                        NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit

                                       2006-7383


                                REUBEN T. GRISSETTE,

                                                            Claimant-Appellant,

                                            v.


                 R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


      David F. Abernethy, Drinker Biddle & Reath LLP, of Philadelphia, Pennsylvania, for
claimant-appellant.

       Michael S. Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief was Peter D. Keisler, Assistant Attorney General, and Deborah A. Bynum,
Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant
General Counsel, and Y. Ken Lee, Attorney, United States Department of Veterans Affairs,
of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Bruce E. Kasold
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2006-7383

                               REUBEN T. GRISSETTE,

                                                              Claimant-Appellant,

                                            v.

                               R. JAMES NICHOLSON,
                             Secretary of Veterans Affairs,

                                                              Respondent-Appellee.

                           __________________________

                           DECIDED: July 25, 2007
                           __________________________


Before LINN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST, Circuit
Judge.

CLEVENGER, Senior Circuit Judge.


      Presently before the court is the appeal of Reuben T. Grissette, a Korean War

veteran, from the final judgment of the Court of Appeals for Veterans Claims ("CAVC")

affirming a determination by the Board of Veterans Appeals ("Board") that

Mr. Grissette's previously-denied claim for service connection should not be reopened

based on new and material evidence.         Because this appeal ultimately presents a

disagreement over factual determinations, we dismiss.

                                            I

      Reuben T. Grissette served in active duty in the United States Army for

approximately two years from April 1953 until April 1955. Prior to his entry into service,
Mr. Grissette states that he was in excellent physical health, and that he was a

participant in many organized sports, including track, football, and boxing. On April 20,

1953, the Army gave Mr. Grissette a physical examination and the record of that exam

shows a clean bill of health. In the autumn of 1954, however, Mr. Grissette was treated

by Army doctors for asthma. The treatment notes reflect that Mr. Grissette reported

having asthma for the past ten years, and that his symptoms were "[w]orse around this

time of year." Upon his honorable discharge in April 1955, the Army gave Mr. Grissette

another physical examination, and the record of that exam notes that he suffered from

"asthma and shortness of breath."

      Later in 1955, shortly after his release from active duty, Mr. Grissette was

hospitalized for intense shortness of breath. The clinical record written by his treating

physician reflects that Mr. Grissette reported having seasonal asthma "for about the

past five years and suffers exacerbations in June or July of each year," but that "[h]e is

relatively free of attacks in between times." Mr. Grissette then filed a claim with the

Veterans Administration ("VA") for service connection based on his asthma, which he

alleged that he had acquired while serving in active duty. Citing Mr. Grissette's self-

reported history reflected in his medical records of having asthma for at least the past

five years, however, the VA's regional office ("RO") in Chicago rejected his claim as

being unrelated to his military service. Mr. Grissette did not appeal the RO's decision.

      Mr. Grissette was seen by another physician, Dr. Walter K. Grigg, in 1957.

Dr. Grigg reported in an affidavit that Mr. Grissette complained of "[a]sthma

intermittently for 3 years," and that Mr. Grissette "[n]ever had asthma prior to its onset

while in service." Based on Dr. Grigg's affidavit (and possibly other evidence as well),




2006-7383                                2
Mr. Grissette subsequently attempted to reopen his claim for service connection in

1957, 1959, and 1960. The RO refused on each occasion. Mr. Grissette appealed

none of these decisions.

       Mr. Grissette again attempted to reopen his claim for service connection in 2000

based on new and material evidence, including, inter alia, statements submitted by both

his cousin and his sister-in-law. Mr. Grissette's cousin, Reverend Edward Grissette,

explained in his statement that he had "known [Mr. Grissette] all his life during his

childhood and he was in good health," and that Mr. Grissette "was active in athletics

(boxing, football, track, etc.) before entering the military."     Rev. Grissette further

explained that he was "certain that [Mr. Grissette] did not have bronchial asthma prior to

being drafted into the military otherwise his physical examination during induction

should have revealed it," and also that "[i]mmediately following discharge when he

came home he complained of shortness of breath which was diagnosed by his

physician as bronchial asthma." Mr. Grissette's sister-in-law, Vivian Grissette, gave a

statement along similar lines: "Prior to entering the Army in April 1953 [Mr. Grissette] did

not have Bronchial Asthma, however when he returned home or shortly thereafter he

was seen by a doctor and diagnosed with asthma and hospitalized . . . ." In a parallel

proceeding also initiated by Mr. Grissette in 2000, he challenged the various rating

decisions during the period of 1955-60 on the basis of clear and unmistakable error.

