NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LUTHER J. BUCKNER,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Defendant-Appellee.

______________________ 

2013-7071

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 11-3536, Judge Mary J. Schoelen.

______________________ 

Decided: August 14, 2013

______________________ 

LUTHER J. BUCKNER, of Shawnee, Oklahoma, pro se. 

DANIEL RABINOWITZ, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

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

With him on the brief were STUART F. DELERY, Acting 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of 

counsel on the brief were DAVID J. BARRANS, Deputy 
2 LUTHER BUCKNER v. SHINSEKI

Assistant General Counsel, and MEGHAN D. ALPHONSO, 

Attorney, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

______________________ 

Before LOURIE, MAYER, and O’MALLEY, Circuit Judges.

PER CURIAM. 

Luther J. Buckner appeals the decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”), affirming the Board of Veterans’ Appeals’ 

(“Board”) denial of entitlement to disability compensation 

for a gastrointestinal disorder. Buckner v. Shinseki, No. 

11–3536, 2012 WL 5900987 (Ct. Vet. App. Nov. 26, 2012). 

Because Mr. Buckner’s appeal does not raise any constitutional issues and only challenges factual determinations 

or the application of the law to the facts of his case, it is 

dismissed for lack of jurisdiction.

BACKGROUND

Mr. Buckner served in the United States Army from 

April 1965 until April 1968, including service in the 

Republic of Vietnam. Buckner, 2012 WL 5900987, at *1. 

During his service, Mr. Buckner developed cancer of the 

right testicle and underwent two surgeries—one to remove the testicle and another to remove lymph nodes to 

determine whether the cancer had spread. Id. Following 

the second surgery, Mr. Buckner’s doctors concluded that 

the cancer had not spread and determined that Buckner 

was cured. Id.

According to Mr. Buckner’s private medical records, 

Mr. Buckner underwent an upper gastrointestinal series 

in February 1988 and was treated for abdominal distention in March 1990. Id. Mr. Buckner’s physician reported 

that Mr. Buckner had told him that he had received 

radiation therapy in 1967 for carcinoma of the testicle. 

Id. The physician opined that Mr. Buckner’s gastrointestinal disorder could be related to past radiation treatment. Id.
LUTHER BUCKNER v. SHINSEKI 3

In November 1994, Mr. Buckner submitted a claim to 

the Department of Veterans Affairs (“VA”) for disability 

compensation for stomach problems diagnosed as “possible radiation enteritis as secondary to service-connected 

disability acquired absence, right testicle for carcinoma.” 

Id. (footnote, citation, and internal quotation marks 

omitted). “‘Radiation enteritis’ is defined as ‘damage to 

the small intestine by ionizing radiation.” Id. at *1 n.1 

(quoting DORLAND’S ILLUSTRATED MEDICAL DICTIONARY

624 (32d ed. 2012)). In August 1995, the Regional Office 

(“RO”) denied Mr. Buckner’s claim, concluding that there 

was no evidence of a gastrointestinal disorder during 

military service and no evidence that Mr. Buckner received radiation treatment during service. Id.

The Board reopened Mr. Buckner’s claim in November 

2005, after Mr. Buckner and his spouse submitted additional statements in support of the claim and requested a 

copy of Mr. Buckner’s service medical records from the 

VA. Id. at *2. The Board remanded the claim to the 

Appeals Management Center (“AMC”), and the AMC 

ultimately concluded that there was no evidence connecting Mr. Buckner’s gastrointestinal condition with his 

military service. Id. Subsequently, the Board again

remanded Mr. Buckner’s claim for further development, 

including a VA examination. Id. The VA examination 

was conducted in March 2007, and the examiner opined 

that Buckner’s gastrointestinal disorder did not have its 

onset during service and did not result from Mr. Buckner’s testicular cancer. Id.

In October 2007, the RO denied entitlement to disability compensation for Mr. Buckner’s gastrointestinal 

disorder, concluding that it was not secondary to his

service-connected testicular carcinoma or post-traumatic 

stress disorder disabilities, or due to herbicide exposure. 

Id. Mr. Buckner’s request for reconsideration was denied, 

and Mr. Buckner appealed to the Veterans Court. Id. In 

August 2009, the Veterans Court vacated the Board’s 

decision and remanded the claim pursuant to a joint 
4 LUTHER BUCKNER v. SHINSEKI

motion for remand. Id. The Board then remanded Mr. 

Buckner’s claim to the RO for further development. Id. 

In January 2010, the RO requested that the National 

Personnel Records Center (“NPRC”) provide Mr. Buckner’s hospitalization and treatment records from his 

service for the three months prior to Buckner’s treatment 

for testicular cancer. Id. In response, the NPRC provided 

all of the available requested records. Id. The records the 

NPRC provided, however, already were part of the record 

before the RO. Id. The RO ultimately denied Mr. Buckner’s claim, which then came before the Board. Id. The 

Board also denied entitlement to disability compensation, 

concluding that

[t]he preponderance of the evidence is against 

finding that [Mr. Buckner’s] gastrointestinal disorder manifested in service or within one year of 

separation from service, is the result of herbicide 

exposure in service, or is proximately due to or 

been aggravated by service or a service-connected 

disability, including posttraumatic stress disorder 

or right testicle carcinoma.

A15. The Veterans Court affirmed, rejecting Mr. Buckner’s arguments that “the Board erred in giving greater 

weight to the VA examiner’s opinion than to the opinion 

of his private physicians” and that the VA did not fulfill 

its duty to assist under 38 U.S.C. § 5103A by “fail[ing] to 

obtain service medical records that detail the operation he 

had and another record that shows that he was treated 

for a stomach problem while in Vietnam.” Buckner, 2012 

WL 5900987, at *3–6. Mr. Buckner appealed.

