                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2008-7099

                                 GLENDA BROOME,

                                                            Claimant-Appellant,

                                          v.

                JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


      Glenda Broome, of Easley, South Carolina, pro se.

       Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Gregory G. Katsas, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Harold D. Lester, Jr., Assistant Director. Of counsel on the
brief were David J. Barrans, Deputy Assistant General Counsel; and Amy M. McAtee,
Staff Attorney, United States Department of Veterans Affairs, Office of the General
Counsel, 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                     NOTE: This disposition is nonprecedential.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
                                     2008-7099


                                GLENDA BROOME,

                                                        Claimant-Appellant,

                                         v.

               JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,

                                                        Respondent-Appellee.



Appeal from the United States Court of Appeals for Veterans Claims in 06-1261, Judge
Robert N. Davis.

                         __________________________

                          DECIDED: September 4, 2008
                          __________________________


Before MICHEL, Chief Judge, MAYER, Circuit Judge and STEARNS, District Judge*.

PER CURIAM.

      Glenda M. Broome appeals a portion of the judgment of the Court of Appeals for

Veterans Claims, which affirmed the Board of Veterans’ Appeals decision denying her

claim for service-connection for the cause of her husband’s death, and therefore her

claim for dependency and indemnity compensation. Broome v. Peake, No. 06-1261

_____________________

      * The Honorable Richard G. Stearns, District Judge, United States District Court
of Massachusetts, sitting by designation.
(Vet. App. Mar. 3, 2008). We affirm-in-part and dismiss-in-part.

       The veteran died on June 1, 2001, of intracerebral hemorrhage due to

spontaneous rupture of a cerebral vessel. Prior to his death, service connection was

established for degenerative arthritis and multiple sebaceous cysts. He was granted

total disability based on individual unemployability due to his service-connected

disabilities effective January 1, 2000.

       Broome’s assertion of clear and unmistakable error (“CUE”) on the board’s failure

to grant claims by the veteran for 100 percent disability prior to January 1, 2000, is not

ripe for review because she has yet to file such a claim with the VA regional office

(“RO”). Each claim of CUE underlying a request for revision of a previous RO decision

must be presented to and adjudicated by the RO in the first instance. Similarly, her new

claim of service-connection for Agent Orange exposure first must be presented to the

RO for adjudication. Because those issues were raised for the first time on appeal, we

affirm the Veterans Court’s decision not to address them.

       Broome also claims that the board and the Veterans Court erred in concluding

that the veteran’s intracerebral hemorrhage was not a result of his service-connected

degenerative arthritis. We see no legal error in the Veterans Court’s conclusion that the

veteran’s service-connected disabilities were not causally connected to his death. See

38 U.S.C. § 1310; 38 C.F.R. § 3.312. Credibility of expert testimony is a question of

fact, and it was not inappropriate for the board to weigh the expert medical opinions on

record for their probative values in determining whether the veteran’s cause of death

was service-connected. Contrary to Broome’s contention, the board was not required to

consult with medical experts outside of the Department of Veterans Affairs (“DVA”).




2008-7099                                   2
Indeed, it is up to the board’s judgment to decide whether a case is of such medical

complexity or controversy as to warrant an advisory medical opinion from one or more

medical experts who are not available within the DVA. 38 U.S.C. § 7109; 38 C.F.R. §

20.901(d).   Even if the board concludes that such an advisory medical opinion is

warranted, it has some discretion to decide whether to seek one. 38 U.S.C. § 7109(a)

(stating that, in such a case, “the Board may secure an advisory medical opinion from

one or more independent medical experts who are not employees of the Department”)

(emphasis added).

       We have considered Broome’s remaining arguments, and conclude that they

each (1) challenge a factual conclusion reached by the board or the Veterans Court,

and (2) fail to raise a constitutional issue. Because we lack authority to review either “a

challenge to a factual determination” or “a challenge to a law or regulation as applied to

the facts of a particular case” absent a constitutional issue, 38 U.S.C. § 7292(d)(2), we

dismiss the remainder of her appeal.




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