NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LIVIA M. SCOTTO,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2014-7135

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 13-749, Judge Alan G. Lance, Sr.

______________________ 

Decided: July 10, 2015

______________________ 

LIVIA M. SCOTTO, Valrico, FL, pro se. 

MARTIN M. TOMLINSON, Commercial Litigation 

Branch, Civil Division, United States Department of 

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

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.; DAVID J.

BARRANS, MARTIN JAMES SENDEK, Office of General 

Counsel, United States Department of Veterans Affairs, 

Washington, DC.
2 SCOTTO v. MCDONALD

______________________ 

Before MOORE, SCHALL, and O’MALLEY, Circuit 

Judges.

PER CURIAM. 

Livia M. Scotto appeals from a decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”) affirming a November 28, 2012 decision of the 

Board of Veterans’ Appeals (“Board”) which denied her 

claim for entitlement to service connection for leukemia. 

Scotto v. Gibson, No. 13-0749, 2014 WL 2800741 (Vet. 

App. June 20, 2014). Because Scotto’s appeal does not 

raise a legal or constitutional issue falling within this 

court’s jurisdiction, we dismiss. 

BACKGROUND

Scotto served on active duty in the United States Air 

Force from October 1983 to January 1984. In October 

2009, Scotto submitted a claim for service connection for 

leukemia. In June 2010, the Department of Veterans 

Affairs (“VA”) Regional Office (“RO”) in Honolulu, Hawaii 

denied Scotto’s claim, and she filed a notice of disagreement (“NOD”) later that same month. The RO issued a 

Statement of the Case on March 15, 2011, continuing its 

denial of Scotto’s claim. The RO explained that “there 

continues to be no evidence of a current diagnosis of 

leukemia, and no evidence of leukemia related to service.” 

Respondent’s Appendix (“RA”) 26. Scotto timely appealed 

that decision to the Board. 

In a decision dated November 28, 2012, the Board denied Scotto’s claim for service connection for leukemia, 

finding that the evidence of record does not show a cur-
SCOTTO v. MCDONALD 3

rent diagnosis of leukemia.1 Scotto, 2014 WL 2800741, at 

*1. In reaching this conclusion, the Board noted that 

Scotto’s 1983 service separation medical examination 

report contained no diagnosis or indication of symptoms of 

leukemia at discharge, and none of the subsequent records Scotto submitted “show that she tested positive for 

leukemia or show a diagnosis of leukemia.” RA 35. For 

example, the Board pointed to a September 2011 treatment record which stated that, although Scotto “alleged 

suffering anemia and leukemia, she had not shown the 

provider any documentary evidence of her alleged conditions” and she “refused a blood test.” RA 35. The Board 

recognized that, in certain circumstances, “lay evidence 

may be sufficient to establish a medical diagnosis or 

nexus.” RA 36 (citing Davidson v. Shinseki, 581 F.3d 

1313, 1316 (Fed. Cir. 2009)). But, because Scotto’s 

claimed conditions “require medical expertise and testing 

for identification and diagnosis,” and because the “competent and credible evidence of record” fails to show a diagnosis of leukemia, the Board denied Scotto’s claim. RA 

37-38. Scotto appealed this decision to the Veterans 

Court. 

1 The Board also denied Scotto’s claims for entitlement to service connection for a bilateral foot disability 

and Cooley’s anemia. RA 42. Scotto did not appeal those

claims to the Veterans Court and instead focused solely 

on denial of her leukemia claim both at the Veterans 

Court and in this appeal. Accordingly, those claims are 

deemed abandoned and we need not address them. 

Scotto, 2014 WL 2800741, at *1 (“As the appellant presents no arguments regarding the Board’s denial of her 

claims for service connection for a bilateral foot disability 

and Cooley’s anemia, those claims are deemed abandoned 

and the Court will not address them further.”). 

 
4 SCOTTO v. MCDONALD

In the June 2014 decision on appeal, the Veterans 

Court affirmed the Board’s decision, noting that there is 

no credible evidence that Scotto has leukemia. Scotto, 

2014 WL 2800741, at *1. The court explained that, 

“[a]bsent a current disability, service connection cannot be 

established.” Id. at *2 (citing Shedden v. Principi, 381 

F.3d 1163, 1167 (Fed. Cir. 2004)). Because Scotto failed to 

demonstrate that the Board’s decision was clearly erroneous, the Veterans Court affirmed. Scotto timely appealed 

to this court.

DISCUSSION

Our jurisdiction to review Veterans Court decisions is 

limited by statute. Pursuant to 38 U.S.C. § 7292(a)

(2012), the court may review “the validity of a decision of 

the [Veterans] 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 [Veterans] Court in making the decision.” Unless 

the case presents 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.” 38 U.S.C. § 7292(d)(2). 

Scotto’s arguments on appeal are difficult to decipher. 

