit of the doubt statute, 38 

U.S.C. §5107(b), does not alter the minimum level of 

evidence needed to establish the requisite nexus. The 

Veterans Court’s decision reveals no misinterpretation of 

the statute in this case. Accordingly, we affirm the decision of the Veterans Court. 

No costs. 

AFFIRMED