       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               NORMA E. HORNBEAK,
                 Claimant-Appellant

                           v.

     ROBERT A. MCDONALD, SECRETARY OF
            VETERANS AFFAIRS,
               Respondent-Appellee
             ______________________

                      2016-1682
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2156, Judge Alan G. Lance, Sr.
                ______________________

               Decided: January 17, 2017
                ______________________

   SANDRA E. BOOTH, Law Office of Sandra E. Booth, Co-
lumbus, OH, argued for claimant-appellant.

    MELISSA BAKER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.,
BENJAMIN C. MIZER; JONATHAN KRISCH, Y. KEN LEE, Office
of General Counsel, United States Department of Veter-
ans Affairs, Washington, DC.
2                                  HORNBEAK   v. MCDONALD



                  ______________________

    Before O’MALLEY, BRYSON, and REYNA, Circuit Judges.
O’MALLEY, Circuit Judge.
    Norma Hornbeak appeals from a decision of the Unit-
ed States Court of Appeals for Veterans Claims (“the
Veterans Court”) which affirmed a decision of the Board
of Veterans’ Appeals (“the Board”). Hornbeak v. McDon-
ald, No. 14-2156, 2015 WL 5255347 (Vet. App. Sept. 10,
2015). Because Mrs. Hornbeak does not raise any issues
on appeal that are within our jurisdiction, we accordingly
dismiss.
    This appeal concerns Edward Hornbeak’s entitlement
to benefits for military service during World War II, now
pursued by Mrs. Hornbeak, his surviving wife. Specifical-
ly, Mrs. Hornbeak seeks burial benefits predicated on
entitlement to service connection for Mr. Hornbeak’s lung
cancer, on the theory of exposure to carcinogenic radia-
tion. The Regional Office and the Board denied Mrs.
Hornbeak’s claim, finding that the preponderance of the
evidence weighed against finding that Mr. Hornbeak was
within ten miles of Nagasaki or otherwise exposed to
ionizing radiation while in service. In particular, the
Board rejected lay statements previously made by Mr.
Hornbeak regarding service proximate to Nagasaki as not
credible, noting (1) varying details and inconsistency in
his statements over time, as well as (2) the absence of an
entry in the service records with respect to Nagasaki.
    Mrs. Hornbeak timely appealed to the Veterans
Court, making two central arguments. First, she argued
that the Board clearly erred in finding Mr. Hornbeak’s lay
statements not credible due to the alleged variation and
inconsistency. Second, she argued that the Board im-
properly relied on the absence of corroborating service
records as substantive discrediting evidence. The Veter-
ans Court addressed the first argument, finding no issues
HORNBEAK     v. MCDONALD                                    3



with the Board’s analysis: “In all, the Court cannot con-
clude that the Board clearly erred when it determined
that Mr. Hornbeak’s lay statements lacked credibility
based on the inconsistencies in those statements.” Id. at
*3. The Veterans Court determined that it did not, there-
fore, need to reach Mrs. Hornbeak’s second argument, as
it constituted harmless error:
    As the inconsistencies in Mr. Hornbeak’s state-
    ments were thus a sufficient basis for the Board to
    find those statements not credible, the Court need
    not consider the appellant’s remaining arguments
    regarding the Board’s credibility findings. At
    best, those alleged errors are not prejudicial. See
    38 U.S.C. § 7261(b)(2) (requiring the Court to
    “take due account of the rule of prejudicial error”);
    Shinseki v. Sanders, 556 U.S. 396, 406 (2009).
Id. at *4.
    Mrs. Hornbeak timely appeals the Veterans Court’s
decision to this court, relying on the same argument made
below with respect to Mr. Hornbeak’s service records.
Specifically, she argues that the Board erred by treating
“the absence of evidence of a matter in a record” as “sub-
stantive evidence that the matter did not occur.” Appel-
lant Br. at 13 (citing AZ v. Shinseki, 731 F.3d 1303 (Fed.
Cir. 2013)). The Veterans Court’s “decision not to review”
that “prejudicial” issue, she argues, was error. Id. at 20.
    We do not have jurisdiction to address the merits of
Mrs. Hornbeak’s argument. The Veterans Court affirmed
the Board’s decision explicitly without reliance on the
absence of service record evidence. We may not, there-
fore, rule on that issue. Cromer v. Nicholson, 455 F.3d
1346, 1349 (Fed. Cir. 2006) (“If the Veterans Court af-
firmed without reaching the adverse presumption issue,
its disposition of the case could not be altered by the
adoption of ‘the position urged,’ and we again would lack
jurisdiction . . . .”). It is, moreover, well-established that
4                                  HORNBEAK   v. MCDONALD



this court is without jurisdiction to review the Veterans
Court’s determinations over whether alleged Board errors
are harmless:
    We do not have a record before us that would
    permit us to offer an informed legal construction
    of exactly what the Veteran’s Court must do when
    it “take[s] due account” of prejudicial error, and
    we would surpass our jurisdiction if we were to
    apply the harmless error rule as codified in sec-
    tion 7261(b)(2) to the facts of this case.
Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004).
                      CONCLUSION
    Because Mrs. Hornbeak does not raise any issues that
are within this court’s jurisdiction, we must accordingly
dismiss her appeal.
                      DISMISSED
