Case: 20-1882    Document: 19     Page: 1   Filed: 11/23/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                  LYNN E. COLEMAN,
                   Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2020-1882
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 19-0312, Judge Coral Wong Pi-
 etsch.
                 ______________________

                Decided: November 23, 2020
                  ______________________

    LYNN E. COLEMAN, Houston, TX, pro se.

     MATTHEW JUDE CARHART, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, for respondent-appellee. Also repre-
 sented by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD,
 ROBERT EDWARD KIRSCHMAN, JR.
                  ______________________
Case: 20-1882     Document: 19     Page: 2     Filed: 11/23/2020




 2                                           COLEMAN   v. WILKIE



     Before O’MALLEY, REYNA, and HUGHES, Circuit Judges.
 PER CURIAM.
     Lynn E. Coleman, the widow of veteran Edward C.
 Brass, appeals from a decision of the United States Court
 of Appeals for Veterans Claims (“Veterans Court”) affirm-
 ing a Board of Veterans’ Appeals (“Board”) decision deny-
 ing her request for dependency and indemnity
 compensation benefits. See Coleman v. Wilkie, No. 19-
 0312, 

(Vet. App. Mar. 16, 2020). Because
 we lack jurisdiction over this appeal, we dismiss.
                       I. BACKGROUND
      Edward C. Brass actively served in the U.S. Navy from
 September 1970 to December 1972. Brass died on August
 24, 2002. His death certificate listed respiratory arrest due
 to end stage cirrhosis as the immediate cause of death. It
 is undisputed that, at the time of his death, Brass had hep-
 atitis C, among other illnesses. It is also undisputed that,
 over time, hepatitis C can be a contributing cause of cirrho-
 sis.
     Ms. Coleman filed a request for dependency and indem-
 nity compensation (“DIC”) in December 2010. The Veter-
 ans Administration (“VA”) denied Ms. Coleman’s DIC
 claim, finding that no evidence connected Brass’s death
 with his military service. Ms. Coleman filed a Notice of
 Disagreement, contending that Brass contracted hepatitis
 C during his service in Vietnam, which then contributed to
 his death. Ms. Coleman submitted a private medical opin-
 ion from Dr. Donald Hearn in 2011 (“2011 opinion”). The
 2011 opinion stated that, because Brass was diagnosed
 with hepatitis C at the time of his discharge, it was likely
 that his hepatitis C later contributed to the development of
 Brass’s cirrhosis. In 2014, the VA’s medical examiner, Ms.
 Deborah Todd, considered the 2011 opinion in the context
 of undertaking her own medical examination, and con-
 cluded that Brass’s hepatitis C and cirrhosis were not
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 COLEMAN   v. WILKIE                                       3



 service-related but were more likely than not the result of
 Brass’s post-service alcohol and intravenous drug use
 (“2014 opinion”).
     In the 2014 opinion, Todd considered Ms. Coleman’s
 claim that Brass’s hepatitis C was either incurred in con-
 nection with or caused by syphilis and gonococcal urethritis
 that Brass contracted, and for which he was treated, while
 in service. Todd concluded that it was less likely than not
 that Brass contracted hepatitis C while in service. Todd
 noted that “the infectious organisms causing” the sexually
 transmitted diseases Brass contracted are unrelated to the
 hepatitis C virus and that it was at least as likely as not
 that Brass’s post-service intravenous drug and alcohol use
 led to his exposure to and development of hepatitis C. Todd
 also stated both that there was no evidence in Brass’s med-
 ical record of a hepatitis C diagnosis during service and
 that the test to detect hepatitis C was not developed until
 long after his service ended. Based on these records, the
 Board denied Ms. Coleman DIC benefits, finding that the
 evidence weighed against Brass’s death being service-con-
 nected.
     Ms. Coleman appealed to the Veterans Court. On ap-
 peal, the parties agreed to a joint motion to remand
 (“JMR”) because Todd’s 2014 opinion did not address cer-
 tain in-service risk factors for contracting hepatitis B and
 C that Ms. Coleman asserted Brass faced. Specifically,
 Todd did not address the higher than average occurrence
 of hepatitis among Vietnam veterans generally, Brass’s
 handling of dead bodies while in service, and his inocula-
 tions by jet gun. The Board ordered Todd to provide an
 addendum to her 2014 opinion (the “2018 addendum opin-
 ion”) addressing those risk factors. Todd’s 2018 addendum
 opinion also addressed an in-service medical record from
 1972, which documented the fact that Brass had sought
 medical treatment for upset stomach, nasal congestion,
 weakness, achiness, and fatigue.
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 4                                           COLEMAN   v. WILKIE



