       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                RUBY MCFADDEN,
                Claimant-Appellant,

                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2010-7031
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 07-3529, Judge Lawrence B.
Hagel.
             ___________________________

              Decided: January 11, 2011
             ___________________________

   PATRICIA NATION, Nation Law Firm PLLC, of Little
Rock, Arkansas, for claimant-appellant.

   JAMES SWEET, 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 Attor-
MCFADDEN   v. DVA                                       2


ney General, JEANNE E. DAVIDSON, Director, and
KENNETH M. DINTZER, Assistant Director. Of counsel on
the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and TRACEY P. WARREN, Staff Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
              __________________________

Before NEWMAN, DYK, Circuit Judges, and WHYTE, District
                       Judge. *
NEWMAN, Circuit Judge.

    Ruby McFadden appeals the decision of the Court of
Appeals for Veterans Claims affirming the Board of
Veterans’ Appeals denial of certain benefits relating to
her deceased husband’s gallbladder cancer. 1 Because by
statute we cannot review fact-related challenges raised by
Mrs. McFadden, and because the Court of Veterans
Claims (Veterans Court) applied correct legal principles,
we affirm the decision of the Court of Veterans Claims.

                      BACKGROUND

    Mrs. McFadden’s late husband, William McFadden,
served this country in the Army from December 1950 to
October 1952, during the Korean Conflict era. Mr.
McFadden was stationed at Fort Hood, Texas, and in
Germany during that time. In October 2002 Mr. McFad-
den was diagnosed with gallbladder cancer. On October
22, 2003 Mr. McFadden applied through the Department
of Veterans Affairs (“VA”) for service connection for

   *    Honorable Ronald M. Whyte, District Judge,
United States District Court for the Northern District of
California, sitting by designation.
    1   McFadden v. Shinseki, No. 07-3529, 2009 WL
3157558 (Vet. App. Sept. 30, 2009).
3                                         MCFADDEN   v. DVA


gallbladder cancer, diabetes, emphysema, and hearing
and vision loss. 2 The VA could not obtain all of Mr.
McFadden’s service medical records because the National
Personnel Records Center (“NPRC”) in St. Louis, where
most of Mr. McFadden’s records had been stored, reported
that the records had been destroyed in a large fire at the
facility in 1973. Mr. McFadden also did not have a copy of
his records and could not recall the possible dates that he
might have received any treatment. The VA concluded
that further efforts to obtain Mr. McFadden’s service
medical records would be futile.

    The only service medical record available was a sepa-
ration examination, which included a medical history
form completed by Mr. McFadden. The examination
revealed normal clinical evaluations, including a normal
abdomen. In the form filled out by Mr. McFadden, he
wrote “good” to describe his present health and marked
“yes” and “no” boxes concerning whether he had ever had
certain conditions or symptoms. He checked “no” in the
box asking whether he had ever had “stomach, liver or
intestinal trouble.”

    During the processing of his claim before the VA Re-
gional Office, Mr. McFadden filed a statement explaining
that he had stomach cramps while in the service. He said
that the water at Fort Hood made him sick, so he drank
milk instead of water until a doctor told him he should
start drinking water. According to his statement, he
started drinking water again and his stomach continued
to cramp. Mr. McFadden reported that when he came
home from the Army he went to the VA and was diag-
nosed with “German flu.” He further reported that he

    2   Mrs. McFadden’s subsequent appeals relate only
to gallbladder cancer.
MCFADDEN   v. DVA                                        4


continued to have stomach pain through the years, and
that he believed that iron in the water during his military
service caused his gallbladder cancer. Mr. McFadden
could not recall whether he had received treatment for
stomach pain while in service, but was treated for a
“nervous” stomach in the years following his service. Mr.
McFadden also submitted a statement from his brother
indicating that Mr. McFadden was sick when he returned
home from the Army and had experienced stomach
cramps. Mr. McFadden authorized the VA to obtain
medical records from doctors who had treated him for
stomach cramps, nervous stomach, and nausea after he
returned home from service. The VA attempted to do so
but was unsuccessful. The VA concluded that the doctors
were deceased and the records unavailable.

