Filed: Dec. 15, 2020
Latest Update: Dec. 16, 2020
Case: 20-1880 Document: 29 Page: 1 Filed: 12/15/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CORNELL HOWARD,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1880
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-1487, Judge Joseph L. Toth.
______________________
Decided: December 15, 2020
______________________
CORNELL HOWARD, Denver, CO, pro se.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.,
LOREN MISHA PREHEIM; Y. KEN LEE, DEREK SCADDEN, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
Case: 20-1880 Document: 29 Page: 2 Filed: 12/15/2020
2 HOWARD v. WILKIE
Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
PER CURIAM.
Cornell Howard appeals from the decision of the Court
of Appeals for Veterans Claims (“the Veterans Court”) af-
firming a decision of the Board of Veterans’ Appeals (“the
Board”) denying service connection. See Howard v. Wilkie,
No. 18-1487, 2019 WL 5598324 (Vet. App. Oct. 31, 2019)
(“Decision”). Because Howard raises only factual issues
over which we lack jurisdiction, we dismiss the appeal.
BACKGROUND
Howard served on active duty in the Marine Corps
from November 1975 to October 1976. Howard’s entrance
medical examination reported no abnormalities. Service
Treatment Records (“STRs”) reveal that Howard was
treated for multiple abdominal issues during his service.
In January 1976, Howard received treatment for an inter-
mittent mid-epigastric dull ache. In May 1976, Howard re-
ported to the emergency room complaining of severe
abdominal pain. At the time of discharge a physician noted
that the cause of the pain was of “unknown etiology,” and
follow-up examination showed no abnormality. In Septem-
ber 1976, Howard received treatment for a rash and nodule
lump in his groin area. Howard was discharged in October
1976, and his separation examination was normal with no
noted abnormalities relating to his abdomen or groin.
In November 1980, Howard sought disability compen-
sation for a lower abdominal problem, claiming that he had
undergone a hernia repair procedure after service in 1977
at a Department of Veterans Affairs (“VA”) medical facility
in St. Louis. Howard alleged that he was injured during a
training exercise while carrying a military cannon which
was abruptly dropped by other service members carrying
the cannon, leaving Howard to hold onto the weapon that
weighed several hundred pounds and causing his hernia
Case: 20-1880 Document: 29 Page: 3 Filed: 12/15/2020
HOWARD v. WILKIE 3
injury. VA denied Howard’s claim in 1984, finding that
service records did not confirm the existence of any chronic
disability, and Howard did not appeal.
In 2011, Howard filed another disability compensation
claim for hernia residuals. Howard restated his claim that
he had undergone a hernia operation in St. Louis and
added allegations that the military physician who per-
formed his separation exam told him he had a right ingui-
nal hernia and that he had undergone a second hernia
operation in Denver. VA unsuccessfully sought records of
both procedures and issued a formal finding of unavailabil-
ity of records. VA obtained a medical examination to de-
termine whether Howard had a hernia disorder connected
to his service. The examiner noted that Howard had a her-
nia in the past and opined that the hernia was less likely
than not incurred in or caused by Howard’s claimed in-ser-
vice injury, and VA denied service connection.
Howard appealed to the Board. The Board held a hear-
ing during which he again reported that he injured himself
lifting a cannon but also mentioned for the first time an
injury while lifting a tree during basic training. The Board
discounted the credibility of Howard’s statements for lack
of consistency and, relying on Howard’s STRs and the 2012
examination, denied service connection.
Howard appealed to the Veterans Court, which af-
firmed the Board’s decision. Specifically, the court found
that VA satisfied its duty to assist Howard under 38 U.S.C.
§ 5103A because it sought records of his two alleged hernia
operations even though the records ultimately proved una-
vailable. Decision, 2019 WL 5598324, at *3. With respect
to the cannon incident, the court concluded that the duty
to assist did not extend to obtaining STRs of fellow Marines
who were present at the time because “there is no apparent
reason why the marines who served with Mr. Howard
would not now corroborate a lifting injury if they witnessed
it,” and Howard was otherwise free to submit statements
Case: 20-1880 Document: 29 Page: 4 Filed: 12/15/2020
4 HOWARD v. WILKIE
from them.