ANALYSIS

“This court’s jurisdiction to review decisions of the 

Veterans Court is limited by statute.” Kyhn v. Shinseki, 

716 F.3d 572, 575 (Fed. Cir. 2013). Under 38 U.S.C. 

§ 7292(a), this court may review “the validity of a decision 

of the [Veterans] Court on a rule of law or any statute or 

regulation . . . or any interpretation thereof . . . that was 
LUTHER BUCKNER v. SHINSEKI 5

relied on by the Court in making the decision.” Section 

7292(d)(2), however, provides that, “[e]xcept to the extent 

that an appeal . . . presents a constitutional issue, [this 

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.”

On appeal, Mr. Buckner disputes a number of the 

Veterans Court’s determinations.1 In particular, Mr. 

Buckner suggests that the court improperly weighed 

medical evidence related to his gastrointestinal disorder. 

The Veterans Court’s conclusions aligned with those of 

the examiner reached following the March 2007 VA 

examination. But, according to Mr. Buckner, the VA 

examiner merely questioned him about his condition, 

whereas his private physicians conducted an endoscopic 

examination. Consequently, Mr. Buckner suggests that 

his private physicians’ opinions should have been given 

more weight than those of the VA examiner. The Veter1 Mr. Buckner does not expressly raise any constitutional challenges, and we conclude that there are no 

constitutional issues presented in this appeal. See Pinckney v. Shinseki, 467 F. App’x 895, 897 (Fed. Cir. 2012) 

(finding that the appellant did not raise any constitutional issues when his arguments merely challenged the 

correctness of factual conclusions and the application of

law to the facts of the case). Mr. Buckner expresses

frustration with his inability to present his arguments in 

person because of his inability to travel to Washington, 

D.C., and he requests that we order the Veterans Court to 

conduct a hearing in Muskogee, Oklahoma. This request, 

however, does not raise a constitutional issue, and is 

beyond the power of this court. While we are sympathetic 

to Mr. Buckner’s concerns, it appears that the Board and 

Veterans Court addressed all of Mr. Buckner’s arguments

and reached their determinations after evaluating all 

available evidence. 

 
6 LUTHER BUCKNER v. SHINSEKI

ans Court’s weighing of evidence, however, is a factual 

determination, and reviewing such a determination is 

beyond the jurisdiction of this court. Bastien v. Shinseki, 

599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and 

weighing of evidence and the drawing of appropriate 

inferences from it are factual determinations committed 

to the discretion of the fact-finder. We lack jurisdiction to 

review these determinations.”).

Mr. Buckner also suggests that the Veterans Court 

failed to appreciate that exposure to radiation or chemicals, such as the herbicide Agent Orange, can cause 

medical problems that manifest many years after exposure. Whether the evidence of record establishes a nexus 

between an in-service occurrence and a post-service 

disability, however, is also a factual determination that 

this court lacks jurisdiction to review. See Leonhardt v. 

Shinseki, 463 F. App’x 942, 947 n.3 (Fed. Cir. 2012) 

(“Whether there was sufficient medical or lay evidence in 

the record, as of 1961, to establish nexus is a factual 

determination that this court lacks jurisdiction to review.”); Johnson v. Shinseki, 440 F. App’x 919, 922 (Fed. 

Cir. 2011) (“Mr. Johnson effectively asks this court to 

reconsider the evidence and his medical history to conclude that there is a nexus between his back condition 

and his military service. This is a quintessential factual 

determination that we are without jurisdiction to 

make.”).2

Finally, Mr. Buckner suggests that the VA did not 

comply with its duty to assist by failing to obtain certain 

service medical records. The VA has a duty to assist 

under 38 U.S.C. § 5103A, and that duty includes 

“mak[ing] reasonable efforts to assist a claimant in ob2 In accordance with Federal Circuit Rule 32.1(d), 

we refer to nonprecedential dispositions for “guidance or 

persuasive reasoning,” but we do not give such dispositions “the effect of binding precedent.”

 
LUTHER BUCKNER v. SHINSEKI 7

taining evidence necessary to substantiate a claimant’s 

claim.” § 5103A(a)(1); see also Golz v. Shinseki, 590 F.3d 

1317, 1320–21 (Fed. Cir. 2010). The Veterans Court 

upheld the Board’s determination that the VA had fulfilled its duty to assist by “ma[king] several requests to 

NPRC that did not reveal any additional service medical 

records or suggest that there might have been records 

that were not produced.” Buckner, 2012 WL 5900987, at 

*5. We lack jurisdiction to review this conclusion, as the 

Veterans Court was merely applying the law to the facts 

of the case. See Glover v. West, 185 F.3d 1328, 1333 (Fed. 

Cir. 1999) (concluding that there was no jurisdiction to 

review the Veterans Court’s determination that there was 

no breach of the duty to assist); Tucker v. Shinseki, 484 F. 

App’x 525, 528 (Fed. Cir. 2012) (finding no jurisdiction to 

review the determination that “the duty to assist was 

satisfied” because it involved the “mere application of 

controlling case law to the relevant facts”); see also Keel v. 

Nicholson, 241 F. App’x 702, 705 (Fed. Cir. 2007) (Arguments “that medical records existed but were not obtained 

by the VA . . . involve challenges to factual matters that 

we cannot review.”). 

CONCLUSION

Mr. Buckner’s arguments on appeal do not raise any 

constitutional issues and merely challenge factual determinations or the application of the law to the facts of his 

case. Because we lack jurisdiction to review the Veterans 

Court’s conclusions challenged on appeal, Mr. Buckner’s 

appeal is dismissed.

DISMISSED