       The RO again declined to reopen Mr. Grissette's claim. With respect to new and

material evidence, the RO briefly explained in a written decision dated August 30, 2000

that the statements of Rev. Grissette and Mrs. Grissette "do[] not constitute new and

material evidence because [they] do[] not establish a chronic condition was incurred in




2006-7383                                3
or aggravated by service." And with respect to clear and unmistakable error, the RO

concluded that although Mr. Grissette "was certainly qualified to provide testimony as to

the history of the symptomatology," "[t]he fair preponderance of evidence shows service

connection for allergic asthma originally claimed as a chest condition is not warranted

because the symptoms of the condition existed prior to service and the evidence of

record does not show aggravation of the condition during active military service."

Mr. Grissette appealed these decisions to the Board.

       Prior to the Board's consideration of his appeal, however, the RO readjudicated

Mr. Grissette's request to reopen his claim, 1 but arrived at the same conclusion as it had

in 2000.    The RO explained that although the statements of Rev. Grissette and

Mrs. Grissette constituted new evidence, the assertions contained therein were

duplicative of Dr. Grigg's assertions, which had already been found to be "contradicted

by clear and credible evidence that [Mr. Grissette's] asthma was present prior to

service."   The RO continued, characterizing the new evidence as merely being

"statements by family members made many years after the fact who may or may not

have known about a relatively mild and episodic health condition of [Mr. Grissette] prior

to service." As such, the RO concluded that these statements did not justify reopening

the claim on the basis of new and material evidence. The RO also acknowledged the

existence of "a dispute about whether or not [Mr. Grissette's] asthma actually began

prior to service, [but that] there was evidence [on] file which supported the conclusion



       1
              This readjudication was performed in order to ensure that the RO had fully
complied with the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 ("VCAA"). The RO's compliance with the VCAA is not at issue
in this appeal.



2006-7383                                4
that it had." Thus, in the RO's opinion, there was no justification for reopening the claim

on the basis of clear and unmistakable error because "the alleged error involved an

exercise of judgment which cannot be characterized as undebatably erroneous."

       Before the Board, Mr. Grissette was granted the opportunity to offer his own live

testimony to supplement the allegedly new and material evidence he had submitted to

the RO.    In the course of testifying, Mr. Grissette reiterated his assertions that he

showed no symptoms of asthma until 1954, recounted his extensive exposure to

"various chemicals, fuels, [and] diesel fuels" while in the military, and explained that the

statements in his medical records as to his long history of asthma were simply

"mistake[s]." Mr. Grissette also submitted to the Board a letter from a Notary Public

attesting to the fact that two men—a Mr. Obbie Rumley Sr. and a Mr. John Massey—

stated on August 25, 2003, that they worked with Mr. Grissette as longshoremen prior to

his entry into service in 1953, and that they "did not observe or notice any heavy

breathing difficulties or signs of abnormal breathing on the part of [Mr. Grissette]" those

many years ago. 2

       Upon its consideration of the newly-submitted evidence—the statements of

Mr. Grissette's relatives, the letter from the Notary Public, and Mr. Grissette's own

testimony—the Board explained in an October 8, 2004 written opinion that



       2
                Mr. Grissette submitted additional medical documentation he had obtained
since 1960, including a September 3, 2003 letter from Dr. Christopher Fahey, who had
been treating Mr. Grissette for asthma since 1990. In that letter, Dr. Fahey
acknowledged that he had "no knowledge of [Mr. Grissette's] past history including his
childhood records or his military service records." Nevertheless, Dr. Fahey asserted
that "it is plausible that intense exposure to toxin, dust, and vehicle exhaust could have
produced his asthmatic [symptoms] and [that] the ongoing exposure to those elements
could have had an aggravating [effect] on his lungs." The Board's consideration of this
additional medical evidence does not appear to be an issue that Mr. Grissette appeals.


2006-7383                                5
Mr. Grissette's submissions were "duplicative of evidence already of record." Moreover,

the Board explained,

      Insofar as the statements attempt to refute the conclusion of the RO that
      the veteran suffered from asthma prior to service, they are insufficient to
      support the claim. It is now well-established that a layperson without
      medical training, such as the veteran, is not qualified to render a medical
      opinion regarding the etiology of disorders and disabilities. . . . Because
      there is no competent medical evidence that the veteran's preexisting
      asthma was aggravated in service, the new evidence is not so significant
      that it must be considered in order to fairly decide the merits of the claim.
      In the absence of such evidence, the claim may not be reopened.

Accordingly, the Board rejected Mr. Grissette's attempt to reopen his claim on the basis

of new and material evidence. The Board also concluded, for largely the same reasons

as the RO, that there had been no clear and unmistakable error in previously denying

his claim for service connection.

      Mr. Grissette then appealed to the CAVC, where he challenged only the Board's

rejection of his personal testimony and the statements of his relatives as new and

material evidence. On May 30, 2006, the CAVC affirmed the Board's decision, and in

so doing, observed:

      Mr. Grissette asserts that his personal statement and the lay testimony of
      his relatives were offered to provide evidence that he did not have asthma
      prior to service. Rather than address the observable symptomatology,
      however, the statements provide assertions as to when Mr. Grissette first
      had asthma. . . . The Board correctly concluded that Mr. Grissette and
      his relatives were not competent to state whether or not Mr. Grissette had
      asthma at any particular time, and that such statements were not
      probative.

