United States Court of Appeals for the Federal Circuit 

05-7125 

ESTELLE WALTZER, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

Respondent-Appellee. 

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for 

claimant-appellant. 

Michael S. Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for respondentappellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; 

David M. Cohen, Director; and Donald E. Kinner, Assistant Director. Of counsel on the 

brief was Y. Ken Lee, Attorney, United States Department of Veterans Affairs, of 

Washington, DC. 

Appealed from: United States Court of Appeals for Veterans Claims 

Chief Judge William P. Greene, Jr. 
United States Court of Appeals for the Federal Circuit 

05-7125 

ESTELLE WALTZER, 

 Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, 

Secretary of Veterans Affairs, 

 Respondent-Appellee. 

__________________________ 

DECIDED: May 9, 2006 

__________________________ 

Before LOURIE, RADER, and LINN, Circuit Judges. 

LINN, Circuit Judge. 

Estelle Waltzer (“Waltzer”) appeals from the judgment of the United States Court 

of Appeals for Veterans Claims (“Veterans’ Court”) affirming the Board of Veterans’ 

Appeals’ (“Board”) denial of her claim of clear and unmistakable error in a February 

1979 decision severing her award of service connection for her psychiatric disorder. 

Waltzer v. Nicholson, No. 01-2086 (Vet. App. Jan. 19, 2005) (“Memorandum Order”). 

Because this court lacks jurisdiction to hear this appeal, it is dismissed. 

I. BACKGROUND 

Waltzer served on active duty from October 24, 1975 to August 18, 1976. On 

September 23, 1977, the Department of Veterans Affairs (“VA”) awarded Waltzer 

service connection for schizophrenia. Subsequently, on December 16, 1977, the VA 

proposed to sever her award of service connection on the ground that her psychiatric 
condition had preexisted service. In connection with the severance proceedings, a field 

examination was conducted, during which the VA obtained copies of her medical 

records from 1973 to 1975. Those records reflected that in 1973 and 1974 Waltzer had 

been treated at a crisis intervention center on numerous occasions; that she was noted 

to have looseness of association; that the examiners’ impressions had included “rule out 

schizophrenia and acute schizophrenia episode”; and that she had been treated with 

several medications. Additionally, those records reflected that Waltzer had been treated 

by Dr. Greenfield from January 1974 to October 1975. Memorandum Order, slip op. at 

3. Taking those records into consideration, the VA, in April 1978, again proposed to 

sever Waltzer’s award of service connection. 

In July 1978, the VA severed Waltzer’s award of service connection, finding that 

a clear and unmistakable error had been committed in the September 1977 decision. 

The VA concluded that her psychiatric disorder had existed prior to service and that it 

had not been aggravated during service. Waltzer appealed the VA decision to the 

Board. On February 5, 1979, the Board upheld the severance of Waltzer’s service 

connection. 

In May 2001, Waltzer submitted to the Board a motion for revision of the 1979 

Board decision on grounds of clear and unmistakable error, arguing that, at the time of 

the February 1979 Board decision, there was no clear and unmistakable evidence 

reflecting either that she suffered from a preexisting psychiatric condition or that a 

preexisting condition was not aggravated by service. On October 23, 2001, the Board 

denied Waltzer’s motion for revision of the February 1979 Board decision, concluding 

that Waltzer’s argument for clear and unmistakable error was nothing more than a 

05-7125 2 
disagreement as to the weighing of the facts at the time of the February 1979 Board 

decision and, therefore, was not a valid basis for clear and unmistakable error. 

Waltzer appealed the October 2001 Board decision to the Veterans’ Court. On 

January 19, 2005, the Veterans’ Court affirmed the October 2001 Board decision. The 

Veterans’ Court concluded that the Board properly found that Waltzer’s argument for 

clear and unmistakable error amounted to a disagreement with the manner in which the 

Board, in 1979, had weighed and evaluated evidence, which could not be a basis for 

clear and unmistakable error. Memorandum Order, slip op. at 6. 

Following entry of judgment, Waltzer timely appealed to this court. 

II. DISCUSSION 

A. Standard of Review 

The scope of this court’s review of a decision of the Veterans’ Court is governed 

by 38 U.S.C. § 7292(d). In accordance with the statute, this court “shall decide all 

relevant questions of law, including interpreting constitutional and statutory provisions.” 

