Federal Circuit, Non-Precedential, 5103A, Duty to Assist, Golz, 590 F.3d at 1323

Excerpt from Dissenting opinion below: "As we have repeatedly stated, “[i]n close or uncertain cases, the VA should be guided by the principles underlying this uniquely pro-claimant system. VA has a duty to assist veterans and is required to ‘fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.’” Golz, 590 F.3d at 1323 (quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)). When in doubt, the VA should attempt to locate the records. ======================================== O’MALLEY, Circuit Judge, dissenting. The majority concludes that we lack jurisdiction be-cause Richard Hime is asking us to resolve disputed material facts and apply the law to those facts. The facts material to the analysis of the VA’s duty to assist, how-ever, are undisputed. We must decide only whether the undisputed, material facts are sufficient to invoke the duty to assist as a matter of law. Because those facts are sufficient, I would vacate the denial of claim entitlement, remand this case, and instruct the VA to attempt to locate the physical therapy records. HIME v. DVA 2 Section 5103A contains requirements, two of which are at issue in this case, that a claimant must satisfy to invoke the VA’s duty to assist in locating treatment records at a VA healthcare facility. First, a claimant must demonstrate that the records are relevant. 38 U.S.C. § 5103A(b)(1), (c)(2). A single, undisputed fact in Mr. Hime’s case satisfies the relevancy requirement: that the Board concluded in its 1983 opinion that Mr. Hime’s right shoulder should not have caused him significant functional problems. Mr. Hime seeks the physical therapy records because he wants to prove that he did experi-ence functional problems in his shoulder. If Mr. Hime can prove that fact, he anticipates proving that, because of those functional problems, he was directed and effectively forced to use his left arm, almost exclusively, which, in turn, caused his left-hip bursitis. Mr. Hime, in other words, is attempting to rebut a Board finding in a case that he is seeking to reopen. Here, there is no dispute that the records at issue are physical therapy records relating to Mr. Hime’s right shoulder injury, the very injury whose severity was at issue in the Board’s determination. Records are relevant for the purpose of Section 5103A if they relate to the injury for which a claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Golz, 590 F.3d at 1321. I would hold, as a matter of law, that treatment records fall within the definition of relevancy if, based on a claimant’s description of them, the records could assist in a claim-ant’s rebutting a prior Board finding in a case that the claimant seeks to reopen. The majority believes that we cannot resolve the rele-vancy requirement as a matter of law because a factual dispute exists as to whether there is a relationship be-tween Mr. Hime’s shoulder and hip injuries. That fact is 3 HIME v. DVA immaterial to the duty to assist in this case. Although Mr. Hime must prove that relationship to prevail on the merits, Section 5103A does not require him to prove his case on the merits to compel the VA to obtain treatment records. The statute only requires him to demonstrate a relationship to the claimed injury and a reasonable possi-bility that the treatment records will help substantiate his claim. Golz, 590 F.3d at 1321. That Mr. Hime is attempting to rebut a prior Board finding in a case that he is seeking to reopen, with records relating to an injury on which that finding turned, indicates that a relation-ship to the claimed injury exists and that the physical therapy records could assist Mr. Hime in substantiating his claim. In addition to the relevancy requirement, a claimant must adequately identify the records sought and furnish information sufficient to locate the records. 38 U.S.C. § 5103A(b)(1), (c)(2). No one disputes the following facts: Mr. Hime filed a statement in support of claim, in which he indicated that he received treatment at the VA Medical Center in Hampton, Virginia. Progress notes indicate that Dr. Palmer referred Mr. Hime for physical therapy on his right shoulder around June 3, 1981, and that Dr. Palmer concluded, on June 22, 1981, that the physical therapy had little effect and discontinued it. The undis-puted facts, therefore, indicate the nature of the treat-ment that Mr. Hime received, the location where he received it, the approximate timeframe when he received it, and the referring doctor’s name. Clearly, such identifi-cation is sufficient for the VA to locate those records. Indeed, it is hard to imagine what more information a claimant would need to provide the VA. The majority contends that Mr. Hime’s identification was inadequate because he did not specifically tell the regional office that he was seeking physical therapy HIME v. DVA 4 records. The statute, however, does not require literal identification. It only requires that a claimant “ade-quately identify” and “furnish[] information sufficient to locate [the] records.” 38 U.S.C. § 5103A(c)(1), (c)(2). The majority cites no authority that equates the statutory requirements to literal identification. Instead, the majority relies on Veterans Court cases, which we are not obligated to follow, and which are dis-tinguishable on their facts. In Loving v. Nicholson, the claimant never contended that additional medical records existed until the Board, apparently on its own initiative, mentioned the possibility that unspecified medical records existed but concluded that the records would not have affected the outcome of the case. 19 Vet. App. 96, 102 (2005). The case record appeared to lack any information shedding light on what the supposedly missing medical records were. See id. Mr. Hime’s submissions, by con-trast, indicate on their face that Mr. Hime participated in physical therapy during a particular timeframe, at a particular facility, and at the direction of a particular doctor. In Canlas v. Nicholson, the Veterans Court was faced with a situation similar to that in Loving. The claimant argued that the VA had a duty to locate what appeared to be her deceased husband’s post-service government employment records because those records might have contained the decedent’s military service number. 21 Vet. App. 312, 315, 317 (2007). The claimant failed to specify, during the pendency of her claim, why that gen-eral category of records could be reasonably expected to disclose the decedent’s service number. Id. The VA had far more specific information before it in Mr. Hime’s case than it did in Canlas. The government suggests in its brief that there is no way of knowing whether there are actually physical therapy records to obtain even if the VA were to search for HIME v. DVA 5 them. Mr. Hime has submitted enough information that the VA should at least investigate. The VA, in fact, sent Mr. Hime a letter after the agency received his application and informed him that the VA was responsible for obtaining relevant records from any federal agency. Mr. Hime was entitled to take the VA at its word. As we have repeatedly stated, “[i]n close or uncertain cases, the VA should be guided by the principles underlying this uniquely pro-claimant system. VA has a duty to assist veterans and is required to ‘fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.’” Golz, 590 F.3d at 1323 (quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)). When in doubt, the VA should attempt to locate the records. If the VA were to locate Mr. Hime’s physical therapy records, I do not suggest that the Board would be obligated to find that those records satisfy the materiality prerequisite to reopening Mr. Hime’s case. I only propose today that we hold that what Mr. Hime has done is sufficient, as a legal matter, to invoke the VA’s duty to assist and provide him another opportunity to argue for the reopening of his claim if the VA finds the records. Accordingly, I respectfully dissent. ============================ NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ RICHARD B. HIME, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7057 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-2236, Judge William A. Moorman. ____________________________ Decided: September 15, 2011 ____________________________ SANDRA W. WISCHOW, Goodman, Allen & Filetti, of Richmond, Virginia, argued for claimant-appellant. RENEE GERBER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were TONY WEST, Assis-tant Attorney General, JEANNE E. DAVIDSON, Director, HIME v. DVA 2 and MARTIN HOCKEY, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant Gen-eral Counsel, and AMANDA R. BLACKMON, Attorney, United States Department of Veterans Affairs, of Wash-ington, DC. __________________________ Before RADER, Chief Judge, and LOURIE and O’MALLEY, Circuit Judges. Opinion for the Court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit Judge O’MALLEY. LOURIE, Circuit Judge. Richard Hime appeals from the decision of the United States Court of Appeals for Veterans Claims (“the Veter-ans Court”) holding that the Department of Veterans Affairs (“VA”) had fulfilled its statutory duty to assist and affirming the denial of his request to reopen his claim for entitlement to service connection for his hip bursitis. Hime v. Shinseki, No. 08-2236, 2010 WL 2978498, at *1 (Vet. App. July 29, 2010) (“Veterans Court Op.”). Because we conclude that Hime’s challenges are outside the scope of our jurisdiction, we dismiss. BACKGROUND Hime served on active duty in the U.S. Navy from 1966 to 1970. During service, he injured his right shoul-der and was granted service connection for his shoulder disability as of 1979. On June 3, 1981, Hime was treated by a VA physician, Dr. Palmer, for his right shoulder condition and sent to physical therapy for two weeks. Dr. Palmer recommended that Hime use his left hand instead of his right in order to alleviate some of the right shoulder pain. A few weeks later, on August 5, 1981, Dr. Palmer 3 HIME v. DVA wrote another treatment plan for Hime, this time for bursitis in his left hip. In 1982, Hime filed a claim for bursitis of the left hip as secondary to his right shoulder disability, contending that it had resulted from performing various actions with his left hand to avoid further injury to his right shoulder. He submitted an opinion from Dr. Palmer stating that the bursitis was directly related to the service-connected condition of his shoulder. The Board of Veterans’ Appeals (“the Board”) denied Hime’s claim in 1983, explaining that Hime had almost full function of his shoulder and that the bursitis had been diagnosed years later. The Board also stated that it had considered Dr. Palmer’s statement in coming to its conclusion. Id. In 2005, Hime submitted a request to reopen his claim for service connection for bursitis. In support of his claim, he submitted three pieces of evidence: (1) Dr. Palmer’s medical statement from 1982, (2) a statement dated 2007 from a private physician on a matter unrelated to bursi-tis, and (3) VA medical progress notes from 1981. The VA medical progress notes that Hime submitted were not in his original claim file. One of the progress notes indi-cates, inter alia, that Hime received physical therapy at the VA medical center in June 1981 for his right shoulder disability. However, Hime did not obtain or submit any individual records of those therapy sessions. The Regional Office (“RO”) denied the request, finding that none of the evidence submitted was new and mate-rial. On appeal, the Board agreed. It noted that Dr. Palmer’s medical statement was considered by the VA in its 1983 decision, and therefore that evidence was not new. It found that the other evidence, including the 1981 treatment notes, was new, but not material, as it did not address the relationship between the hip condition and HIME v. DVA 4 the shoulder disability—the unestablished element in the 1983 decision. Id. It explained that the treatment notes merely demonstrate a diagnosis of the right shoulder disability, a fact that had long been established. The Board further found that the VA had satisfied its duty to assist pursuant to 38 U.S.C. § 5103A(a) and 38 C.F.R. § 3.159(c) because it had “obtained records of treatment reported by [Mr. Hime], including service medical records, VA medical center (VAMC) records and private medical records [and there was] no indication from the record of additional medical treatment for which the RO ha[d] not obtained, or made sufficient efforts to obtain, corresponding records.” The Veterans Court affirmed the Board’s decision. Hime argued to the Veterans Court that the VA had not satisfied its duty to assist him in obtaining VA records because the 1981 treatment notes, which he had obtained and submitted, were not in the original records obtained by the VA. Because the newly submitted treatment notes indicated that Hime was undergoing physical therapy in 1981, Hime argued that there likely existed additional records related to that therapy, such as individual ther-apy session records, that could contain information rele-vant to his bursitis claim. Hime’s argument was that because he had identified potentially relevant records that likely existed but he had not been able to obtain, the VA had a duty to seek out and obtain those records for him prior to deciding his claim for service connection for bursitis of the left hip. The Veterans Court rejected that argument, explain-ing that those notes simply stated that Hime had bursitis, but failed to provide any type of nexus evidence or estab-lish that there existed any other records not reasonably obtained by the VA. Veterans Court Op. at *4. The court 5 HIME v. DVA specifically found that the new evidence submitted by Hime failed to “establish the existence of additional missing medical records.” Id. The court therefore con-cluded that the VA had made reasonable efforts to assist Hime in obtaining medical records necessary to substan-tiate his claim and therefore fulfilled its duty to assist. Id. Hime filed a motion for reconsideration and, in the alternative, for a panel decision. That motion was denied. Hime v. Shinseki, No. 08–2236, 2010 WL 3759887 (Vet. App. Sept. 24, 2010). Hime then timely appealed. DISCUSSION This court’s jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” Id. § 7292(c). We may not, however, absent a constitutional challenge, “review (A) a challenge to a factual determina-tion, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2). Hime argues that the VA made no attempt to obtain his physical therapy treatment records from the VA medical center even though he provided sufficient infor-mation indicating the existence of those records, and yet the Veterans Court found the duty to assist fulfilled. Hime therefore contends that in affirming the Board’s decision, the Veterans Court necessarily held that the VA had no duty to assist him. Hime argues that the Veterans Court’s holding can only stand under an incorrect inter-pretation of 38 U.S.C. § 5103A(c)(2): that the VA would have no duty to find and obtain VA treatment records even when the veteran submits sufficient information HIME v. DVA 6 supporting the likely existence of such records. According to Hime, the Veterans Court’s interpretation renders the duty to assist meaningless because it requires the veteran to obtain and provide records himself because, in his view, that would be the only way to demonstrate that the records actually contain the necessary evidence to sub-stantiate his claim. That, Hime continues, imposes an improper burden on the veteran that cannot be supported by a reasonable reading of the statute. Thus, Hime urges that this court has jurisdiction in this case and that we should correct the VA’s improper interpretation of the statute. The government responds that we lack jurisdiction to review the Veterans Court’s decision in this case because it is an application of law to facts. The government con-tends that the Veterans Court did not interpret § 5103A(c)(2) to mean that the VA had no duty to assist Hime in obtaining medical records and that Hime’s dis-agreement is really with the factual inferences that the Board made as well as the Veterans Court’s determina-tion that the VA had satisfied the duty to assist. It points out that Hime did not specifically inform the RO that additional records could be missing. Thus, it contends, there was no reason for the VA to infer the existence of missing records merely from the existence of the 1981 treatment notes or to conclude that reports of the individ-ual physical therapy sessions, even if they existed, would contain any relevant information. We agree with the government that the question pre-sented here is whether the Board made clearly erroneous factual findings or incorrectly applied the law to the facts of this case, both of which are beyond our jurisdiction. See 38 U.S.C. § 7292 (absent a constitutional issue, this court “may not review (A) a challenge to a factual determina-tion, or (B) a challenge to a law or regulation as applied to 7 HIME v. DVA the facts of a particular case”). The VA’s duty to assist claimants is codified at 38 U.S.C. § 5103A. The VA has a duty to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim-ant’s claim.” Id. § 5103A(a)(1). Section 5103A(c), entitled “Obtaining records for compensation claims,” describes the types of records the VA must assist the veteran in obtaining: (c) Obtaining records for compensation claims.