    The VA denied Mr. McFadden’s claims for benefits in
August 2004. He appealed to the Board of Veterans’
Appeals (Board), and submitted additional statements
from friends who recalled Mr. McFadden reporting stom-
ach pains ever since he had been in the military. He also
submitted information from the American Cancer Society
website about gallbladder cancer, and a letter from a
doctor who had recently examined him. The doctor, Dr.
Morris, concluded that “it is a possibility that Mr. McFad-
den[’s] medical condition may have been related to his
military services,” relying in part on medical history
provided by Mr. McFadden. Mrs. McFadden also testified
before the Board that Mr. McFadden wrote home during
service that he was having trouble with and seeking
treatment for stomach pains.         She stated that Mr.
McFadden continuously sought VA treatment for stomach
pains from the time he returned home until he was diag-
nosed with gallbladder cancer in 2002 and began chemo-
therapy.
5                                        MCFADDEN   v. DVA


     Mr. McFadden died of gallbladder cancer on July 9,
2005 while his appeal was pending. Mrs. McFadden then
filed an application for dependency and indemnity com-
pensation benefits for the cause of her husband’s death
and asserted that she was entitled to accrued benefits
based on Mr. McFadden’s pending appeal for service
connection. The Regional Office denied Mrs. McFadden’s
claims.

    Mrs. McFadden appealed to the Board. The Board
denied her claims on August 3, 2007. The Board found
that the available service medical records did not show
any diagnosis of gallbladder cancer. The Board also found
that there was no competent medical evidence linking Mr.
McFadden’s gallbladder cancer to military service. The
Board determined that the “VA made all efforts to notify
and to assist the appellant with regard to the evidence
obtained, the evidence needed, the responsibilities of the
parties in obtaining the evidence, and the general notice
of the need for any evidence in the appellant’s posses-
sion.” Board Decision at 4. The Board stated that in light
of the destruction of records in the NPRC fire, the Board
had a heightened obligation to explain its findings and
conclusions and to consider carefully the benefit-of-the-
doubt rule, citing O’Hare v. Derwinski, 1 Vet. App. 365,
367 (1991), and Pruitt v. Derwinski, 2 Vet. App. 83, 85
(1992). The Board concluded, however, that case law does
not lower the legal standard for proving a claim for ser-
vice connection. “It merely increases the Board’s obliga-
tion to evaluate and discuss in its decision all of the
evidence that may be favorable to the veteran.” Board
Decision at 6.

    The Board went on to evaluate the evidence, including
the separation medical records, clinical documentation of
the gallbladder cancer, the American Cancer Society
MCFADDEN   v. DVA                                         6


information, the statements of family and friends regard-
ing Mr. McFadden’s reports of stomach pain, and Dr.
Morris’ opinion that the cancer was possibly related to
Mr. McFadden’s military service. The Board concluded
that “[t]he initial manifestations of these disorders, 40 or
more years following service separation, are too remote in
time from service to support the claim that these condi-
tions are related to service absent objective evidence to
the contrary.” Id. at 8–9. Regarding Dr. Morris’ opinion,
the Board stated that it was not bound to accept medical
opinions based solely on medical history as provided by
the veteran. The Board also stated that “where a physi-
cian is unable to provide a definite causal connection, as
here, the opinion on that issue constitutes ‘what may be
characterized as “non-evidence.”’” Id. (quoting Perman v.
Brown, 5 Vet. App. 237 (1993)). In denying service con-
nection for accrued benefits and for the cause of death,
the Board stated that it considered the benefit-of-the-
doubt rule but concluded it could not apply since the
preponderance of the evidence was against the veteran’s
claim.

