N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
LUTHER J. BUCKNER, Claimant

- Appellant,

v.

ERIC K. SHINSEKI, S ecretary 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: Augus t 14, 2013

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L UTHER J. B UCKNER , of Shawnee, Oklahoma, pro se.

D ANIEL R ABINOWITZ , Trial Attorney, Commercial Lit igation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent

- appellee. With him on the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Dire ctor, and M ARTIN F. H OCKEY
, J R

. , Assist ant Director. Of counsel on the brief were D AVID J. B ARRANS , DeputyLUTHER BUCKNER v. SHINSEKI 2

Assistant General Counsel, and M EGHAN D. A LPHONSO
, Attorney, Office of General Counsel, United States D epartment of Veterans Affairs, Washington, DC.

______________________

Before L OURIE
, M AYER
, and O’M ALLEY
, Circuit Judges.

P ER C URIAM

. 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 constit utional issues and only challenges factual determinations or the a pplication of the law to the facts of his case, it is dismissed for lack of jurisdiction.

B ACKGROUND
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 r emove 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 diste ntion 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 gastrointe stinal disorder could be related to past radiation trea tment. 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 “poss ible radiation enteritis as secondary to service

- connected dis ability 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 D ORLAND ’ S I LLUSTR ATED M EDICAL D ICTIONARY 624 (32d ed. 2012)). In August 1995, the Regional Office (“RO”) denied Mr. Buckner’s clai m, concluding that there

was no evidence of a gastrointestinal disorder during military service and no evidence that Mr. Buckner r eceived radiation treatment during service. Id.
The Board reopened Mr. Buckner’s claim in November 2005, after Mr. Buckner and his spouse submitted add itional 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 connec ting Mr. Buckner’s gastrointestinal condition with his mili tary 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 n ot have its onset during service and did not result from Mr. Buc kner’s testicular cancer. Id.

In October 2007, the RO denied entitlement to disabi lity compensation for Mr. Buckner’s gastrointestinal disorder, concluding that it was not secondary to his

se rvice

- co nnected testicular carcinoma or post

- traumatic

st ress 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 Veteran s Court vacated the Board’s decision and remanded the claim pursuant to a jointLUTHER BUCKNER v. SHINSEKI 4

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 Rec ords Center (“NPRC”) provide Mr. Buc kner’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. Th e records the NPRC provided, however, already were part of the record before the RO

. Id. The RO ultimately denied Mr. Buc kner’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 di sorder 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 aggra vated by service or a service -connected disability, including posttraumatic stress disorder or right testicle carcinoma.
A15. The Veterans Court affirmed, rejecting Mr. Buc kner’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.

A NALYSIS
“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] C ourt on a rule of law or any statute or regulation . . . or any interpretation thereof

. . . that wasLUTHER BUCKNER v. SHINSEKI 5

relied on by the Court in making the dec ision.” 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 dete rmination, 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 C ourt’s conclusions aligned with those of the examiner reached following the March 2007 VA examination. But, a ccording to Mr. Buckner, the VA examiner merely questioned him about his condi tion, whereas his private physicians conducted an endoscop ic examination. Consequently, Mr. Buckner suggests that his private physicians’ opinions should have been given more weight than those of the VA examiner. The Vete r1 Mr. Buckner does not expressly raise any const itutional challenges , and we conclude that there are no constitutional issues presented in this appeal. See Pinc kney v. Shinseki , 467 F. App’x 895, 897 (Fed. Cir. 2012) (finding that the appellant did not raise any constitutio nal issues when his arguments merely challenged t he correctness of factual conclusions and the application of law to the facts of the case). Mr. Buckner express es frustration with his inability to present his arguments in

person because of his inability to travel to Washington, D.C. , and h e requests tha t 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

. W hile w e 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

.LUTHER BUCKNER v. SHINSEKI 6

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 chem icals, such as the herbicide Agent Orange, can cause medical probl ems that manifest many years after exp osure. 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 Leo nhardt 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 r eview.”); Johnson v. Shins eki , 440 F. App’x 919, 922 (Fed. Cir. 2011) (“Mr. Johnson effectively asks this court to reconsider the evidence and his medical history to co nclude that there is a nexus between his back condition and his military service. This is a quintessential factua l 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 o b2 In accordance with Federal Circuit Rule 32.1(d), we refer to nonprecedential dispositions for “guidance or

persua sive reasoning,” but we do not give such dispos itions “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 Boa rd’s determination that the VA had fu lfilled its duty to assist by “ma[king] several requests to N PRC 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 Vetera ns 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) (Arg uments “that medical records existed but were not obtained by the VA

. . . involve challenges to factual matters that

we can not review.”)

. C ONCLUSION
Mr. Buckner’s arguments on appeal do not r aise any constitutional issues and merely challenge factual dete rminations or the application of the law to the facts of his case. Because we lack jurisdiction to review the Veterans Cour t’s conclusions challenged on appeal , Mr. Buckner’s appeal is dismissed.

DISMISSED