      Todd concluded in the 2018 addendum opinion that the
 1972 record was inconclusive because the diagnosis in the
 records was illegible and the symptoms identified were
 general and non-specific; they could be indicative of any
 number of illnesses. And Todd noted that Brass’s dis-
 charge record “revealed a normal abdominal exam, no evi-
 dence of jaundice or other findings suggestive of hepatitis.”
 Todd then concluded that it is less likely than not that any
 of the identified risk factors caused Brass’s hepatitis C and
 resulting cirrhosis. Specifically, Todd cited to studies find-
 ing no connection between the handling of dead bodies in
 combat and incidences of hepatitis C, to medical records in-
 dicating that Brass received standard inoculations and was
 not inoculated by jet gun, and that the studies describing
 higher incidences of hepatitis C in Vietnam Era veterans
 found that the incidences were usually found in conjunc-
 tion with other risk factors, such as intravenous drug use
 and incarceration for over 48 hours—risk factors to which
 Brass was not exposed until after his separation from ser-
 vice. On December 13, 2018, the Board again denied ser-
 vice-connection for Brass’s death, finding that the evidence
 did not support an in-service finding.
      Ms. Coleman appealed the Board’s 2018 decision to the
 Veterans Court. Ms. Coleman argued that the Board’s de-
 cision was inadequate because it: (a) did not consider the
 2011 opinion; (b) improperly assessed Brass’s credibility;
 and (c) did not address the 1972 record. Ms. Coleman ad-
 ditionally argued that the Board failed to comply with the
 terms of the JMR because its 2018 decision did not address
 the adequacy of Todd’s 2014 opinion. On March 16, 2020,
 the Veterans Court affirmed the Board’s 2018 decision, rea-
 soning that the Board had in fact considered the 2011 opin-
 ion, did not make improper credibility determinations, had
 expressly addressed the 1972 records, had substantial evi-
 dence for its findings, and had complied with the terms of
 the JMR. In sum, the court found that all of the errors to
 which Ms. Coleman pointed were not reflected in the
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 COLEMAN   v. WILKIE                                        5



 record. Ms. Coleman timely appealed to this Court on May
 21, 2020.
                       II. DISCUSSION
     Ms. Coleman asks us to “make a determination that
 Brass’[s] death was service[-]connected.” And, although
 she answered “no” to the question of whether the Veterans
 Court’s decision involved the validity or interpretation of a
 statute or regulation, Ms. Coleman additionally argues
 that the Veterans Court misinterpreted 38 C.F.R. § 3.102
 by failing to provide Brass with the benefit of the doubt. As
 we explain below, both of these issues are outside our ju-
 risdiction.
     Our jurisdiction to hear appeals from the Veterans
 Court is limited. Under 38 U.S.C. § 7292(c), we may only
 review “challenge[s] to the validity of any statute or regu-
 lation or any interpretation thereof.” And, unless the ap-
 peal involves a constitutional issue, we cannot review the
 Veterans Court’s factual determinations or application of a
 law or regulation to the facts of a specific case. See 38
 U.S.C. § 7292(d)(2). We have consistently applied 38
 U.S.C. § 7292(d)(2) to preclude review of facts and the ap-
 plication of law to facts. See, e.g., Conway v. Principi, 

, 1372–1373 (Fed. Cir. 2004).
     Ms. Coleman first asks us to review the Board’s factual
 finding that Brass’s death was not service-connected. Ms.
 Coleman’s argument on this point revisits many of the fac-
 tual issues that the Veterans Court already addressed,
 such as the 2011 opinion, the 1972 records, and the ade-
 quacy of the 2018 addendum opinion. Because, as reflected
 in the above recitation of the record, the issue of whether
 Brass’s death was service-connected is highly factual in na-
 ture, § 7292 does not grant us jurisdiction to review it.
     Ms. Coleman also argues that the Board erred by fail-
 ing to give her the “benefit of the doubt” in its decision-
 making. The “benefit of the doubt” doctrine requires the
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 6                                            COLEMAN   v. WILKIE



 VA to favor the claimant “[w]hen there is an approximate
 balance of positive and negative evidence regarding any is-
 sue material to the determination of a matter.” 38 U.S.C.
 § 5107(b); see also 38 C.F.R. § 3.102 (giving veterans the
 benefit of the doubt when there is “an approximate balance
 of positive and negative evidence which does not satisfac-
 torily prove or disprove a claim”). This doctrine does not
 apply where “the Board determines that the preponderance
 of the evidence weighs against the veteran’s claim or when
 the evidence is not in equipoise.” Fagan v. Shinseki, 

, 1287 (Fed. Cir. 2009) (internal quotation marks
 and citation omitted). Neither the Board nor the Veterans
 Court described the evidence as “in equipoise”; both contin-
 ually referred to the more likely than not or less likely than
 not preponderance standards.
     According to Ms. Coleman, the Board should have
 given her the “benefit of the doubt” when determining
 whether Brass’s death was service-connected. By asserting
 that the Board and the Veterans Court erred by not apply-
 ing 38 C.F.R. § 3.102, Ms. Coleman “argues by implication
 that the evidence of record was in equipoise, contrary to the
 Board’s explicit findings. This argument thus boils down
 to disagreement with the Board’s factual determinations
 and its application of law to those facts, which lie beyond
 the scope of our jurisdiction.” Harlston v. Shinseki, 455 F.
 App’x 992, 994 (Fed. Cir. 2012) (citation omitted). We
 therefore lack jurisdiction under 38 U.S.C. § 7292 to con-
 sider Ms. Coleman’s “benefit of the doubt” argument.
                       III. CONCLUSION
     For the reasons discussed above, we lack jurisdiction to
 review the Veterans Court’s decision under 38 U.S.C.
 § 7292. We therefore dismiss Ms. Coleman’s appeal.
                        DISMISSED
                            COSTS
     No costs.