    Mrs. McFadden appealed to the Veterans Court. The
Veterans Court reviewed the factual findings of the Board
in detail and found that they were not clearly erroneous.
The court disagreed with Mrs. McFadden’s argument that
the Board failed to take into account all of the favorable
evidence. The court found that the Board did not reject
Dr. Morris’ medical opinion solely because the opinion
was based on facts supplied by the veteran, since the
Board also explained that the opinion was too speculative.
 The court discussed the impropriety of suggesting that
Dr. Morris’ opinion was “non-evidence,” but concluded
that the error was harmless because the opinion was
insufficient to establish service connection. The Veterans
Court concluded that
7                                           MCFADDEN    v. DVA


    the Board’s analysis survives, but barely. The
    Board appears to require that a medical opinion
    be unequivocal to be competent. See R. at 9. Evi-
    dence is only incompetent, however if it cannot be
    considered by the trier of fact at all; that is,
    through some legal prohibition. As long as a per-
    son is qualified to provide an opinion, that opinion
    is competent, though the trier of fact may believe
    that the opinion’s probative value is minimal.
    Further, the Board misstates the law when it
    states that it need not consider a medical opinion
    based solely on history given by the veteran. This
    fact may be considered when determining the pro-
    bative value of a doctor’s opinion, but the opinion
    cannot be wholly discarded solely for this reason.
    See Kowalski [v. Nicholson, 19 Vet. App. 171, 179
    (2005)]. Finally the Board refers to Dr. [Morris’]
    statement as having “no probative value” because
    it alone is “insufficient to establish service connec-
    tion.” R. at 9. This is a misstatement of the law,
    as any competent opinion must be considered,
    along with other evidence, when determining if
    service connection is warranted; such evidence
    need not establish service connection by virtue of
    its own weight.

McFadden, No. 07-3529, slip op. at 7 n.4.

    The Veterans Court also evaluated Mrs. McFadden’s
argument that the destruction of the service medical
records in the fire required the VA to decide the claims in
her favor. The court explained that absent evidence of
bad faith or negligence, an adverse presumption of service
connection is not warranted, citing Cromer v. Nicholson,
455 F.3d 1346, 1350–51 (Fed. Cir. 2006). The court also
concluded that there is no heightened benefit of the doubt
MCFADDEN   v. DVA                                          8


where a claimant’s service medical records have been
destroyed, but in such circumstances the Board has a
heightened obligation to evaluate and discuss in its deci-
sion all of the evidence that may be favorable to the
appellant. The Veterans Court affirmed the decision of
the Board denying service connection for accrued benefits
and for the cause of Mr. McFadden’s death. Mrs. McFad-
den appeals.

                        DISCUSSION

    Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Under 38 U.S.C. §7292(d),
this court is to review the law applied by the Veterans
Court and hold unlawful an incorrect “regulation or any
interpretation thereof.” However, the court may not
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,” except to the extent an appeal presents
a constitutional issue. Id. §7292(d)(2).

    Several of the arguments made by Mrs. McFadden on
appeal seek review of factual matters or application of law
to the facts of this case. For example, Mrs. McFadden
argues that the Board failed to provide an adequate
statement of the reasons or bases for its determinations,
as required by 38 U.S.C. §7104(d)(1). The Veterans Court
reviewed the Board’s decision, and concluded that it met
the standard of §7104(d)(1). This required the Veterans
Court to apply the law of §7104(d)(1) to the essentially
factual question of how the Board explained its decision.
Under §7292, this court cannot review this question again
on appeal. See Cook v. Principi, 353 F.3d 937, 941 (Fed.
Cir. 2003) (holding that §7292 precludes review of appli-
cation of §7104(d)(1) to the fact of Board’s failure to
discuss certain evidence in its decision). Likewise, the
9                                          MCFADDEN   v. DVA


issue of whether there is sufficient evidence to establish
service connection is an issue of fact. Waltzer v. Nichol-
son, 447 F.3d 1378, 1380 (Fed. Cir. 2006). Because §7292
precludes our review of these issues, we will review the
arguments presented by Mrs. McFadden only to the
extent they present legal issues relied upon by the Veter-
ans Court.