—In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) shall include obtaining the follow-ing records if relevant to the claim: (1) The claimant’s service medical records and, if the claimant has furnished the Secretary informa-tion sufficient to locate such records, other rele-vant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity. (2) Records of relevant medical treatment or ex-amination of the claimant at Department health-care facilities or at the expense of the Depart-ment, if the claimant furnishes information suffi-cient to locate those records. (3) Any other relevant records held by any Federal department or agency that the claimant ade-quately identifies and authorizes the Secretary to obtain. Id. § 5103A(c) (emphases added). The corresponding regulation, 38 C.F.R. § 3.159(c), also lists a claimant’s relevant VA medical records as a category of records that the VA is required to obtain with regard to a veteran’s claim for disability compensation. There can be no doubt HIME v. DVA 8 that Congress intended the VA to assist veterans in obtaining records for compensation claims, and the duty to assist requires the Secretary to make reasonable efforts to obtain “evidence necessary to substantiate the claim-ant’s claim for a benefit.” Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). On the other hand, the duty to assist is not boundless in its scope, and the statute is explicit that only those medical records that are relevant to the veteran’s claim must be sought. Id.; see also McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (“Congress has explicitly defined the VA’s duty to assist a veteran with the factual development of a benefit claim in terms of relevance.”). Relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim. Golz, 590 F.3d at 1321. With regard to the new evidence submitted by Hime, viz., the 1981 treatment notes, the Board made, and the Veterans Court affirmed, two separate findings that Hime appears to challenge: (1) that it failed to support the requisite nexus between his hip and shoulder conditions, and (2) that it failed to establish that there existed any other records not reasonably obtained by the VA. Veter-ans Court Op. at *4. Hime challenges both of those find-ings to argue that the court’s conclusion that the VA had fulfilled its duty to assist resulted from an incorrect interpretation of the statute. We disagree. The first of those findings goes directly to the rele-vance of any physical therapy treatment that Hime un-derwent for his shoulder condition in 1981 to his present claim for hip bursitis. Hime argues that the relevance of the physical therapy records is unquestionable. He points 9 HIME v. DVA out that the treatment notes indicate that he was under-going physical therapy for his right shoulder disability in 1981, and that he had modified his physical activities because of his shoulder disability. According to Hime, because his claim is for hip bursitis as an injury secon-dary to his right shoulder disability, any records devel-oped during the physical therapy for his shoulder disability would be relevant to his claim. The Board reviewed the treatment notes and made a factual determination as to whether they provided the requisite nexus to support Hime’s claim. The June 22, 1981, note specifically states that physical therapy of Hime’s right shoulder provided only temporary relief and the resulting improvement was so small that the therapy was terminated. The Board reviewed that note and found that it “does not relate to the unestablished fact necessary to substantiate the claim.” In effect, the Board found that the 1981 physical therapy of Hime’s right shoulder was not relevant to establishing the “relationship between the veteran’s bursitis of the left hip and his service connected shoulder condition”—the unestablished element in the 1983 Board decision. This is a fact-based determination over which we have no jurisdiction. 38 U.S.C. § 7292; see Golz, 590 F.3d at 1322 (“The Board’s factual finding that . . . records would not be relevant to [the veteran’s] claim is not reviewable by this court.”). Hime next argues that even though the Board found that the treatment notes failed to establish the requisite nexus between his hip and shoulder injuries, the VA was still required to obtain and review the physical therapy records before deciding that they were irrelevant for purposes of § 5103A. That argument fails in light of our recent precedent. Golz, 590 F.3d at 1323 (“It is not the case that the government must obtain records in every case in order to rule out their relevance.” (distinguishing HIME v. DVA 10 Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009))). In Golz, we rejected the veteran’s argument that the VA was obligated to obtain Social Security Administration records relating to a back disability to support the vet-eran’s claim for service connection for post-traumatic stress disorder even though the Board had made a factual determination that those records would be irrelevant to the veteran’s claim. Id. at 1322. We explained that the legal standard for relevance requires the VA to obtain records only if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits. Id. at 1323. As in Golz, the Board in this case made a factual de-termination that Hime’s treatment notes, including statements that he received physical therapy for his right shoulder condition, failed to establish the requisite nexus element for his claim relating to bursitis, and where there is no nexus, there can be no relevance. It would thus be contrary to the plain language of the statute and our precedent to require that the VA obtain detailed records of the physical therapy even where there is no reasonable possibility that they would aid in substantiating Hime’s claim. See 38 U.S.C. § 5103A(c)(2) (“Records of relevant medical treatment . . . .” (emphasis added)); see also Golz, 590 F.3d at 1323 (“There must be specific reason to be-lieve these records may give rise to pertinent information to conclude that they are relevant.” (emphasis added)). We therefore conclude that the Veterans Court did not independently construe section 5103A but rather followed established law in affirming the Board’s decision. See also Darlington v. Shinseki, 415 Fed. Appx. 253, (Fed. Cir. Feb. 22, 2011) (declining to find an error in the Veterans Court’s interpretation of section 5103A where the veteran challenged the Board’s factual determination on relevance of records). Moreover, its determination that Hime’s 11 HIME v. DVA treatment notes relating to physical therapy of his shoul-der failed to provide nexus evidence for his hip claim is a factual one that is not within our jurisdiction. Likewise, the Board’s second finding that Hime’s treatment notes failed to establish the existence of any other records not reasonably obtained by the VA also requires resolving disputed facts and applying the law to those facts, each of which is beyond our jurisdiction. Hime argues that by submitting the June 22 treatment note, he provided sufficient information indicating that physical therapy occurred between early June and June 22, 1981, and that there may exist at the VA medical center individual records of each of those therapy ses-sions. That, according to Hime, constitutes sufficient information under the statute to trigger the VA’s duty to assist so as to require the VA to seek out and obtain any treatment records that may exist for his physical therapy. We disagree. The statute plainly requires the veteran to “adequately identify” the relevant records that the veteran desires the VA to obtain. 38 U.S.C. § 5103A(b). The subsection relating to medical treatment records specifically states that the VA’s duty to assist is only triggered “if the claimant furnishes information sufficient to locate those records.” Id. § 5103A(c)(2). As the government points out, Hime did not in any way inform the RO that he was seeking additional records that were not a part of his file, or that he believed addi-tional records even existed. The government further states that the treatment notes that Hime submitted do not indicate that there are any additional physical ther-apy records. Yet Hime argues that the VA, based merely on his submission of the treatment notes, should have inferred that additional physical therapy records had to be sought out and obtained under its duty to assist. In HIME v. DVA 12 essence, Hime argues that the duty to assist requires the VA to seek out additional medical records whenever evidence submitted by the veteran even remotely suggests that additional records may exist. That interpretation of § 5103A is contrary to the plain language of the statute. See Loving v. Nicholson, 19 Vet. App. 96, 103 (2005) (concluding that the VA’s duty to assist had been fulfilled because “at no time during the pendency of his claim before VA, did Mr. Loving ever identify any additional medical records or quality-assurance reports or request VA to provide them nor explain how they might be rele-vant to his claim”); see also Canlas v. Nicholson, 21 Vet. App. 312, 317 (2007) (“The duty to assist is not a license for a fishing expedition to determine if there might be some unspecified information which could possibly sup-port a claim.”). We therefore conclude that the question whether Hime established that there existed any addi-tional records not reasonably obtained by the VA is a straightforward one of application of law to disputed facts, one that we are not at liberty to review. Hime argues that we are bound by our precedent in Moore, in which we held that the VA had an obligation to obtain service medical records that predated the period for which the claimant sought compensation. 