Case: 12-7128    Document: 21    Page: 1   Filed: 12/26/2012




           NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                __________________________

                   CAROL G. MEAD,
                   Claimant-Appellant,
                            v.
  ERIC K. SHINSEKI, SECRETARY OF VETERANS
                   AFFAIRS,
               Respondent-Appellee.
                __________________________

                        2012-7128
                __________________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in case no. 10-3897, Judge William P.
 Greene, Jr.
              __________________________

                      ON MOTION
                __________________________

  Before NEWMAN, PROST, and WALLACH, Circuit Judges.
 PER CURIAM.
                       ORDER
     Carol G. Mead appeals from a ruling of the United
 States Court of Appeals for Veterans Claims (“Veterans
 Court”) sustaining the decision of the Board of Veterans’
 Appeals (“Board”) denying her service connection claim
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 CAROL MEAD   v. SHINSEKI                                  2

 for the cause of the death of her husband, veteran John R.
 Mead. The Secretary of Veterans Affairs also moves for
 leave to respond to Mrs. Mead’s supplemental brief.
     Mr. Mead served in the U.S. Army from 1950 to 1969.
 Although he was knocked unconscious for 5-10 minutes
 during combat in Korea in 1953 from a shell burst, his
 separation examination showed no abnormalities or
 neurological conditions except for noted hearing loss in
 his right ear. In 2003, Mr. Mead suffered a stroke and
 was admitted to the hospital, where he passed away a
 short time later.
     In August 2003, the appellant, Mrs. Mead, filed a
 claim with the Denver, Colorado Regional Office of the
 Department of Veterans Affairs (“VA”), asserting that her
 husband’s combat injury was the principal, or a contribu-
 tory, cause of his death.
     After an extensive claims development process, the
 Board sustained the Regional Office’s denial of Mrs.
 Mead’s claim. The Board held that the preponderance of
 the evidence suggested Mr. Mead’s death was unrelated
 to the injury he sustained in service. In reaching that
 conclusion, the Board relied heavily on the opinions of VA
 medical examiners who concluded that Mr. Mead’s stroke
 was more likely attributable to post-service risk factors,
 including advanced age and history of smoking. In find-
 ing these medical opinions more probative than those in
 the record suggesting a possible nexus between a trau-
 matic brain injury and stroke, the Board emphasized the
 lack of reported medical cases linking a stroke to a head
 injury multiple years after the event, such as in this case,
 and the lack of evidence suggesting any brain injury
 leading up to and at the time of Mr. Mead’s death.
    Mrs. Mead appealed to the Veterans Court, alleging
 the Board erred in relying on inadequate unfavorable
 medical opinions and rejecting favorable medical opinions,
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 3                                    CAROL MEAD   v. SHINSEKI

 but the Veterans Court rejected these arguments. The
 Veterans Court found no error in the Board assigning less
 weight to favorable opinions provided by a chiropractor
 and two physicians who were not neurologists. The
 Veterans Court further agreed with the Board’s determi-
 nation that several of the favorable opinions “were not
 based on the correct facts,” because those opinions “did
 not discuss or otherwise account for how . . . additional
 identified risk factors [including age, history of smoking,
 and history of heart- or vascular-related disease] did not
 significantly influence [Mr. Mead’s] death.” As a result,
 the Veterans Court concluded that the Board did not
 clearly err in concluding that the unfavorable opinions
 were adequate and relying on them to make its decision.
     Mrs. Mead now appeals.
     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 court in its decision. This court may also
 entertain challenges to the validity of a statute or regula-
 tion and may interpret constitutional and statutory
 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).
     Mrs. Mead does not present an issue within this
 court’s jurisdiction. First, Mrs. Mead appears to take
 issue with the weight afforded the medical opinion of
 neurologist Dr. Michael Hehmann, which opined that Mr.
 Mead’s 1953 injury was likely a major contributing factor
 leading to his death. The Board found that Dr. Heh-
 mann’s opinion was less probative than the opinion of
 other neurologists in the record because Dr. Hehmann
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 CAROL MEAD   v. SHINSEKI                                  4

 failed to take into account any post-service risk factors,
 including Mr. Mead’s advanced age and history of smok-
 ing. To the extent that Mrs. Mead contends that the
 Board gave too little weight to Dr. Hehmann’s opinion,
 that factual determination is outside of this court’s juris-
 dictional review. See Bastien v. Shinseki, 599 F.3d 1301,
 1306 (Fed. Cir. 2010) (“The evaluation and weighing of
 evidence and the drawing of appropriate inferences from
 it are factual determinations committed to the discretion
 of the factfinder. We lack jurisdiction to review such
 determinations.”).
     For similar reasons, we must also decline to address
 Mrs. Mead’s argument regarding the opinion of ophthal-
 mologist Dr. Horace Gardner. Despite Mrs. Mead’s sug-
 gestions to the contrary, the Board did not overlook Dr.
 Gardner’s experience in conducting trauma research for
 the U.S. Army. Instead, while considering Dr. Gardner’s
 opinion, the Board found it deserving of less weight than
 the opinions of neurologists in the record who had more
 specialized expertise in evaluating the medical inquiry at
 issue. To the extent that Mrs. Mead challenges the
 weight afforded Dr. Gardner’s opinion, that argument,
 too, is outside of this court’s limited jurisdiction.
     Finally, Mrs. Mead argues that she was prejudiced by
 the Board’s improper finding that her husband suffered
 from hypertension. But this argument was already
 addressed and rejected by the Veterans Court. That court
 explained that the Board relied most heavily on the
 opinions of medical examiners who made no reference to
 hypertension. Any challenge to the Veterans Court’s
 finding that Mrs. Mead was not actually prejudiced in
 that regard is also outside of this court’s limited review.
 See generally Newhouse v. Nicholson, 497 F.3d 1298, 1302
 (Fed. Cir. 2007) (“Our jurisdictional statute precludes
 appellate review of factual matters and the application of
 law to facts. This statute prevents us from reviewing [the
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 5                                      CAROL MEAD   v. SHINSEKI

 appellant’s] contentions regarding actual prejudice.”)
 (citation omitted).
       Accordingly,
       IT IS ORDERED THAT:
       (1) The appeal is dismissed.
       (2) Each side shall bear its own costs.
    (3) The Secretary’s motion for leave to respond is
 granted.

                                        FOR THE COURT


                                        /s/ Jan Horbaly
                                        Jan Horbaly
                                        Clerk


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