For example, she references several legal terms and 

principles—such as judicial misconduct, wrongful death, 

medical malpractice, destruction of evidence, public 

corruption, and “criminal gross negligence”—without any 

explanation or argument as to how those principles apply 

to her case. Setting aside these references, it appears 

that Scotto is challenging the Board’s factual finding that 

she does not have a current diagnosis of leukemia. Indeed, toward the end of her Informal Brief, Scotto states 

“I have leukemia” and “causation in fact.” Informal Br. 
SCOTTO v. MCDONALD 5

¶ 8.2 As explained below, these matters are beyond the 

scope of this court’s jurisdiction. See Conway v. Principi, 

353 F.3d 1369, 1372 (Fed. Cir. 2004) (“[W]hile we can 

review questions of law, we cannot review applications of 

law to fact.”). 

The only issue before the Veterans Court was whether 

the Board erred in denying Scotto’s claim for entitlement 

to service connection for leukemia. Scotto, 2014 WL 

2800741, at *1. As the Veterans Court correctly noted, to 

establish service connection, “the veteran must show: 

(1) the existence of a present disability; (2) in-service 

incurrence or aggravation of a disease or injury; and (3) a 

causal relationship between the present disability and the 

disease or injury incurred or aggravated during service.” 

Id. at *2 (quoting Shedden, 381 F.3d at 1167). The Board 

found that there was no “competent and credible evidence” showing a current diagnosis of leukemia. Id. at *1. 

On appeal, the Veterans Court concluded that Scotto did 

not demonstrate that “the Board’s decision is the product 

of clear error or is otherwise inadequately explained.” Id. 

Citing Shedden, the Veterans Court explained that, 

absent evidence of a current disability, “service connection 

cannot be established.” Id. at *2. Thus the Veterans 

Court’s decision involved both a fact-finding—that Scotto 

did not have any diagnosis of leukemia—and an application of law to fact—that she could not satisfy the elements 

required to establish a claim for service connection. 

2 Scotto asks the court to “call for production of 

documents” and to “subpoena all & any court records.” 

Informal Br. ¶ 6. It is unclear what documents Scotto is 

seeking and whether those documents were previously 

requested below. In any event, neither the Federal Rules 

of Appellate Procedure nor the Federal Circuit Rules 

provide for discovery on appeal.

 
6 SCOTTO v. MCDONALD

Review of these issues is outside the scope of our jurisdiction. See 38 U.S.C. § 7292(d)(2). 

Despite Scotto’s suggestion to the contrary, the Veterans Court’s decision did not involve any questions regarding the validity or interpretation of a statute or 

regulation. In her informal brief on appeal, Scotto lists 

several statutes, including entire sections of the United 

States Code. The only statutes Scotto identifies with 

particularity are: (1) the Radiation Exposure Compensation Act, Pub. L. No. 101-426, 104 Stat. 920 (1990), which 

“provide[s] jurisdiction and procedures for claims for 

compassionate payments for injuries due to exposure to 

radiation from nuclear testing”; and (2) the Veterans’ 

Dioxin and Radiation Exposure Compensation Standards 

Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984), which 

required the VA to promulgate regulations regarding the 

determination of service connection for veterans who were 

exposed to dioxin while performing active service in 

Vietnam. The Veterans Court neither cited nor interpreted these statutory provisions, and Scotto fails to explain 

how they are relevant to this appeal. 

Finally, in her informal brief, Scotto answered “no” to 

the question of whether the Veterans Court decided 

constitutional issues. Despite this concession, Scotto 

elsewhere mentions an “unconstitutional dismissal.” 

Informal Br. ¶ 2. To the extent this reference can be 

construed as an allegation that Scotto’s constitutional 

rights were violated, the Veterans Court’s decision did not 

decide any constitutional issues; merely characterizing 

arguments as constitutional does not make them so. See

Belton v. Shinseki, 524 F. App’x 703, 706 (Fed. Cir. 2013) 

(“Belton’s characterization of his arguments as constitutional does not make them so.”). While we are certainly 

mindful that “pro se filings must be read liberally,” Harris 

v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013) (citations 

omitted), Scotto’s failure to make any specific allegations 

regarding a constitutional violation precludes our review 
SCOTTO v. MCDONALD 7

of that claim. See Helfer v. West, 174 F.3d 1332, 1335 

(Fed. Cir. 1999) (explaining that the “characterization of 

[a] question as constitutional in nature does not confer 

upon us jurisdiction that we otherwise lack”). 

CONCLUSION

We have carefully considered all of Scotto’s submissions and conclude that nothing contained therein raises a 

non-frivolous legal question sufficient to support this 

court’s exercise of jurisdiction. Accordingly, we dismiss 

this appeal for lack of jurisdiction. 

DISMISSED

COSTS

No costs.