555 F.3d at 1373-74. We explained that the Veterans Court’s decision in that case, categorically ruling such “predated” records as irrelevant to the veteran’s claims was an incorrect interpretation of the statute, contrary even to its own regulation. Id. at 1373. Thus, Moore, like Golz, addressed the meaning and scope of the term “relevant records” as used in the statute. In Moore, we were not presented with the question presented here, viz., whether a veteran has provided sufficient information to adequately identify the records to be obtained, which in our view constitutes application of law to fact. The records actually at issue in 13 HIME v. DVA Moore were the veteran’s service medical records, i.e., records developed during service, which the veteran’s department already possessed and the issue of identifica-tion did not arise. Id. at 1370. As the government points out, that distinction between the types of veteran’s medi-cal records, e.g., records in the possession of the veteran’s department versus records at a VA or even a non-VA health-care facility somewhere across the country is highlighted in the statute itself. Compare 38 U.S.C. § 5103A(c)(1), with § 5103A(c)(2). The holding in Moore is therefore inapposite to the issue presented here. Hime argues that this is a case where “the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran’s claim, [such that] we treat the application of law to un-disputed fact as a question of law.” Conley v. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008). That, however, is not correct. As discussed above, there are facts in this case that are disputed between the parties, particularly includ-ing the possible relationship between the shoulder and hip injuries as well as the likelihood that additional searching for unidentified records would turn up relevant evidence; the Veterans Court reviewed the Board’s factual determinations and application of law to those facts. See Veterans Court Op. at *4 (affirming the Board’s finding as not clearly erroneous). In affirming the Board, the Veter-ans Court relied solely on the plain language and on our prior interpretation of section 5103A. Hime’s challenges on appeal therefore do not fall within the scope of 38 U.S.C. § 7292. CONCLUSION We have considered Hime’s remaining arguments and do not find them persuasive. Accordingly, we dismiss Hime’s appeal for lack of jurisdiction. HIME v. DVA 14 DISMISSED COSTS No costs. NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ RICHARD B. HIME, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7057 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-2236, Judge William A. Moorman. __________________________ O’MALLEY, Circuit Judge, dissenting. The majority concludes that we lack jurisdiction be-cause Richard Hime is asking us to resolve disputed material facts and apply the law to those facts. The facts material to the analysis of the VA’s duty to assist, how-ever, are undisputed. We must decide only whether the undisputed, material facts are sufficient to invoke the duty to assist as a matter of law. Because those facts are sufficient, I would vacate the denial of claim entitlement, remand this case, and instruct the VA to attempt to locate the physical therapy records. HIME v. DVA 2 Section 5103A contains requirements, two of which are at issue in this case, that a claimant must satisfy to invoke the VA’s duty to assist in locating treatment records at a VA healthcare facility. First, a claimant must demonstrate that the records are relevant. 38 U.S.C. § 5103A(b)(1), (c)(2). A single, undisputed fact in Mr. Hime’s case satisfies the relevancy requirement: that the Board concluded in its 1983 opinion that Mr. Hime’s right shoulder should not have caused him significant functional problems. Mr. Hime seeks the physical therapy records because he wants to prove that he did experi-ence functional problems in his shoulder. If Mr. Hime can prove that fact, he anticipates proving that, because of those functional problems, he was directed and effectively forced to use his left arm, almost exclusively, which, in turn, caused his left-hip bursitis. Mr. Hime, in other words, is attempting to rebut a Board finding in a case that he is seeking to reopen. Here, there is no dispute that the records at issue are physical therapy records relating to Mr. Hime’s right shoulder injury, the very injury whose severity was at issue in the Board’s determination. Records are relevant for the purpose of Section 5103A if they relate to the injury for which a claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim. Golz, 590 F.3d at 1321. I would hold, as a matter of law, that treatment records fall within the definition of relevancy if, based on a claimant’s description of them, the records could assist in a claim-ant’s rebutting a prior Board finding in a case that the claimant seeks to reopen. The majority believes that we cannot resolve the rele-vancy requirement as a matter of law because a factual dispute exists as to whether there is a relationship be-tween Mr. Hime’s shoulder and hip injuries. That fact is 3 HIME v. DVA immaterial to the duty to assist in this case. Although Mr. Hime must prove that relationship to prevail on the merits, Section 5103A does not require him to prove his case on the merits to compel the VA to obtain treatment records. The statute only requires him to demonstrate a relationship to the claimed injury and a reasonable possi-bility that the treatment records will help substantiate his claim. Golz, 590 F.3d at 1321. That Mr. Hime is attempting to rebut a prior Board finding in a case that he is seeking to reopen, with records relating to an injury on which that finding turned, indicates that a relation-ship to the claimed injury exists and that the physical therapy records could assist Mr. Hime in substantiating his claim. In addition to the relevancy requirement, a claimant must adequately identify the records sought and furnish information sufficient to locate the records. 38 U.S.C. § 5103A(b)(1), (c)(2). No one disputes the following facts: Mr. Hime filed a statement in support of claim, in which he indicated that he received treatment at the VA Medical Center in Hampton, Virginia. Progress notes indicate that Dr. Palmer referred Mr. Hime for physical therapy on his right shoulder around June 3, 1981, and that Dr. Palmer concluded, on June 22, 1981, that the physical therapy had little effect and discontinued it. The undis-puted facts, therefore, indicate the nature of the treat-ment that Mr. Hime received, the location where he received it, the approximate timeframe when he received it, and the referring doctor’s name. Clearly, such identifi-cation is sufficient for the VA to locate those records. Indeed, it is hard to imagine what more information a claimant would need to provide the VA. The majority contends that Mr. Hime’s identification was inadequate because he did not specifically tell the regional office that he was seeking physical therapy HIME v. DVA 4 records. The statute, however, does not require literal identification. It only requires that a claimant “ade-quately identify” and “furnish[] information sufficient to locate [the] records.” 38 U.S.C. § 5103A(c)(1), (c)(2). The majority cites no authority that equates the statutory requirements to literal identification. Instead, the majority relies on Veterans Court cases, which we are not obligated to follow, and which are dis-tinguishable on their facts. In Loving v. Nicholson, the claimant never contended that additional medical records existed until the Board, apparently on its own initiative, mentioned the possibility that unspecified medical records existed but concluded that the records would not have affected the outcome of the case. 19 Vet. App. 96, 102 (2005). The case record appeared to lack any information shedding light on what the supposedly missing medical records were. See id. Mr. Hime’s submissions, by con-trast, indicate on their face that Mr. Hime participated in physical therapy during a particular timeframe, at a particular facility, and at the direction of a particular doctor. In Canlas v. Nicholson, the Veterans Court was faced with a situation similar to that in Loving. The claimant argued that the VA had a duty to locate what appeared to be her deceased husband’s post-service government employment records because those records might have contained the decedent’s military service number. 