NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________ 

TERRY T. BRADY,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-2206

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-6918, Judge Joseph L. Toth. 

______________________ 

Decided: May 13, 2022

______________________ 

TERRY T. BRADY, Boise, ID, pro se. 

SEAN KELLY GRIFFIN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by 

BRIAN M. BOYNTON, ERIC P. BRUSKIN, MARTIN F. HOCKEY,

JR. 

 ______________________ 

Before NEWMAN, REYNA, and WALLACH, Circuit Judges.

Case: 21-2206 Document: 16 Page: 1 Filed: 05/13/2022
2 BRADY v. MCDONOUGH

NEWMAN, Circuit Judge. 

Appellant Terry T. Brady served with the United 

States Marine Corps from 1953 to 1956. The Board of Veterans’ Appeals (“BVA” or “Board”) denied his claim of service connection for certain neuropathies that became

manifest in 2006. The issue relates to Mr. Brady’s possible 

exposure to radiation and whether there is a presumption 

of service-connection on the facts hereof. The BVA found 

that service connection was not established, and the Court 

of Appeals for Veterans Claims (“CAVC”) affirmed.1 

The record on appeal contains differing medical opinions concerning whether Mr. Brady’s neuropathies relate

to his military service. These medical opinions, and their 

balance and weight, are factual in nature, and entail no 

questions of law or relevant presumptions of service-connection. This court lacks authority to review such factual 

determinations unless constitutional questions are involved. We conclude that the appeal must be dismissed, for 

the issue is entirely factual, and not within our appellate 

jurisdiction.

DISCUSSION

While serving with the Marines, Mr. Brady’s duty station at Lake Meade Base was 65 miles from a test site at 

which fourteen atmospheric nuclear tests were conducted 

during his service. The government’s evidence was from

the U.S. Department of Energy National Nuclear Security 

Administration and estimated that Mr. Brady was exposed 

1 Brady v. McDonough, No. 19-6918, 2021 WL 

2587736 (Vet. App. June 24, 2021) (“CAVC Decision.”); In 

re Terry Brady, Docket No. 18-28 409A (Bd. Vet. App. July 

16, 2019) (“Board Decision”). 

Case: 21-2206 Document: 16 Page: 2 Filed: 05/13/2022
BRADY v. MCDONOUGH 3

to 0.016 rems of ionizing radiation2 at a distance of 65 

miles. The Board noted that there were “no other measurements or dose estimates of record.” Board Decision at 

3. 

At his discharge in 1956, Mr. Brady received a physical 

examination that noted certain cardiac abnormalities, but 

no neurological issue. In 2006, Mr. Brady reported to his 

physician that he was experiencing tremors in his hands. 

In 2016, Mr. Brady was diagnosed with peripheral neuropathy in his lower extremities. He filed a claim for service 

connection, stating that he has experienced muscular and 

neurological issues since 1957. Mr. Brady obtained an 

opinion from a VA doctor stating that Mr. Brady had provided information of “at least two cases where the VA determined that ionizing radiation is associated with 

peripheral neuropathies.” CAVC Decision at *2 (citation 

omitted). Accordingly, the doctor stated that Mr. Brady’s 

neuropathy was “related to his exposure to ionizing radiation. . .” Id. Mr. Brady also submitted the testimony of a 

private chiropractor linking his neuropathy to radiation exposure. Id. 

2 The rem is a measure of radiation dose. “The rem 

is a useful unit because a rem of any radiation type should 

produce the same biological effect as a rem of any other 

type of radiation.” Prescott v. United States, 858 F. Supp. 

1461, 1468 n.4 (D. Nev. 1994). “In context, the average 

American receives .300 rem of radiation yearly from natural sources like radon gas. Hence, a normal lifetime dose 

of natural radiation would be 19.5 rem.” Caputo v. Bos. 

Edison Co., 924 F.2d 11, 12 n.1 (1st Cir. 1991). An “average 

American by age 64 will receive about 6.5 rem of radiation 

from x-rays.” Id. (quoting Johnston v. United States, 597 

F. Supp. 374, 390 (D. Kan. 1984)). 

Case: 21-2206 Document: 16 Page: 3 Filed: 05/13/2022
4 BRADY v. MCDONOUGH

The VA provided two medical opinions that stated that 

the dose of radiation to which Mr. Brady had been exposed 

was too low to have resulted in neuropathy. 