    Mrs. McFadden argues that the Veterans Court com-
mitted legal error in rejecting Dr. Morris’ opinion as
incompetent and having no probative value. The basis for
this argument appears to be certain misstatements of the
law in the Board’s decision. For example, the Board
stated that it need not consider a medical opinion based
solely on a history given by the veteran. However, the
Veterans Court noted these inaccuracies and concluded
that they did not affect the Board’s final conclusion as to
service connection. See McFadden, No. 07-3529, slip op.
at 6–7. The Veterans Court’s analysis does not reveal any
misinterpretation of the law applicable to Dr. Morris’
opinion, and this court may not venture further to deter-
mine whether the Veterans Court’s proper legal state-
ments were correctly applied to the facts of this case.

     The primary legal argument made by Mrs. McFadden
is that due to the destruction of Mr. McFadden’s service
medical records in the NPRC fire, the Board had a
“heightened obligation to give the benefit-of-the-doubt to
the claimant, especially where the BVA cite[s] no evidence
or facts by which to impeach or contradict the claimant,”
citing 38 U.S.C. §5107 and 38 C.F.R. §3.102. Reply Br.
16. Mrs. McFadden argues that the benefit-of-the-doubt
rule operates to shift the burden of persuasion in this case
from the claimant to the VA.
MCFADDEN   v. DVA                                        10


    This court has rejected the argument that destruction
of records in the 1973 NPRC fire results in an adverse
presumption against the government that lowers or shifts
the burden of proof. See Cromer v. Nicholson, 455 F.3d
1346, 1350–51 (Fed. Cir. 2006). 3 The VA does have its
usual duty to assist under 38 U.S.C. §5103A, as well as a
heightened duty to explain its findings in cases involving
lost records, Cromer, 455 F.3d at 1351 (citing O’Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991)). The Veterans
Court found those duties satisfied here, and Mrs. McFad-
den presents no basis on which we may review those
findings in this case.

    Mrs. McFadden also points out that the VA does not
offer evidence contradictory to that offered by her, and
thus argues that there is at least as much positive evi-
dence as there is negative. “When there is an approxi-
mate balance of positive and negative evidence regarding
any issue material to the determination of a matter, the
Secretary shall give the benefit of the doubt to the claim-
ant.” 38 U.S.C. §5107(b). The determination of whether
the evidence is in approximate balance in this case is
beyond the statutory authority of this court given in
§7292, but the court may reference the facts of this case in
determining whether the Veterans Court applied the
correct law. Here, the court is presented with the legal
question of whether the failure to rebut positive evidence
offered by the veteran requires application of the benefit-
of-the-doubt rule, even where the Board and Veterans
Court determine that the evidence offered by the veteran



   3    The government mistakenly states that Cromer
was decided en banc. While not an en banc decision, as an
earlier panel decision Cromer is the law of this circuit
unless overturned en banc.
11                                         MCFADDEN   v. DVA


does not show that it is more likely than not that the
disability is service connected.

     The only evidence connecting Mr. McFadden’s gall-
bladder cancer to service was Dr. Morris’ opinion that “it
is a possibility” that the gallbladder cancer “may have
been” related to Mr. McFadden’s military service. This
opinion assumed that Mr. McFadden’s stomach pains
began in service and continued thereafter, which is in
accordance with the lay evidence as to Mr. McFadden’s
stomach pains and might have been further supported by
the unavailable medical records. This court has held that
a medical “examiner’s statement, which recites the inabil-
ity to come to an opinion, provides neither positive nor
negative support for service connection” for purposes of
the benefit of the doubt rule. Fagan v. Shinseki, 573 F.3d
1282, 1289 (Fed. Cir. 2009). Although all pertinent medi-
cal and lay evidence must be considered, id. at 1290 n.4
(citing Hogan v. Peake, 544 F.3d 1295, 1298 (Fed. Cir.
2008)), there is no justification for shifting the burden of
proof or applying an adverse presumption when there is
no medical evidence that a nexus between the disability
and service is more than a possibility. Absent special
circumstances justifying an adverse presumption or shift
in the burden of proof, the benefit of the doubt statute, 38
U.S.C. §5107(b), does not alter the minimum level of
evidence needed to establish the requisite nexus. The
Veterans Court’s decision reveals no misinterpretation of
the statute in this case. Accordingly, we affirm the deci-
sion of the Veterans Court.

     No costs.

                       AFFIRMED