Id. The court also held that the Board did not
err in failing to address certain evidence provided by How-
ard finding that the evidence was not relevant to whether
Howard was injured during the lifting incident.
Id. Fi-
nally, the court found that the benefit-of-the-doubt rule,
38 U.S.C. § 5107(b), did not apply to Howard’s claim be-
cause the Board did not find that the evidence for and
against in-service incurrence of Howard’s injury was rela-
tively equal.
Id. at *4. Howard appealed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review a decision of the Veterans
Court with respect to a rule of law or interpretation of a
statute or regulation relied on by the Veterans Court in its
decision. 38 U.S.C. § 7292(a). However, except with re-
spect to constitutional issues, we may not review chal-
lenges to factual determinations or challenges to the
application of a law or regulation to the facts of a case.
§ 7292(d)(2).
On appeal, Howard principally argues that the Board
and Veterans Court failed to consider relevant evidence.
Specifically, Howard argues that the Board and Veterans
Court failed to consider a document entitled “Disposition of
Diagnosis” in his service medical records that lists “7855”
as a diagnosis code related to the treatment he received in
May 1976. Howard asserts that the code corresponds to a
hernia diagnosis, which supports his contention that the
cause of his May 1976 admission to the hospital for ab-
dominal pain was a hernia, not unknown as determined by
the Board. Howard also appears to argue that VA did not
satisfy its duty to assist by failing adequately to investigate
the cannon incident.
The government responds that we lack jurisdiction to
review the Veterans Court’s decision because Howard
raises only factual issues on appeal. Specifically, the gov-
ernment argues that the Board thoroughly considered the
Case: 20-1880 Document: 29 Page: 5 Filed: 12/15/2020
HOWARD v. WILKIE 5
records regarding Howard’s May 1976 treatment in con-
cluding a lack of in-service incurrence of Howard’s injury,
and we lack jurisdiction to reweigh the evidence. Likewise,
the government argues that whether VA satisfied its duty
to assist is a factual issue that we lack authority to review.
We agree with the government. Regarding his May
1976 treatment, Howard’s basic argument is that the
Board gave too much weight to records indicating that
Howard’s abdominal pain was of “unknown etiology” and
too little weight to the Disposition and Diagnosis form that
may suggest that his condition was due to a hernia. But
“[t]he evaluation and weighing of evidence and the drawing
of appropriate inferences from it are factual determina-
tions committed to the discretion of the fact-finder,” and we
lack jurisdiction to reweigh evidence that has already been
considered by the Board. Bastien v. Shinseki, 599 F.3d
1301, 1306 (Fed. Cir. 2010). As the government points out,
the document on which Howard relies was in the record be-
fore the Board, and the Board is presumed to have consid-
ered all evidence of record. See Newhouse v. Nicholson,
497
F.3d 1298, 1302 (Fed. Cir. 2007). The fact that the Board
did not specifically refer to the document is insufficient to
overcome this presumption.
With respect to Howard’s argument that VA did not
fulfill its duty to assist, we agree with the government that
we lack jurisdiction to consider this issue. Whether VA has
fulfilled its duty to assist is also a factual question that we
lack jurisdiction to review. See Garrison v. Nicholson, 494
F.3d 1366, 1370 (Fed. Cir. 2007). Here, the Veterans Court
concluded that Howard “has not shown as clearly errone-
ous the Board’s determination that the duty to assist was
satisfied,” Decision,
2019 WL 5598324, at *3, and we can-
not review the court’s conclusion.
Case: 20-1880 Document: 29 Page: 6 Filed: 12/15/2020
6 HOWARD v. WILKIE
CONCLUSION
We have considered Howard’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
dismiss the appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.