38 U.S.C. § 7292(d)(1) (2000). Absent a constitutional issue, however, 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) (2000). 

B. Analysis 

Under 38 U.S.C. § 1111, the presumption that entrants to military service are in 

sound condition, referred to as “presumption of soundness,” may be rebutted only 

“where clear and unmistakable evidence demonstrates that the injury or disease existed 

before acceptance and enrollment and was not aggravated by [the veteran’s military] 

service.” 38 U.S.C. § 1111 (2000). 

05-7125 3 
Waltzer contends that the evidence relied upon by the VA was legally insufficient 

to constitute clear and unmistakable evidence necessary to sever her award of service 

connection. Consequently, Waltzer argues, the Veterans’ Court erred by refusing to 

review the evidence de novo to determine whether the evidence was legally sufficient to 

rebut the presumption of soundness. The government responds that the determination 

of whether the evidence before the Board in 1979 was legally sufficient to rebut the 

presumption of soundness is not a legal question and involves application of law to 

facts, over which this court does not possess jurisdiction. Citing this court’s decision in 

Kent v. Principi, 389 F.3d 1380 (Fed. Cir. 2004), Waltzer counters that her argument 

regarding the legal sufficiency of the evidence is a question of law. 

We disagree with Waltzer’s argument regarding the sufficiency of the evidence. 

A challenge to the legal sufficiency of the evidence tests whether the evidence in 

question, as a matter of law, is capable of meeting the applicable legal standard. 

“Strictly speaking, evidence is said to be insufficient in law only in those cases where 

there is a total absence of such proof, either as to its quantity or kind, as in the particular 

case some rule of law requires as essential to the establishment of the fact.” Metro. 

R.R. Co. v. Moore, 121 U.S. 558, 569 (1887). In this instance, Waltzer does not argue 

either that there was no evidence to rebut the presumption of soundness, or that the 

evidence relied upon by the Board in 1979 was of such character that it was, as a 

matter of law, insufficient to rebut the presumption. Thus, regardless of her choice of 

words in characterizing her claim, Waltzer’s challenge to the sufficiency of the evidence 

is not a challenge to the legal sufficiency of the evidence. Instead, Waltzer merely 

05-7125 4 
challenges the weight or sufficiency in fact of the evidence required to rebut the 

presumption of soundness. 

Our precedent is clear that “whether the evidence regarding [the veteran’s] preexisting condition rises to the level of ‘clear and unmistakable evidence’ is simply the 

application of the facts to the legal standard established by section 1111, an issue that 

we are without jurisdiction to consider.” Belcher v. West, 214 F.3d 1335, 1338 (Fed. 

Cir. 2000); see Harris v. West, 203 F.3d 1347, 1350 (Fed. Cir. 2000) (holding that the 

question of whether evidence in a case is sufficient to rebut the statutory presumption of 

soundness involves the application of law or regulation to the facts and is outside our 

jurisdiction to review). Thus, we are without jurisdiction to review Waltzer’s challenge to 

the sufficiency of the evidence required to rebut the presumption of soundness. 

Waltzer’s reliance on our decision in Kent is misplaced. In Kent, we stated that 

“a question as to the legal sufficiency of the evidence is a question of law.” 389 F.3d at 

1383. However, as the context of that statement makes clear, Kent does not stand for 

the proposition that questions regarding the sufficiency in fact of the evidence, which 

require application of law to fact, are within the jurisdiction of this court. In Kent, the 

veteran argued that the presumption of soundness resulting from a clear pre-entry 

physical could not be overcome by later-discovered independent medical evidence of a 

preexisting condition because such independent medical evidence is of a character that, 

in the face of a conflicting pre-entry physical, is incapable, as a matter of law, of meeting 

the legal standard of “clear and unmistakable evidence” necessary to overcome the 

presumption under § 1111. Id. at 1383. We held in Kent that § 1111 contemplated 

precisely such a conflict in the evidence and that the statute cannot be interpreted in a 

05-7125 5 
way that would make the presumption of soundness irrebuttable. Id. Nothing in the 

court’s opinion suggests that questions regarding the weighing of evidence are in any 

way subject to the jurisdiction of this court. 

III. CONCLUSION 

Because we do not have jurisdiction to review this appeal, it is dismissed. 

DISMISSED

05-7125 6