      Mr. Grissette now appeals to this court, asserting jurisdiction pursuant to

38 U.S.C. § 7292.




2006-7383                               6
                                              II

       By statute, Congress has explicitly directed the VA to reopen a veteran's

previously-denied claim for service connection "[i]f new and material evidence is

presented or secured with respect to [that claim]." 38 U.S.C. § 5108. In so doing, the

VA must "consider all information and lay and medical evidence of record." 38 U.S.C.

§ 5107(b) (emphasis added). See also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a);

38 C.F.R. § 3.307(b); Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006).

Pursuant to VA regulations, competent lay evidence is defined as follows:

              Competent lay evidence means any evidence not requiring that the
       proponent have specialized education, training, or experience. Lay
       evidence is competent if it is provided by a person who has knowledge of
       facts or circumstances and conveys matters that can be observed and
       described by a lay person.

38 C.F.R. § 3.159(a)(2). New evidence need not be considered, however, if it is merely

duplicative of evidence already in the record. See 38 C.F.R. § 3.156(a) ("New and

material evidence can be neither cumulative nor redundant of the evidence of record at

the time of the last prior final denial of the claim sought to be reopened, and must raise

a reasonable possibility of substantiating the claim.").

       This court's jurisdiction to hear appeals from the CAVC is strictly limited to

questions of law; we have no power to review "(A) a challenge to a factual

determination, or (B) a challenge to a law or regulation as applied to the facts of a

particular case." 38 U.S.C. § 7292. Given this narrow standard of review, Mr. Grissette

argues that the CAVC and the Board erred as a matter of law by misinterpreting the

relevant statutes and regulations in determining that he had not submitted new and




2006-7383                                 7
material evidence. 3 In particular, Mr. Grissette contends that the CAVC and the Board

discounted the lay evidence he submitted due to the erroneous belief that such

evidence is legally incompetent to prove the timing of observable symptoms of his

asthma. In other words, Mr. Grissette believes he was wrongfully precluded from using

his new lay evidence to demonstrate that he exhibited symptoms of asthma only after

he entered the military. Mr. Grissette therefore urges us to reverse and remand for a

full consideration of his new evidence.

       The heart of Mr. Grissette's appeal is that his lay evidence was ignored contrary

to our holding in Buchanan that "[i]f the Board concludes that the lay evidence

presented by a veteran is credible and ultimately competent, the lack of

contemporaneous medical evidence should not be an absolute bar to the veteran's

ability to prove his claim of entitlement to disability benefits based on that competent lay

evidence." 451 F.3d at 1337. We disagree. While it might be true that statements were

made in the proceedings below concerning the incompetence of this lay evidence to

serve as medical evidence, the lay evidence was also evaluated for its tendency to

prove the onset of observable symptoms. The RO, for example, explicitly recognized

Mr. Grissette's competence "to provide testimony as to the history of the

symptomatology."     Admittedly, the RO made this statement in the course of its

discussion of clear and unmistakable error, but the statement nevertheless

demonstrates the RO's understanding of the proper use of lay evidence.                More

important, the RO implicitly revealed this understanding in the course of its discussion of



       3
             Mr. Grissette does not appeal the Board's determination that there was no
clear and unmistakable error.



2006-7383                                 8
new and material evidence by pointing out that Rev. Grissette and Mrs. Grissette may

have simply failed to observe symptoms of Mr. Grissette's "relatively mild and episodic

health condition."    The Board considered the new evidence to be "duplicative of

evidence already of record," namely, Dr. Grigg's assertion—based entirely upon

Mr. Grissette's lay observation of his own symptoms—that Mr. Grissette "[n]ever had

asthma prior to its onset while in service."      And the CAVC explicitly grounded its

decision on the fact that the lay evidence failed to "address observable

symptomatology." These statements sufficiently demonstrate to us that there was no

error of law committed below.        The RO, the Board, and the CAVC assessed

Mr. Grissette's new evidence and determined as a matter of fact that it was not

competent and/or sufficient to warrant reopening of his claim for service connection. As

we have recently explained, the question of "[w]hether lay evidence is competent and

sufficient in a particular case is a fact issue," and as such, is "a matter beyond our

jurisdiction" to answer. Jandreau v. Nicholson, No. 07-7029, slip op. at 8 (Fed. Cir.

2007).

                                            III

         Because, contrary to Mr. Grissette's argument, the Board and the CAVC did not

misconstrue the applicable law, this appeal presents a disagreement over factual

determinations. We lack jurisdiction to resolve such factual disagreements, and we

therefore dismiss the appeal.

                                        COSTS

         No costs.




2006-7383                               9