In July 2019, the Board reviewed the evidence and 

found that there was no causal connection between Mr. 

Brady’s exposure to radiation in service and his present 

neuropathy. Board Decision at 7 (Brady’s “records include 

no complaints of neurological problems of the extremities, 

and clinical evaluation of the upper and lower extremities 

and the feet were ‘normal’ upon separation from service.”). 

The Board also determined that no presumption of service 

connection arose, because Mr. Brady’s condition was not 

documented until 50 years after his service. Id. at 6; see 38 

C.F.R. § 3.303(b) (presumption of service connection arises 

only when condition is “noted” within one year of separation after service).3 The Board compared Mr. Brady’s testimony that he had experienced neuropathy issues since 

1957, with his documented statement to his physician in

2006. The Board found no service connection. 

The CAVC affirmed the Board’s finding of no service 

connection. The court referred to the Department of Energy’s estimate of Mr. Brady’s radiation exposure, and determined that the Board did not err in giving no weight to 

3 A presumption of service connection to ionizing radiation exposure is provided for some ailments, but not the 

neuropathy of which Mr. Brady complains. The presumption of service connection exists for certain diseases (mostly 

cancers) caused by ionizing radiation. 38 U.S.C. § 1112; see

Ramsey v. Gober, 120 F.3d 1239, 1243–44 (Fed. Cir. 1997) 

(discussing statute). The VA has expanded the legislated 

presumption of service connection by regulation to additional diseases (again, mostly cancers). 38 C.F.R. § 3.311. 

There is no provision for a presumption of service connection for peripheral neuropathy. 

Case: 21-2206 Document: 16 Page: 4 Filed: 05/13/2022
BRADY v. MCDONOUGH 5

Mr. Brady’s medical opinions, for those opinions did not 

mention the very low dose of radiation to which Mr. Brady 

could have been exposed. 

The CAVC also found no clear error in the Board’s 

treatment of Mr. Brady’s testimony that his symptoms

were present at his separation from service. The court 

stated that 10 years had passed between 1995, when the 

nuclear testing at issue was declassified, and Mr. Brady’s 

first report to a physician of neuropathy in 2006. See CAVC 

Decision at *4 (“more than 20 years passed between when 

Mr. Brady said he could talk about his service and when he 

filed his claim.” (citation omitted)). Mr. Brady reported to 

his physician in 2006 that the tremor in his hands was 

“new.” Consequently, the court determined that the BVA 

did not clearly err in giving no weight to Mr. Brady’s contention that he refrained from reporting his tremor because 

his nuclear exposure had been classified.

“Unless presented with a constitutional challenge, we 

lack jurisdiction to review any ‘challenge to a factual determination’ or any ‘challenge to a law or regulation as applied 

to the facts of a particular case.’” Cameron v. McDonough, 

1 F.4th 992, 994 (Fed. Cir. 2021) (quoting 38 U.S.C. 

§ 7292(d)(2)). Mr. Brady argues that the evidence was not 

uniformly against service connection, citing the conflicting 

medical opinions. He also cites evidence that even low 

doses of radiation can cause radiation-linked disease. 

Brady Br. at 4–6. He states, and precedent supports, that 

the existence of doubt favors service connection in interpreting statutes and regulations. E.g., Brown v. Gardner, 

513 U.S. 115, 118 (1994) (“interpretive doubt is to be resolved in the veteran’s favor”). Mr. Brady states that, had 

the veterans’ authorities taken “due care” in processing his 

claim, they would have made a different factual finding regarding service connection. He argues that the BVA’s holding is “prejudicial error” and is subject to our appellate 

review. Brady Br. at 4–6. 

Case: 21-2206 Document: 16 Page: 5 Filed: 05/13/2022
6 BRADY v. MCDONOUGH

Mr. Brady’s claim rests on the factual question of 

whether the radiation exposure he experienced during 

1953–1956 was or could reasonably be causally related to 

the neuropathy he medically reported in 2006. The Board 

and the CAVC determined that the facts did not support a 

causal relationship between Mr. Brady’s radiation exposure and his neuropathy. We discern no error or misinterpretation of law. Our jurisdictional statute precludes our 

re-weighing the evidence and re-finding the facts. 38 

U.S.C. § 7292(d)(2). Mr. Brady’s appeal must be dismissed. 

DISMISSED

COSTS

No costs. 

Case: 21-2206 Document: 16 Page: 6 Filed: 05/13/2022