21 Vet. App. 312, 315, 317 (2007). The claimant failed to specify, during the pendency of her claim, why that gen-eral category of records could be reasonably expected to disclose the decedent’s service number. Id. The VA had far more specific information before it in Mr. Hime’s case than it did in Canlas. The government suggests in its brief that there is no way of knowing whether there are actually physical therapy records to obtain even if the VA were to search for HIME v. DVA 5 them. Mr. Hime has submitted enough information that the VA should at least investigate. The VA, in fact, sent Mr. Hime a letter after the agency received his application and informed him that the VA was responsible for obtaining relevant records from any federal agency. Mr. Hime was entitled to take the VA at its word. As we have repeatedly stated, “[i]n close or uncertain cases, the VA should be guided by the principles underlying this uniquely pro-claimant system. VA has a duty to assist veterans and is required to ‘fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.’” Golz, 590 F.3d at 1323 (quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)). When in doubt, the VA should attempt to locate the records. If the VA were to locate Mr. Hime’s physical therapy records, I do not suggest that the Board would be obligated to find that those records satisfy the materiality prerequisite to reopening Mr. Hime’s case. I only propose today that we hold that what Mr. Hime has done is sufficient, as a legal matter, to invoke the VA’s duty to assist and provide him another opportunity to argue for the reopening of his claim if the VA finds the records. Accordingly, I respectfully dissent.

Federal Circuit, Non-precedential, Beck v. Shinseki, No. 2011-7039, Medical Treatise, Medical Record Review

Regarding discharge exams and review of medical records, here are two CAVC decision regarding these issues that may be of value in evaluating these issues. Excerpt from decision below: In other words, the Board assigned greater weight to the examiner’s opinion for three reasons: (1) his opinion was based on a review of Beck’s entire medical history; (2) he was the only expert to consider the fact that Beck had no back disability at discharge; and (3) Beck did not receive any treatment for a number of years after discharge. These findings on the credibility and weight of the evidence are factual determinations that the Veterans Court reviews for clear error. 38 U.S.C. § 7261(a)(4). Of the three reasons cited by the Board, the treatise evidence only undermines the third reason because it disclosed that “most people with back pain do not seek medical treatment; back pain is typically recurrent; and the absence of back pain on any given day does not imply normal lumbar function.” A 66. +++++++++++++++++++++++++++++++++++++ Regarding item (1) and (2) above, see this single CAVC Judge application of medical record review, and Nieves-Rodriguez v. Peake, from Smith v. Shinseki, No. 10-0053: A. Weighing Medical Evidence “It is the Board's responsibility to weigh conflicting medical evidence in determining whether service connection is warranted and, in doing so, the Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008). In its analysis, however, the Board may not discount a private medical opinion "solely because the opining physician did not review the claims file." Id. at 304 (emphasis in original). Indeed, [t]he mere statement that one physician did or did not have access to a claims file is of little use in providing adequate reasons or bases for a decision where the Board fails to explain what information in the claims file was important and necessary for a competent and persuasive medical opinion, and why the absence of record review detracts from the probative value of the opinion of a physician. Id. at 303. Nevertheless, [c]ritical pieces of information from a claimant's medical history can lend credence to the opinion of the medical expert who considers them and detract from the medical opinions of experts who do not. Therefore, a recitation of the medical information on which the opinion is based can aid the Board's evaluation of the sufficiency of the opinion. Id. at 304. Ultimately, "[w]hen the Board uses facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon the Board to point out those 6 facts and explain why they were necessary or important in forming the appropriate medical judgment." Id. at 303; see also D'Aries v. Peake, 22 Vet.App. 97, 107 (2008). ++++++++++++++++++++++++++++++++++++++++++++++++++++ Excerpt from decision below: “Regarding the treatises submitted by Beck, the Board noted that a medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on a un-substantiated lay medical opinion. A 38–39 (internal quotations and citation omitted). In Beck’s case, however, because the treatise evidence submitted was not accompanied by the opinion of any medical expert, the Board concluded that the treatise evidence was insufficient to establish the required nexus between his back injury and his time in service.” +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Because medical treatise is being noticed in more and more of the decision which we review, we are presenting other decisions and citations in an attempt to sort of place all this together in one place so that you can better arrive at your own conclusion[s]. “It is true that information from a medical treatise may provide evidence to support a claim for benefits when coupled with the opinion of a medical professional, but to be probative, the information must be specific and conclusive. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (general and inconclusive information is likely to make a causal connection seem plausible, based on the “instinctive inference of a layperson” as opposed to the trained opinion of a medical professional).” ++++++++++++++++++++++++++++++++++ Federal Register: March 30, 2011 (Volume 76, Number 61) [Rules and Regulations] [Page 17544-17548] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr30mr11-6] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 38 CFR Parts 19 and 20 RIN 2900-AN34 Board of Veterans' Appeals: Remand or Referral for Further Action; Notification of Evidence Secured by the Board and Opportunity for Response AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: The Department of Veterans Affairs (VA) is amending the Appeals Regulations of the Board of Veterans' Appeals (Board) to articulate the Board's practice of referring unadjudicated claims to the Agency of Original Jurisdiction (AOJ) for appropriate action, and to describe when it is appropriate for the Board to remand a claim to the AOJ for the limited purpose of issuing a Statement of the Case (SOC). We are also amending the Board's Rules of Practice to outline the procedures the Board must follow when supplementing the record with a recognized medical treatise, and to remove the notice procedures the Board must currently follow when considering law not considered by the AOJ. The purpose of these amendments is to codify existing practices derived from caselaw, enhance efficiency, and provide guidance and clarification. DATES: Effective Date: The final rule is effective April 29, 2011. C. Thurber Procedures We proposed to amend 38 CFR 20.903(b) to clarify the notice procedures the Board must follow when it supplements the record with a recognized medical treatise. One commenter objected to the proposed language which stated that, as part of the notice procedures, the Board will inform appellants that it ``will consider such recognized medical treatise in the adjudication of the appeal.'' The commenter believed that this language does not provide a claimant and his or her representative with the requisite notice regarding the reliance proposed to be placed on the treatise, and thus, does not comply with the notice requirements outlined in Thurber v. Brown, 5 Vet. App. 119 (1993). We respectfully disagree with this comment. As explained in the NPRM, we chose not to use the term ``reliance'' in Sec. 20.903(b) because such language could be misconstrued to suggest that the Board has already reached a preliminary decision on a claim. NPRM, 74 FR at 67152. We do not interpret Thurber as requiring the Board to pre- adjudicate a claim before following the