Case: 12-7143    Document: 11     Page: 1   Filed: 12/26/2012




           NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                __________________________

                MELVIN H. ALEXANDER,
                 Claimant-Appellant,

                             v.
  ERIC K. SHINSEKI, SECRETARY OF VETERANS
                   AFFAIRS,
               Respondent-Appellee.
                __________________________

                        2012-7143
                __________________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in case no. 10-4045, Judge Robert N.
 Davis.

   Before NEWMAN, PROST and WALLACH, Circuit Judges.
 PER CURIAM.

                        ORDER

     Melvin Alexander appeals from a decision of the United
 States Court of Appeals for Veterans Claims (Veterans
 Court) upholding the decision of the Board of Veterans’
 Appeals (Board) denying him entitlement to Department of
 Veterans Affairs (DVA) disability compensation benefits for
 a heart condition. We dismiss.
Case: 12-7143    Document: 11     Page: 2    Filed: 12/26/2012




 MELVIN ALEXANDER   v. SHINSEKI                            2

     Mr. Alexander served on active duty in the U.S. Army
 from January 1972 to January 1974. While in service, he
 reported chest pains, but no condition was diagnosed. His
 separation examination in 1973 showed that his heart was
 normal.

     In 2001, Mr. Alexander was treated for a prominent
 heart murmur, and hospitalized with chest pains. He
 subsequently filed a claim seeking DVA disability compen-
 sation benefits for a heart condition. On Mr. Alexander’s
 behalf, his private physician submitted a written statement
 indicating that he had treated Mr. Alexander for chest
 pains, which were highly suggestive of angina pectoris and
 likely related to the pains Mr. Alexander reported during
 service. The regional office (RO) of the DVA denied the
 claim, and Mr. Alexander appealed to the Board.

     In a 2007 decision, the Board remanded the case to the
 RO for further development pursuant to the DVA’s statu-
 tory duty to assist him in presenting his claim. See 38
 C.F.R. 3.159(a)(1). Along with other measures, the Board
 directed the RO to obtain a “VA medical examination with
 an appropriate physician (e.g., a cardiologist),” who was to
 comment on the incidents of chest pain in service and the
 statement of Mr. Alexander’s private physician.

     On remand, a nurse practitioner reviewed Mr. Alexan-
 der’s records, conducted an examination, and issued a
 report that was reviewed and co-signed by a physician.
 That report concluded that a relationship between Mr.
 Alexander’s current condition and his service was unlikely.
 Based on that report and a review of the record, the RO
 again denied service connection. Mr. Alexander then again
 appealed to the Board, which upheld the RO’s determina-
 tion. The Board noted that while the 2007 remand order
 indicated that Mr. Alexander was to be scheduled for an
 examination with an appropriate physician, the nurse
 practitioner that conducted the examination was compe-
Case: 12-7143     Document: 11     Page: 3    Filed: 12/26/2012




 3                             MELVIN ALEXANDER   v. SHINSEKI

 tent, and thus the exam was in sufficient compliance with
 the remand order and governing regulations.

     Mr. Alexander then appealed to the Veterans Court.
 Like the Board, the Veterans Court rejected Mr. Alexan-
 der’s argument that the RO had failed to comply with the
 Board’s 1997 remand instructions. The Court noted that
 while the remand order listed a cardiologist as an exam-
 ple of an appropriate physician, the order did not specify
 that a cardiologist had to conduct the exam or express a
 medical opinion. The court went on to explain that while
 the examination did not strictly comply with the terms of
 the 2007 remand order, the remand proceedings were in
 substantial compliance because the nurse practitioner
 was sufficiently competent and trained to provide a
 medical examination that met the regulatory require-
 ments. The Veterans Court therefore affirmed the deci-
 sion of the Board, and Mr. Alexander filed a timely appeal
 from that decision with this court.

     Our jurisdiction to review decisions of the Veterans
 Court is limited by statute. Under 38 U.S.C. § 7292(a),
 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 may interpret constitutional and statu-
 tory provisions as needed for resolution of the matter. 38
 U.S.C. § 7292(c). In contrast, except where an appeal
 presents a constitutional question, we lack jurisdiction
 over challenges to factual determinations or laws or
 regulations as applied to the particular case. 38 U.S.C.
 § 7292(d)(2).

     Mr. Alexander’s informal brief indicates that he does
 not seek to challenge a constitutional issue. Nor does he
 mention a rule of law or a statutory or regulatory inter-
 pretation of which he seeks review. Instead, Mr. Alexan-
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 MELVIN ALEXANDER       v. SHINSEKI                            4

 der’s brief merely asks the court to look into his case more
 closely than the Veterans Court. In light of Mr. Alexan-
 der’s brief, we must reach the conclusion that he has not
 demonstrated that this court has jurisdiction over his
 case, and that we must dismiss.

     We note that even if the court were to liberally read
 Mr. Alexander’s brief as challenging whether the nurse
 practitioner conducted medical examination was in com-
 pliance with the Board’s remand instructions, the essence
 of that argument would simply be a disagreement over a
 factual matter, as to which this court does not have
 jurisdiction. See Dyment v. Principi, 287 F.3d 1377, 1381
 (Fed. Cir. 2002) (holding that the claimant’s disagreement
 with whether a medical expert substantially complied
 with the Board’s remand order was a factual matter
 outside of this court’s review).

       Accordingly,

       IT IS ORDERED THAT:

       (1) The appeal is dismissed.

       (2) Each side shall bear its own costs.

                                        FOR THE COURT

                                        /s/ Jan Horbaly
                                        Jan Horbaly
                                        Clerk


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