                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2009-7046


                               LEROY J. RODRIGUE,

                                                     Claimant-Appellant,

                                          v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                     Respondent-Appellee.



      Virginia A. Girard-Brady, ABS Legal Advocates, P.A., of Lawrence, Kansas,
argued for claimant-appellant.

       Steven Gillingham, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. On the brief were Tony West, Assistant Attorney General,
Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Tara K. Hogan,
Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General
Counsel, and Michael G. Daugherty, Attorney, Office of the General Counsel, United
States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Robert N. Davis
                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                     2009-7046


                               LEROY J. RODRIGUE,

                                                    Claimant-Appellant,
                                         v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                    Respondent-Appellee.




Appeal from the United States Court of Appeals for Veterans Claims in 06-2630, Judge
Robert N. Davis

                             ______________________

                            DECIDED: February 4, 2010
                            ______________________


Before GAJARSA, PLAGER, and LINN, Circuit Judges.

GAJARSA, Circuit Judge.

      Leroy J. Rodrigue appeals the decision of the United States Court of Appeals for

Veterans Claims (“Veterans Court”) affirming a Board of Veterans Appeals (“Board”)

decision finding that the Department of Veterans Affairs (“VA”) has no obligation to

provide a medical opinion under 38 U.S.C. § 5103A(d) when the appellant has not

satisfied even the low threshold for proof of medical nexus that would mandate a VA

medical examination. Rodrigue v. Peake, No. 06-2630, 2008 WL 5111539, at * 3 (Vet.
  App. Nov. 20, 2008). Because Mr. Rodrigue is appealing factual determinations whose

  review is not within this court’s jurisdiction, the appeal is dismissed.

                                        BACKGROUND

         Leroy J. Rodrigue served on active duty in the U.S. Air Force from 1963 to 1967.

  He was stationed at the Ubon Royal Thai Airforce Base in Thailand from June 1966 to

  February 1967. Mr. Rodrigue contends that he is entitled to service connection for

  myasthenia gravis and/or sleep apnea on the basis that he was exposed to Agent

  Orange. While there is presumption of exposure and service connection for veterans

  who served in Vietnam for certain diseases, the Board found that Mr. Rodrigue was not

  entitled to such a presumption because he was stationed in Thailand and myasthenia

  gravis and sleep apnea are not included in the statutory list of diseases. See 38 U.S.C.

  § 1116(a); 38 C.F.R. § 3.309(e).

         In order to establish service connection on the basis of Agent Orange exposure,

  Mr. Rodrigue was required to provide evidence of direct causation between Agent

  Orange and myasthenia gravis and/or sleep apnea. See Shedden v. Principi, 381 F.3d

  1163, 1167 (Fed. Cir. 2004). While there is no dispute that Mr. Rodrigue currently

  suffers from myasthenia gravis and is diagnosed with sleep apnea, the Board found that

  there was no medical or scientific evidence to support causation. Mr. Rodrigue’s claim

  file “contain[ed] a single note from J.C., M.D., in which Dr. C. opined that

  [Mr. Rodrigue’s] autoimmune myasthenia gravis could be the result of toxic or chemical

  exposure.” In denying the claim, the Board found the letter from Dr. C. unpersuasive

  because (1) the nature of the toxic chemicals was not identified; (2) Mr. Rodrigue has

  not been shown to have been exposed to toxic chemicals including Agent Orange while



2009-7046                                    2
  in service; and (3) Dr. C.’s letter merely speculated that the disorder could be the result

  of toxic or chemical exposure. Likewise, the Board also denied service connection for

  sleep apnea based upon a total lack of proof of direct causation because the record did

  not contain a medical nexus opinion linking Mr. Rodrigue’s sleep apnea to alleged

  Agent Orange exposure. The Veterans Court affirmed, holding that it was unable to

  conclude that the Board erred in its findings that neither myasthenia gravis nor sleep

  apnea was “shown to be causally or etiologically related to service or exposure to an

  herbicide agent.” Rodrigue, 2008 WL 51115239 at *3.

         On appeal to the Veterans Court, Mr. Rodrigue also argued that the Board erred

  in denying his request for a VA medical nexus examination under § 5103A(d) because

  he had submitted lay evidence including numerous articles derived from medical books

  and the internet regarding the causes, incidences, and risk factors for myasthenia gravis

  in support of his claim. Under § 5103A(d) (duty to assist claimants), the Secretary must

  provide a medical opinion when the evidence of record taking into consideration all

  information and lay or medical evidence (including statements of the claimant):

                (A) contains competent evidence that the claimant has a current
                disability, or persistent or recurrent symptoms of disability; and
                (B) indicates that the disability or symptoms may be associated with
                the claimant’s active military, naval, or air service; but
                (C) does not contain sufficient medical evidence for the Secretary
                to make a decision on the claim.

  38 U.S.C. § 5103A(d)(2). In referring to the evidentiary standard under § 5103A(d)(2)

  for determining whether a disability may be associated with service for purposes of

  triggering the VA’s duty to assist by providing a medical examination, the Veterans

  Court acknowledged that evidence of such linkage had a “low threshold.”            Yet the

  Veterans Court concluded that Mr. Rodrigue’s internet treatise evidence was tentative,


2009-7046                                  3
  insufficient to establish even a credible level of causality, and inadequate to show that

  an association was even plausible, and as a result, not sufficient to trigger

  Mr. Rodrigue’s entitlement to a VA medical examination under § 5103A(d).

  Mr. Rodrigue appeals the denial of the medical nexus examination.

                                        DISCUSSION

         Our jurisdiction to review decisions of the Veterans Court is limited by statute.

  Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002). Under 38 U.S.C. § 7292(a)

  (2006), this court has jurisdiction over rules of law or the validity of any statute or

  regulation, or an interpretation thereof relied on by the Veterans Court in its decision.

  This court may also entertain challenges to the validity of a statute or regulation, and to

  interpret constitutional and statutory provisions as needed for resolution of the matter.

  38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitutional

  question, this court lacks jurisdiction over challenges to factual determinations or laws

  or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2).

         The issue presented here is within the latter proscribed categories listed in

  § 7292(d)(2).   On appeal, Mr. Rodrigue attempts to frame the issue as involving

  statutory interpretation.   He asserts that the Veterans Court imposed a higher

  evidentiary standard than necessary under § 5103A(d) by requiring him “to submit

  medical evidence establishing that the claimed disability is actually associated with his

  military service, and therefore evidence which actually serves to substantiate the claim,”

  as a condition precedent to trigger the VA’s duty to assist with providing a medical

  examination. Mr. Rodrigue incorrectly attributes the Veterans Court’s discussion of the

  insufficiency of the evidence supporting the medical nexus required for service



2009-7046                                  4
  connection to his argument that he was entitled to a medical examination. However,

  Mr. Rodrigue’s arguments regarding how the Veterans Court weighed the evidence and

  facts of his case to arrive at its determination are outside of this court’s limited

  jurisdiction.

         The Veterans Court made a factual finding that Mr. Rodrigue had “not satisfied

  even the low threshold for proof of nexus that would mandate a VA medical

  examination” under § 5103A(d). Our jurisdiction precludes us from reviewing factual

  findings or even the application of law to facts. Because Mr. Rodrigue challenges a

  factual determination, or at most the application of law to the facts, we do not have

  jurisdiction to review these findings. Accordingly, the appeal is dismissed.

         No Costs.




2009-7046                                  5