requisite notice procedures. Id. This interpretation is in accordance with other areas of VA adjudicatory procedure that do not require the Secretary to rule on the probative value of evidence prior to reaching a decision on the merits. +++++++++++++++++++++++++++ Hensley, 212 F.3d 1255 (Fed. Cir. 2000) “Finally, we note one further legal error by the Court of Appeals for Veterans Claims, regarding the use of treatise evidence. The Court of Appeals for Veterans Claims was of the view that in submitting the Veterans at Risk report, Mr. Hensley was "attempting to self-diagnose his heart disease," which it deemed impermissible. Hensley, slip op. at 5. However, this conclusion does not reflect what Mr. Hensley actually did. Mr. Hensley already had a diagnosis of heart disease from several doctors. He used the report not to establish the first element of the well grounded complaint, the diagnosis of a current disorder, but rather to support the third element, the nexus between his service and his current disease. A veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his case.8 See also Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that medical treatises can serve as the requisite evidence of nexus). +++++++++++++++++++++++++++++++++++++++++ Single Judge Application, C.F.R. 4.2, Medical Treatise, Hall v. Shinseki, No. 09-1075, July 2011 “The Court concludes that the Board’s statement concerning the medical treatise evidence offered by Mr. Halls was insufficient because it only addressed whether that evidence was independently sufficient to establish a medical nexus between his current headaches and the 1970, in-service motor vehicle accident. It therefore failed to fully comply with 38 C.F.R. § 4.2, which requires the ratings specialist to “interpret reports of examination in light of the whole recorded history. . . .” Specifically, the Board failed to consider how the information contained in the medical treatise evidence affected the adequacy and probative value of the unfavorable October 1998 VA medical opinion, given various contradictions between the information contained in the medical treatise evidence and the medical reasoning employed by the VA medical examiner. Indeed, the parties’ October 2007 joint motion for remand stated that the evidence had been offered by Mr. Halls not to establish medical nexus, but to “rebut [the] negative VA medical opinion,” and that the Board therefore erred in its March 2006 decision by failing to discuss it. If the Board were permitted to out rightly discount medical treatise evidence on the basis that it is does not address the specific facts of a particular case, there would be no value in ever introducing medical treatise evidence, since all such evidence is necessarily “generic” in this sense. Rather, once submitted, medical treatise evidence becomes part of the whole recorded history of a claim against which all medical examination reports must be considered. See 38 C.F.R. § 4.2 (2010). If there is any question as to whether such evidence bears considering as a general matter, as Mr. Halls notes in his reply brief, the Federal Rules of Evidence, specifically Rule 803(18), have specifically carved an exception to the hearsay rule so that such evidence may be admitted for consideration. Although the Court is well aware that the Federal Rules of Evidence do not apply in VA adjudications, the text of Rule 803(18) and the policy considerations that support it are instructive regarding the competency of treatise evidence.” +++++++++++++++++++++++++++++++++++++++ Single Judge Application of Sacks v. West, 11 Vet.App. 314, 316 (1998) in Hibbits v. Shinseki, No. 09-3780 "This Court has recognized that, in general, information contained within a treatise is too abstract to prove the nexus element of a service-connection claim. Sacks v. West, 11 Vet.App. 314, 316 (1998). However, there are exceptions to this general rule; in Sacks, for instance, the Court stated that treatises "can provide important support when combined with an opinion of a medical professional." Id. at 317. Furthermore, Sacks observed that a medical article or treatise, standing 3 alone, may provide sufficient evidence of a causal connection when it "discusses generic relationships with a degree of certainty" so that the causal connection is "based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. As such, it is clear that, in some instances, information contained within a treatise can be probative evidence in evaluating a claim for VA disability benefits, and in those instances its probative value must be weighed against the probative value of other evidence of record. The Court agrees with the appellant's argument that the Board erroneously dismissed the information contained within the treatise without any discussion as to its probative value.” ++++++++++++++++++++++++++++++++++++++++++++++ Single Judge Application, McLaughlin v. Shinseki, No. 10-2130, Medical Treatise “Further, to establish prejudice, Mr. McLaughlin would have to demonstrate that the treatise material was specific to him and could outweigh the specific medical opinions against his claim, and he has not done so. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (holding that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993)(discussing how, in general, medical opinions directed at specific patients are more probative than medical treatises); see also Sanders, supra.” ++++++++++++++++++++++++++++++++++++++++ NEW GROUND IN EVIDENCE REQUIREMENTS “In the recent case of Wallin v. West (1998), the Court decided that a veteran submitted medical-treatise evidence that was deemed plausible evidence of a connection between his service-connected injury and his current disability, which thereby satisfied the veteran's initial burden of filing a well-grounded claim.” ++++++++++++++++++++++++++++++++++++++++ “where medical treatise evidence discusses relationships between conditions with a "degree of certainty," a claimant may use such evidence to meet the requirement for a medical nexus. See Wallin v. West, 11 Vet.App. 509, 514 (1998). On the other hand, if the medical treatise discusses the relationship in more generic terms, the treatise is insufficient to meet the requirement for a medical nexus. +++++++++++++++++++++++++++++++++++++++++ NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ JAMES BECK, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7039 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-3834, Judge Alan G. Lance, Sr. _________________________ Decided: September 9, 2011 _________________________ DARLA J. LILLEY, Lilley Law Firm P.L.L.C., of Dain-gerfield, Texas, for claimant-appellant. ALLISON KIDD-MILLER, Senior Trial Counsel, Com-mercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respon-dent-appellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Direc- BECK v. DVA 2 tor, and KIRK T. MANHARDT, Assistant Director. Of coun-sel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and TRACEY P. WARREN, Attorney, United States Department of Veteran Affairs, of Wash-ington, DC. __________________________ Before NEWMAN, O’MALLEY, and REYNA Circuit Judges PER CURIAM. James Beck (“Beck”) appeals the decision of the United States Court of Appeals for Veterans Claims (the “Veterans Court”) affirming the judgment of the Board of Veterans Appeals (the “Board”). The Veterans Court affirmed the Board’s judgment because it concluded that treatise evidence submitted by Beck was insufficient to establish a nexus between his back injury and his service, or undermine the VA medical examiner’s opinion that Beck’s back injury was not service connected. Beck as-serts this was error because the Veterans Court: (1) refused to consider the treatise evidence without a sup-porting medical opinion; (2) refused to consider the trea-tise evidence for the purpose of impeaching the medical examiner’s opinion; and (3) failed to apply the correct standard for weighing conflicting medical evidence. Because we conclude that this appeal does not invoke our jurisdiction under Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003), or challenge the validity of any statute or regulation, any interpretations thereof, or raise any constitutional controversies, we dismiss for lack of juris-diction. BACKGROUND Beck served on active duty in the U.S. Navy from February 1962 to May 1966. Appendix (“A”) 8. In 1998, Beck filed a claim for service connection for his back BECK v. DVA 3 injury. While Beck’s service records and separation examination make no mention of a back injury, according to Beck, he injured his back in 1963, while serving aboard the U.S.S. Kitty Hawk. The injury occurred when Beck and another sailor were carrying a two-hundred pound amplifier up a stairwell. Beck testified that, while carry-ing