NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JONATHAN WYLIE BURGHART, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7142 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in Case No. 10-1180, Judge Ronald M. 

Holdaway. 

____________________________ 

Decided: December 12, 2011 

____________________________ 

JONATHAN WYLIE BURGHART, of Caldale, California, 

pro se. 

STACEY K. GRIGSBY, 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-
BURGHART v. DVA 2

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

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

were DAVID BARRANS, Deputy Assistant General Counsel, 

and BRIAN D. GRIFFIN, Attorney, United States Department of Veterans Affairs, of Washington, DC. 

__________________________ 

Before RADER, Chief Judge, and LOURIE and REYNA, 

Circuit Judges. 

PER CURIAM. 

Jonathan Wylie Burghart (“Burghart”) appeals from 

the decision of the United States Court of Appeals for 

Veterans Claims (the “Veterans Court”), which affirmed 

the decision of the Board of Veterans’ Appeals (the 

“Board”) to deny entitlement to service connection for 

psychiatric disability. We dismiss Burghart’s appeal for 

lack of jurisdiction. 

BACKGROUND

Burghart served on active duty in the United States 

Navy from December 1980 to June 1982. In August 1997, 

he filed a claim for service connection for a nervous disorder with mental disorientation caused by trauma. In 

December 1997, the Department of Veterans Affairs 

(“VA”) Regional Office (“RO”) denied his claim. In December 2001, Burghart requested to reopen his claim for 

“post traumatic stress disorder previously claimed as 

nervous disorder,” and in January 2002 he submitted a 

statement indicating that he wished to “claim service 

connection for head trauma [and] seizures, previously 

claimed as mental disorder.” Burghart v. Shinseki, No. 

10-1180, slip op. at 1 (Vet. App. Apr. 29, 2011) (“Veterans 

Ct. Op.”). In April 2002, the RO declined to reopen the 
3 BURGHART v. DVA

claim. Burghart appealed to the Board, which remanded 

the claim for additional development. 

The VA scheduled a medical examination for 

Burghart in August 2008; however, the notice for the 

examination was sent to Burghart’s pastor and Social 

Security Administration payee rather than to Burghart 

directly.1 Burghart failed to appear for the examination. 

In October 2008, the VA issued a Supplemental Statement of the Case (“SSOC”) informing Burghart that his 

claim remained denied on account of a lack of requisite 

medical evidence. The SSOC specifically noted that 

Burghart “failed to report for a VA examination scheduled 

at the VA Medical Center Sepulveda CA on August 1, 

2008,” and that “[e]vidence expected from this examination which might have been material to the outcome of 

this claim could not be considered.” Resp’t App. 41. In 

response to the SSOC, Burghart stated that he had no 

other evidence or information to submit. 

Burghart again appealed to the Board. In an opinion 

dated March 10, 2009, the Board found that Burghart did 

not suffer a head injury during active duty service, that 

he did not manifest a psychiatric disability during service, 

and that the record lacked persuasive medical evidence 

linking any current psychiatric disorder, including post 

traumatic stress disorder, with his service. 

Burghart appealed from the Board’s decision to the 

Veterans Court, arguing for the first time that he failed to 

appear for the August 2008 medical examination because 

he was never notified of the examination. The government conceded before the Veterans Court that notice of 

 1 The Veterans Court’s opinion erroneously states 

that the examination was scheduled in July 2008. See

Veterans Ct. Op., at 2; Resp’t App. 11. 
BURGHART v. DVA 4

the examination was sent to Burghart’s pastor and Social 

Security Administration payee rather than to Burghart 

directly. Nonetheless, the Veterans Court held that this 

error did not prejudice Burghart because he was informed 

in the SSOC of the examination and of the consequences 

of his failure to report for it, and yet, in response to the 

SSOC, he stated that he had no other evidence or information to submit. The Veterans Court thus affirmed the 

decision of the Board. Burghart 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.” 

In his informal appellate brief, Burghart notes that he 

missed his August 2008 medical examination appointment and asserts that he tried to reschedule this appointment. As we explained above, however, the 

Veterans Court concluded that Burghart was not prejudiced by the VA’s failure to send the examination notice to 

his home address. See Veterans Ct. Op., at 3 (referring to 

the rule of prejudicial error under 38 U.S.C. § 7261(b)(2)). 

We lack jurisdiction to review this factual determination. 

See Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 

2004) (“[W]e would surpass our jurisdiction if we were to 
5 BURGHART v. DVA

apply the harmless error rule as codified in section 

7261(b)(2) to the facts of this case”); see also Newhouse v. 

Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (observing that whether actual prejudice resulted from a failure 

to provide proper notice under the Veterans Claims 

Assistance Act is a factual determination over which we 

lack appellate jurisdiction). 

To the extent that Burghart also asserts that the 

Board erred by finding no persuasive medical evidence 

connecting his psychiatric disability with his military 

service, that too is a factual determination that we lack 

jurisdiction to review. See Johnson v. Derwinski, 949 

F.2d 394, 395 (Fed. Cir. 1991) (holding that a denial of 

entitlement to service connection is a factual determination that we may not review). 

We have considered all of Burghart’s arguments. For 

the foregoing reasons, we must dismiss the appeal for 

lack of jurisdiction. 

DISMISSED 

COSTS

 No costs.