Case: 19-2207   Document: 31     Page: 1   Filed: 04/22/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                CECIL L. CARPENTER,
                  Claimant-Appellant

                            v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                       2019-2207
                 ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-2404, Judge Amanda L. Mere-
 dith.
                 ______________________

                 Decided: April 22, 2020
                 ______________________

     PAUL MICHAEL SCHOENHARD, McDermott, Will & Em-
 ery LLP, Washington, DC, for claimant-appellant. Also
 represented by IAN BARNETT BROOKS.

     DAVID PEHLKE, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent-appellee. Also represented by
 JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD, ROBERT
 EDWARD KIRSCHMAN, JR.; MARTIE ADELMAN, Y. KEN LEE,
Case: 19-2207     Document: 31     Page: 2    Filed: 04/22/2020




 2                                       CARPENTER   v. WILKIE



 Office of General Counsel, United States Department of
 Veterans Affairs, Washington, DC.
                  ______________________

     Before LOURIE, WALLACH, and HUGHES, Circuit Judges.
 LOURIE, Circuit Judge.
     Cecil Carpenter appeals from a decision of the Court of
 Appeals for Veterans Claims (“the Veterans Court”) deny-
 ing service connection. See Carpenter v. Wilkie, No. 18-
 2404, 2019 WL 2305860 (Vet. App. May 31, 2019) (“Deci-
 sion”). Because Carpenter raises only factual issues over
 which we lack jurisdiction, we dismiss the appeal.
                        BACKGROUND
     Carpenter served on active duty in the U.S. Army from
 1984 to 1987. Carpenter’s service records reveal that he
 experienced numerous injuries during his service, includ-
 ing complaints of lower back pain, hip pain after being
 struck by a vehicle, a knee injury suffered during a softball
 game, and a back injury after falling while waxing a floor.
 His separation examination report documents no knee or
 spine conditions, symptoms, or other significant injuries.
 In the months after his separation, Carpenter complained
 of neck and knee pain, but VA examinations found his
 head, neck, and knees to be normal.
     In 2007, Carpenter filed a claim for benefits for a right
 knee condition, which was denied. In 2010, Carpenter filed
 a second claim for benefits for cervical spondylosis and
 right knee patella chondromalacia. Carpenter also filed a
 report from a private orthopedic surgeon, Dr. Allen, con-
 cluding that there is a “probable association” between Car-
 penter’s present conditions and the injuries suffered during
 his service. The Regional Office denied Carpenter’s claim,
 and he appealed to the Board of Veterans’ Appeals (“the
 Board”).
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 CARPENTER   v. WILKIE                                      3



     At a Board hearing, Carpenter testified that he told his
 examiner about his neck, back, and knee injuries during
 his separation examination, but the examiner failed to note
 them. He also testified that he separated his patella dur-
 ing the softball game in which he injured his knee and had
 not suffered any post-service knee injuries. Additionally,
 Carpenter’s wife testified that he had experienced knee,
 back, and neck pain during the entire 26 years for which
 she had known him.
     The Board reopened Carpenter’s claim and ordered a
 VA examination. The VA examiner determined that Car-
 penter’s present conditions were not related to his in-ser-
 vice injuries, concluding that it is most likely that
 Carpenter’s conditions, identified many years after his sep-
 aration, were the result of physical stress since his separa-
 tion. The Board denied Carpenter’s claims, and he
 appealed to the Veterans Court.
     The Veterans Court affirmed the Board’s decision. The
 court determined that the Board did not err in crediting the
 results of the VA examination over the statements of
 Dr. Allen. Decision at *4. Specifically, the court held that
 the Board did not err in determining that Dr. Allen’s opin-
 ions lack probative value because his opinions were based
 on Carpenter’s statements of continuity of neck and knee
 pain, which the Board determined were inconsistent with
 other evidence of record. Id. Carpenter appealed.
                         DISCUSSION
     Our jurisdiction to review decisions of the Veterans
 Court is limited. We may review a decision of the Veterans
 Court with respect to a rule of law or interpretation of a
 statute or regulation relied on by the Veterans Court in its
 decision. 38 U.S.C. § 7292(a). However, except with re-
 spect to constitutional issues, we may not review chal-
 lenges to factual determinations or challenges to the
 application of a law or regulation to the facts of a case.
 § 7292(d)(2).
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 4                                      CARPENTER   v. WILKIE



      On appeal, Carpenter argues that the Veterans Court
 erred in denying service connection for his knee and spine
 conditions. Specifically, Carpenter argues that the court
 failed to give him the benefit of the doubt as required by
 38 U.S.C. § 5107(b). Carpenter also argues that the court
 failed to credit the opinion of Dr. Allen and consequently
 imposed an improperly heightened burden on Carpenter to
 demonstrate continuity between his in-service injuries and
 his present conditions.
     The government responds that we lack jurisdiction to
 review the Veterans Court’s decision because Carpenter
 raises only factual issues on appeal—specifically, the
 Board’s credibility determinations and its weighing of the
 evidence in denying service connection.
     We agree with the government that Carpenter raises
 only factual challenges and we therefore lack jurisdiction
 over this appeal. Although Carpenter argues that the Vet-
 erans Court committed legal error by failing to give Car-
 penter the benefit of the doubt, § 5107(b) applies only when
 the evidence is approximately in equipoise. See Ortiz v.
 Principi, 274 F.3d 1361, 1364–65 (Fed. Cir. 2001). Here,
 the Board did not determine that the evidence was approx-
 imately equal but rather that “the preponderance of evi-
 dence is against the claim.” J.A. 30. Accordingly, the
 benefit-of-the-doubt rule was not engaged, and Carpenter’s
 argument amounts to a request for this court to reweigh
 the evidence, which we lack jurisdiction to do.
      Carpenter similarly attempts to cast the Board’s credi-
 bility determinations as a legal error, arguing that the
 Board improperly discounted Dr. Allen’s report solely be-
 cause it was based on statements made by Carpenter.
 However, as the Veterans Court observed, the Board did
 not discount Dr. Allen’s opinion solely because it was based
 on Carpenter’s statements as Carpenter contends, but ra-
 ther because Carpenter’s statements themselves were con-
 tradicted by other evidence of record. Decision at *4. It is
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 CARPENTER   v. WILKIE                                     5



 the appropriate role of the Board, as factfinder, to deter-
 mine the credibility of evidence. See Buchanan v. Nichol-
 son, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Here, the Board
 performed this role in determining that Carpenter’s state-
 ments were contradicted by other evidence and discounting
 Dr. Allen’s opinion accordingly, and its “credibility deter-
 mination is a question of fact beyond this court’s jurisdic-
 tion.” Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir.
 2010).
                         CONCLUSION
     We have considered Carpenter’s remaining arguments
 but find them unpersuasive. For the foregoing reasons, we
 dismiss the appeal for lack of jurisdiction.
                         DISMISSED