the amplifier, “he felt something go in his back.” A 34. Beck indicated that because the injury was painful, he went to sick call. At sick call, however, he did not see a doctor and was only given a cursory examination. He was not prescribed pain medication. During the remainder of his service, Beck did not re-ceive additional treatment for his back injury. Beck’s separation physical, moreover, stated that his spine/other musculoskeletal was normal, and there was no mention of any back injury. After discharge, Beck indicated that he first sought treatment for his back in the late 1960s. Records relating to this treatment, however, do not exist because they were destroyed. Accordingly, the earliest medical records describing his back injury are from the early 1990s.1 The first of these medical records, a May 1990 CT scan, was interpreted by Beck’s doctor as being negative, with vertebrae, facets and facet joints described as unre-markable and no evidence of a herniated disc. In 1992, Beck had another CT scan; his doctor found this scan to be abnormal. As a result of this abnormal scan, Beck 1 Additionally, Beck submitted a copy of a life in-surance application form from March 1979. The form listed the name of a doctor who Beck stated had treated him for back pain during the 1970s. The form did not, however, indicate that Beck suffered from back pain. Indeed, on the form Beck denied having had any illness, surgical procedure, or treatment by a physician in the past three years. BECK v. DVA 4 underwent a laminotomy and disc excision surgery. 2 In January of 2004, Beck also submitted a letter written By Dr. Evans, indicating that he had treated Beck for his back injury since 1998. The letter stated that Beck’s history of back problems began with his injury while in service. Dr. Evans concluded that, because Beck had sustained no other acute injury to his back since his service, it was therefore as likely as not that Beck’s recur-rent back pain was the result of his 1963 injury while in the Navy. On the basis of this record and a letter from Dr. Robert D. Taylor, Beck sought service connection for his back injury. The VA regional office (“RO”) denied his claim. After this initial denial of his claim, Beck submitted two additional pieces of evidence in support of his claim. The first was a statement from his wife, indicating that Beck injured his back in service. The second was letter from Dr. Ira C. Denton, noting that he performed back surgery on Beck in 1992. Submission of this additional evidence2 resulted in an extensive procedural history, which is not relevant to this appeal. This history culminated in December 2004 with the Board remanding the case for, among other things, a medical examination of Beck. Beck’s medical examination occurred in June 2007, and an addendum to the examination was submitted in December 2007. The examiner concluded that Beck’s back injury “is less likely as not (less than 50/50 probability) caused by or a result of non-treated and non-reported back injury in 1963.” A 9. Explaining the rational for this conclusion, the examiner stated: Veteran’s c-file was carefully reviewed. This examiner could not find evidence of any low back complaints between 1962-1966. The separation exam in 5.3.1966 showed normal spine exam. The BECK v. DVA 5 3 According to Beck, the treatise evidence reflected “that most people with back pain do not seek medical treatment; back pain is typically recurrent; and the absence of back pain on any give[n] day does not imply normal lumbar function.” A 66. CT scan in 5.31.1990 was normal. An abnormal CT scan was seen in 11/16/1992 which led to a laminotomy and disc excision. The earliest com-plaints of low back pain was [sic] documented by veteran’s claim that he was seen and treated dur-ing 1972-1973 for low back pain (Dr. Lienke has no medical records). Even if this was the case, veteran complained of low back pain 10 years af-ter the supposed incident. This is too far removed to be connected to the non-documented injury in 1963, which makes veteran’s current low back condition less likely to be related to the non-documented low back injury. Id. In response to this report, before the Board, Beck submitted treatise evidence3 and lay statements in sup-port of his claim. After considering all of the evidence before it, the Board concluded that Beck’s back injury was not service connected. With respect to the conflicting medical evidence, the Board assigned greater weight to the examiner’s opinion than Beck’s private doctors because “it was based on a review of the veteran’s medical history; whereas there is no evidence that the veteran’s private doctors ever re-viewed his service treatment records.” A 38. The Board placed particular importance on the fact that the examiner emphasized that Beck showed no back disability at the time of separation while “none of the private opinions even mentioned the lack of a back disability in service or the lack of any treatment for a number of years after service.” Id. The Board concluded that the “failure to BECK v. DVA 6 address this relevant fact renders the private medical opinions less credible than the VA examiner’s report.” Id. Regarding the treatises submitted by Beck, the Board noted that a medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on a un-substantiated lay medical opinion. A 38–39 (internal quotations and citation omitted). In Beck’s case, however, because the treatise evidence submitted was not accompanied by the opinion of any medical expert, the Board concluded that the treatise evidence was insufficient to establish the required nexus between his back injury and his time in service. Finally, the Board determined that the various letters from Beck’s friends and family had minimal probative value because the letters were not entirely consistent, and they were written 40 years after the relevant events occurred. In light of these conclusions, on October 31, 2008, the Board denied Beck’s claim. Beck received notice of this decision, and he timely appealed to the Veterans Court. Before the Veterans Court, Beck argued that the Board’s rejection of the treatise evidence was contrary to law because treatise evidence can be considered even if it is not supported by a medical opinion. Beck asserted that the Board erred by refusing to consider the treatise evi-dence for two distinct purposes: (1) to establish an etio-logical nexus; and (2) to undermine the credibility of the BECK v. DVA 7 medical examiner’s opinion. In his reply brief, however, Beck abandoned his arguments with respect to establish-ing an etiological nexus. Instead, Beck framed the issue before the Veterans Court as “whether impeachment evidence in the form of treatise evidence must be sup-ported by a medical opinion.” A 65 n.5. After considering the parties’ arguments, the Veterans Court affirmed the Board’s decision. Specifically, the Veterans Court concluded that the Board did not commit legal error by refusing to consider the treatise evidence for the purpose of impeaching the examiner’s opinion. At the outset, the Veterans Court noted that treatise evidence may be invoked to show a nexus in the absence of a supporting medical opinion. The Veterans Court high-lighted that, while the Board seemed to “conflate” the possible situations in which treatise evidence will and will not be considered absent a supporting medical opinion, the Board seemed to mean that Beck’s treatise evidence was too uncertain to meet the requirements for consideration absent a supporting medical opinion. A 12. Impor-tantly, the Veterans Court found that the treatise evidence was “quite general.” A 13. In light of this de-termination, the Veterans Court concluded that it was “unclear how this information would impeach the VA examiner’s competence,” and that Beck had “not met his burden of demonstrating that the Board erred in finding the examiner and his opinion competent.” Id. Beck timely appealed this decision. DISCUSSION I. Our review of Veterans Court decisions is limited by statute. See Yates v. West, 213 F.3d 1372, 1373–74 (Fed. Cir. 2000). By statute, our jurisdiction over appeals from BECK v. DVA 8 the Veterans Court is limited to those appeals that challenge the validity of a decision of the Veterans Court with respect to a rule of law or the validity of any statute or regulation, any interpretations thereof, or that raise any constitutional controversies. See 38 U.S.C. § 7292 (2006). We do not have jurisdiction to hear appeals challenging factual determinations or the application of law to the facts of a particular case, unless there is a constitutional issue present. See § 7292(d)(2). II. On appeal, Beck asserts that the Veterans Court erred by misinterpreting: (1) 38 C.F.R. § 3.159(a); (2) 38 U.S.C. § 5103A and 38 C.F.R. §§ 4.1, 