                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2010-7006


                                   CATHY L. TOOLE,

                                                           Claimant-Appellant,

                                            v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                           Respondent-Appellee.


      Cathy L. Toole, of Biloxi, Mississippi, pro se.

       William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Tony West, 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 Christa A. Shriber, 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

Chief Judge William P. Greene, Jr.
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                       2010-7006




                                  CATHY L. TOOLE,

                                                      Claimant-Appellant,

                                           v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                      Respondent-Appellee.




Appeal from the United States Court of Appeals for Veterans Claims in 07-2675, Chief
Judge William P. Greene, Jr.
                          ___________________________

                             DECIDED: February 3, 2010
                           ___________________________

Before NEWMAN, MAYER and PROST, Circuit Judges.


PER CURIAM.

      Cathy L. Toole, widow of veteran James L. Toole, appeals the decision of the United

States Court of Appeals for Veterans Claims (“Veterans Court”), which affirmed a decision

of the Board of Veterans’ Appeals (“Board”) denying Mrs. Toole’s claim for service

connection for the cause of her husband’s death, dependency and indemnity
compensation, and Dependent’s Educational Assistance benefits. Toole v. Shinseki, No.

07-2675, 2009 WL 2612426 (Vet. App. Aug. 27, 2009). On review of the issues and

arguments presented by Mrs. Toole, we conclude that the appeal is based solely on factual

determinations, the review of which is not within this court’s jurisdiction. The appeal is

dismissed.

                                       DISCUSSION

       Mrs. Toole’s husband served on active duty in the United States Army from February

11 to June 21, 1954, and on active duty for fifteen days of training in 1958. During service,

he was struck over the left ear with a rifle in basic training, and treated for right ear

discharge. Mr. Toole died on December 6, 1997. His death certificate lists cardiac arrest

as the immediate cause of death, as a consequence of cardiomyopathy and myocardial

infarction.   His death certificate also lists diabetes mellitus and chronic obstructive

pulmonary disease (COPD) as other conditions contributing to his death. No autopsy was

performed. Mr. Toole was not service connected for any condition when he died. The

most recent rating decision of the VA was in 1980, finding him permanently and totally

disabled as a result of non-service-connected disabilities, and granting a pension. App. to

Resp. Br. 31.

       Mrs. Toole filed her claims with the VA regional office (“RO”) in January 1998. The

RO denied her claims on the basis that the evidence did not demonstrate that Mr. Toole’s

death was related to his service. On appeal, the Board denied her claims. Mrs. Toole

appealed to the Veterans Court, which vacated the Board’s decision and remanded so that

the Board could consider the impact of the Veterans Claims Assistance Act of 2000. In

May 2002 the Board again denied Mrs. Toole’s claims, but the decision was vacated by the




2010-7006                                    2
Veterans Court pursuant to a joint motion for remand. In July 2003 Mrs. Toole was

informed by the Department of the Army that her husband’s service medical records

(SMRs) were destroyed in a fire, but that Mr. Toole’s file had been reconstructed as much

as possible.

       In April 2005 Mrs. Toole, her daughter, and her brother-in-law testified at a hearing

before a Veterans Law Judge. In August 2005, the Board remanded the claim for the RO

to obtain an etiology opinion regarding the left-ear injury noted in Mr. Toole’s reconstructed

SMRs. After reviewing Mr. Toole’s SMRs and post-service medical records, a VA medical

examiner opined in April 2006 that Mr. Toole’s diabetes, COPD, heart disease,

cerebrovascular accident (stroke), seizure disorder, and the cause of his death were not

related to his service, including the incident in service during which he was struck over his

left ear. In February 2007 the RO issued a Supplemental Statement of the Case denying

Mrs. Toole’s claims, finding that there was no connection between the cause of her

husband’s death and his service. On appeal, the Board found that the evidence did not

show that Mr. Toole’s death was related to a disease or injury incurred in service, and

denied Mrs. Toole’s claims. Mrs. Toole appealed to the Veterans Court.

       In the Veterans Court, Mrs. Toole argued that the Board failed to ensure that the VA

assist her, as required by 38 U.S.C. §5103A, in obtaining all of her husband’s service

records. The Veterans Court evaluated the correspondence with the National Records and

Archives Administration and the National Personnel Records Center concerning the fire and

the status of Mr. Toole’s file. The Veterans Court concluded that the Board’s determination

that the VA had fulfilled its duty to assist Mrs. Toole was not clearly erroneous.




2010-7006                                     3
       The Veterans Court also evaluated Mrs. Toole’s claim that her husband’s death was

service connected. Based on the April 2006 VA medical opinion, the Veterans Court

concluded that the Board’s factual determination that Mr. Toole’s death was not related to

his service, including his in-service injury, was not clearly erroneous. The Veterans Court

further considered Mrs. Toole’s argument that the Board failed to provide adequate reasons

or bases for its decision because it did not mention her husband’s fifteen days of training in

1958. The Veterans Court determined that any error by the Board in not mentioning the

fifteen training days was harmless, as the VA examination report properly noted Mr. Toole’s

service and there was no evidence that Mr. Toole had been injured during the 1958

training. The Veterans Court also rejected Mrs. Toole’s argument that the benefit of the

doubt rule should have been applied, noting that the evidence was not in approximate

balance. Finally, the Veterans Court rejected as unfounded Mrs. Toole’s claim that the

Veterans Court or the VA Secretary had been embezzling money from her.

       In this appeal, Mrs. Toole claims that her statutory and constitutional rights were

violated by the Veterans Court, and she mentions 42 U.S.C. §1983. She states that she

has proof that her husband’s death was service connected, and expresses doubt about the

destruction of his service records in a fire. She argues that the true cause of her husband’s

death remains unknown because an autopsy was not performed. She requests production

of Mr. Toole’s missing records and payment of money that she states is owed her.

       Our jurisdiction to review decisions of the Veterans Court is limited by statute. We

have no authority to review a challenge to a factual determination or a challenge to the

application of law to particular facts. 38 U.S.C. §7292(d)(2) (2006). While constitutional

issues are within the court’s jurisdiction, id., “the mere recitation of a basis for jurisdiction by




2010-7006                                        4
either party or a court, is not controlling; we must look to the true nature of the action,”

Livingston v. Derwinski, 959 F.2d 224 (Fed. Cir. 1992) (dismissing appeal for lack of

jurisdiction). The issues presented here are all within the proscribed categories or are

unsupported recitations of bases for jurisdiction.

       Mrs. Toole’s claims concerning service connection, military service, and Mr. Toole’s

destroyed records all relate to questions of fact. No questions of statutory interpretation or

constitutional application, or of §1983, arise on this appeal. The appeal must be dismissed.

       No costs.




2010-7006                                     5
