                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2008-7109

                               BILLY L. NEWSOME,

                                                          Claimant-Appellant,

                                         v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                          Respondent-Appellee.


      Billy L. Newsome, of The Colony, Texas, pro se.

       Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were Jeanne E. Davidson, Director, and Brian M.
Simkin, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy
Assistant General Counsel, and Tracey P. Warren, Attorney, Office of the General
Counsel, United States Department of Veterans Affairs, Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Bruce E. Kasold
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2008-7109

                                 BILLY L. NEWSOME,

                                                      Claimant-Appellant,

                                           v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                      Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 06-2652,
Judge Bruce E. Kasold.


                           __________________________

                             DECIDED: February 9, 2009
                           __________________________


Before MICHEL, Chief Judge, NEWMAN and GAJARSA, Circuit Judges.

PER CURIAM.

      Billy L. Newsome appeals from a decision of the Court of Appeals for Veterans

Claims (“Veterans Court”), Newsome v. Peake, No. 06-2652 (Vet. App. Apr. 9, 2008),

affirming a decision of the Board of Veterans’ Appeals (“Board”) that denied entitlement

to service connection for hepatitis C on a direct basis and a skin disorder, impotence

and a prostate disorder, all claimed as due to exposure to Agent Orange. For the

reasons explained below, we affirm.
                                     BACKGROUND

       Mr. Newsome served on active duty from March 1970 to March 1972 with service

in Vietnam from August 1970 to August 1971. During his service, he received treatment

for venereal warts, penile ulcers, and chancroid. In 2002, Mr. Newsome was diagnosed

with hepatitis C. In a subsequent examination by the Department of Veterans Affairs

(“VA”), a medical examiner found no evidence that the disease was acquired during his

service. In addition, Mr. Newsome was diagnosed with eczema, vitiligo, and dermatitis

(“skin disorder”), all of which were found to be related to his hepatitis C rather than to

Agent Orange exposure.        Mr. Newsome has also been diagnosed with chronic

prostatitis (“prostate disorder”) and erectile dysfunction, both of which a VA medical

examiner found were unlikely related to Agent Orange exposure. Based on the medical

evidence that found no likely relationship between Mr. Newsome’s ailments and his

service,   the   Board   denied   Mr.   Newsome’s     request   for   service   connection.

Mr. Newsome appealed the Board’s decision to the Veterans Court, which affirmed.

Mr. Newsome then timely filed this appeal.

                                        DISCUSSION

       The scope of our review of a Veterans Court decision is limited by statute.

See 38 U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans

Court with respect to the validity of “any statute or regulation . . . or any interpretation

thereof (other than a determination as to a factual matter) that was relied on by the

[Veterans] Court in making the decision.” We must affirm a Veterans Court decision

unless it is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional right, power, privilege, or immunity;




2008-7109                                    2
(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a

statutory right; or (D) without observance of procedure required by law.”                 Id.

§ 7292(d)(1). Further, absent a constitutional issue, we may not review challenges to

factual determinations or challenges to the application of a law or regulation to facts.

Id. § 7292(d)(2). See also McGee v. Peake, 511 F.3d 1352, 1355 (Fed. Cir. 2008).

       In order for a veteran to establish a service connection, the veteran must show

that an injury or disease resulting in disability was incurred coincident with service in the

Armed Forces, or that a preexisting condition was aggravated as a result of service, or

through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2008). In

limited circumstances, service connection may be presumed in the absence of evidence

of the disease during the period of service. See 38 C.F.R. § 3.307(a). For example, the

diseases for which service connection may be presumed are, in turn, listed. See, e.g.,

38 C.F.R. § 3.309(a) (chronic diseases) and (e) (diseases associated with exposure to

certain herbicide agents). See also Darby v. Brown, 10 Vet. App. 243, 246 (Vet. App.

1997) (holding that a veteran exposed to certain herbicide agents who suffers from a

disease listed under 38 C.F.R. § 3.309(e) is entitled to a presumption that the disease is

service connected).

       Mr. Newsome argues that the Veterans Court erred in affirming the Board’s

decision denying him service connection for hepatitis C.              To the extent that

Mr. Newsome argues that the decision was erroneous as a matter of law, we disagree.

Pursuant to 38 C.F.R. § 3.102, the Board may not award benefits when the award

would be based upon pure speculation. In this case, the Board examined evidence

from a VA physician, who found that Mr. Newsome could have contracted the disease




2008-7109                                    3
through sexual activity or post-service drug use. For this reason, the Board found that

to find a service connection would be speculative. The Board’s decision was affirmed

by the Veterans Court. Finding no legal error, we affirm the decision of the Veterans

Court.

         Mr. Newsome further argues that the Veterans Court erred under 38 C.F.R.

§ 3.301(c)(1) by not granting his claim for disability compensation for hepatitis C. Under

§ 3.301(c)(1), venereal diseases are not regarded as the result of willful misconduct for

the purpose of determining whether service connection is warranted. The Veterans

Court did not cite § 3.301 because it is inapplicable to the present case. We find no

legal error in this determination, therefore we affirm the Veterans Court on this issue.

         Mr. Newsome also argues that the Veterans Court erred in affirming the Board’s

decision that his skin disorder and erectile dysfunction do not entitle him to service

connection. Under 38 C.F.R. § 3.303(a), a veteran must show that a disease resulting

in disability was incurred coincident with service in the Armed Forces, that a preexisting

condition was aggravated as a result of service, or through the application of statutory

presumptions. See also Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008). The

VA examiner found no connection between Mr. Newsome’s in-service ailments and his

current ailments, thus failing to meet the requirements of § 3.303.      In addition, these

specific ailments are not on the list of conditions under 38 C.F.R. § 3.309 that are

afforded a presumption of service connection.          Therefore, we conclude that the

Veterans Court correctly affirmed the Board’s decision.

          Mr. Newsome argues that his prostate ailment should be presumptively service

connected as a matter of law pursuant to 38 C.F.R. § 3.309(e). We disagree. Under



2008-7109                                    4
§ 3.309(e), prostate cancer entitles Vietnam veterans to a presumption of service

connection. The Board, however, found that prostatitis is not a disorder covered by

§ 3.309(e). An agency’s interpretation of its own regulation is controlling unless it is

“plainly erroneous or inconsistent with the regulation.” See, e.g., Auer v. Robbins, 519

US 452, 461 (1997). Because the regulation is explicit as to prostate cancer and does

not allow for a presumption of service connection for any other type of prostate disorder,

the Board’s interpretation of the regulation is not plainly erroneous or inconsistent with

the regulation.


         Mr. Newsome also alleges a violation of his constitutional rights, but fails to

discuss any specific constitutional rights that were violated.              Simply putting a

constitutional label on a statutory or regulatory claim does not confer upon us

jurisdiction that we otherwise lack. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir.

1999) (explaining that merely referring to a claim as constitutional without having a

constitutional claim does not give this court jurisdiction to disturb findings of fact).


         We have considered Mr. Newsome’s remaining arguments and find them without

merit.


         For the foregoing reasons, we affirm the decision of the Veterans Court.

         No costs.




2008-7109                                      5