4.2; and (3) the rule of law established in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The government argues that we lack subject matter jurisdiction over this appeal because Beck’s appeal does not actually challenge the Veterans Court’s interpretation of any statute or rule of law. For the reasons discussed below, we agree with the government. Accordingly, we lack subject matter jurisdiction and dismiss this appeal. Beck’s first and second arguments on appeal are based on an incorrect reading of the Veterans Court’s decision. While Beck raises these arguments as separate and distinct, because they present related issues, we will address them together. In essence, these arguments are premised on Beck’s assertion that the Veterans Court refused to consider the treatise evidence because it was not accompanied by a medical expert opinion, and that the Veterans Court found that the treatise evidence could not be used to undermine the credibility of the examiner’s medical opinion. Beck’s characterization of the Veterans Court’s decision is inaccurate. The Veterans Court did not rule that treatise evidence BECK v. DVA 9 can only be considered if it is accompanied by a medical expert opinion. The Veterans Court explicitly stated that medical treatises, standing alone, “may provide sufficient evidence of a causal connection when it discusses generic relationships with a degree of certainty so that the causal connection is based on objective facts rather than on an unsubstantiated lay medical opinion.” A 11 (internal quotations and citation omitted). The Veterans Court further explained that this court has held that a veteran may use treatise evidence to establish a nexus without a supporting medical opinion “in an appropriate case.” Id. (citing Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000)). In light of this precedent, the Veterans Court held that the Board did not err by dismissing the treatise evidence because it was too uncertain to be considered without a supporting medical opinion, i.e., that this was not an “appropriate case” to consider such evidence with-out a supporting opinion. The Veterans Court, moreover, noted that “the treatise evidence submitted discusses back problems and their etiologies generally, supporting the Board’s conclusion that a supporting medical opinion was required.” A 12 (emphasis added). This discussion makes clear that, contrary to Beck’s assertion, the Veterans Court did not rule that treatise evidence must be accompanied by a supporting medical opinion to be considered. Nor did the Veterans Court rule that treatise evidence could only be considered for the purpose of establishing a nexus. In section B of its opinion, the Veterans Court explicitly addressed Beck’s argument that “the Board should have evaluated the credibility of the examiner’s statements given the treatise evidence.” A 12. It found that, in light of the general nature of treatise evidence, it was “unclear how this information would impeach the VA examiner’s competence.” A 13. Furthermore, the Veter- BECK v. DVA 10 ans Court concluded that Beck “had not met his burden in demonstrating that the Board erred in finding the exam-iner and his opinion competent” because the treatise evidence was insufficient to undermine the Board’s con-clusion. Id. Additionally, the Veterans Court did not rule that the Board was only required to consider treatise evidence for the purpose of impeachment if the evidence was supported by a medical opinion or independently supported a nexus. As the above discussion demonstrates, Beck’s first and second arguments are premised on an incorrect reading of the Veterans Court’s opinion. The Veterans Court never made the rulings that Beck asserts are statutory misinterpretations. Because the Veterans Court did not make any of these rulings, this appeal does not involve a challenge to an interpretation relied upon by the Veterans Court. Beck’s first and second arguments, therefore, do not present an issue over which we have subject matter jurisdiction. Turning to Beck’s last argument that we have rule of law subject matter jurisdiction pursuant to Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003), we conclude that we do not posses this type of jurisdiction in this case. In Morgan, we held that in a case . . . in which the decision below regarding a governing rule of law would have been altered by adopting the position being urged, this court has jurisdiction to entertain the matter, even though the issue underlying the stated position was not “relied on” by the Veterans Court. 327 F.3d at 1363. On the basis of Morgan, Beck asserts that we have jurisdiction over this appeal because Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), established a rule of law that the Veterans Court failed to address and BECK v. DVA 11 4 Expert testimony may be received from a suitably qualified expert under the following conditions: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. See Fed. R. Evid. 702. that, if it had adopted his position, the outcome of the decision below would have been altered. In Nieves-Rodriguez, the Veterans Court stated that the three factors discussed in 702 of the Federal Rules of Evidence4 are important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence . . . . Therefore, where the Board favors one medical opinion over another, the Court will review the Board’s decision to determine whether these criteria have been met or properly applied. 22 Vet. App. at 302. Beck asserts that he urged the Veterans Court to find that the Board erred by failing to evaluate the sufficiency of the examiner’s report as required by Nieves-Rodriguez. Appellant’s Br. at 16. The Veterans Court did not mention the Nieves-Rodriguez factors when it evaluated the Board’s decision. On the basis of this omission, Beck asserts that, because “the decision below would have been altered by the [Veterans Court] adopting the position urged by Appellant,” we have rule of law jurisdiction over this case. In response, the government argues that we do not have subject matter jurisdiction because Nieves-Rodriguez did not establish a rule of law within the meaning of Morgan, and even if it did, Beck has not established that the outcome below would have been different if the Veter- BECK v. DVA 12 ans Court had adopted his position. Even assuming that Nieves-Rodriguez established a rule of law within the meaning of Morgan, an issue upon which we express no opinion, we still do not have subject matter jurisdiction over Beck’s appeal. Beck’s argument fails because he has not established that the outcome below would have been different if the Veterans Court adopted his position. With respect to the Board’s decision to assign greater weight to the examiner’s opinion, the Veterans Court noted that the Board reached this decision “because [examiner’s opinion] was based on a review of the veteran’s medical history; whereas there is no evidence that the veteran’s private doctors ever reviewed his service treatment records.” A 38. The Board noted, moreover, that “[w]hile the showing of no back disability at the time of separation was of particular note to the VA examiner, none of the private opinions even mentioned the lack of a back disability in service or the lack of any treatment for a number of years after service.” Id. In other words, the Board assigned greater weight to the examiner’s opinion for three reasons: (1) his opinion was based on a review of Beck’s entire medical history; (2) he was the only expert to consider the fact that Beck had no back disability at discharge; and (3) Beck did not receive any treatment for a number of years after discharge. These findings on the credibility and weight of the evidence are factual determinations that the Veterans Court reviews for clear error. 38 U.S.C. § 7261(a)(4). Of the three reasons cited by the Board, the treatise evidence only undermines the third reason because it disclosed that “most people with back pain do not seek medical treatment; back pain is typically recurrent; and the absence of back pain on any given day does not imply normal lumbar function.” A 66. In light of this fact, Beck BECK v. DVA 13 cannot establish that if the Veterans Court had applied the Nieves-Rodriguez factors the outcome would have been different because, even if the treatise evidence was considered as part of this inquiry, the Board’s factual findings were still supported by two independent reasons; i.e., the factual findings were not clearly erroneous. Beck cannot, therefore, meet the requirements of Morgan. For the reasons discussed above, we lack jurisdiction to hear this appeal because it does not involve the interpretation of a statute or rule of law jurisdiction under Morgan. COSTS Each party shall bear its own costs. DISMISSED