Escobar v. Shinseki

527 F. App'x 953
CourtCourt of Appeals for the Federal Circuit
DecidedJuly 12, 2013
Docket2012-7097
StatusUnpublished
Cited by1 cases

This text of 527 F. App'x 953 (Escobar v. Shinseki) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Escobar v. Shinseki, 527 F. App'x 953 (Fed. Cir. 2013).

Opinion

RADER, Chief Judge.

The United States Court of Appeals for Veteran Claims (Veterans Court) affirmed the decision of the Board of Veteran’s Appeals (Board) that Marcelino Escobar was not entitled to total disability resulting from individual unemployability (TDIU). Because Mr. Escobar appeals issues of fact beyond this court’s statutory jurisdiction, this court dismisses.

I.

Mr. Escobar served in the Army from January 1947 to June 1949. Shortly after he began serving, Mr. Escobar was injured by an accidental gunshot to the abdomen. Thereafter, from October 28, 1947 to January 12, 1998, he was rated at 30% disability for service-connected residuals from the gunshot. Mr. Escobar’s rating was increased to 60% on January 13,1998.

In April 2006, Mr. Escobar filed a claim for TDIU under 38 C.F.R. § 4.16. The Regional Office (RO) denied entitlement to a TDIU rating in August 2006 because the RO did not find Mr. Escobar “unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.” J.A. 12; 38 C.F.R. § 4.16(a).

After the denial of a TDIU rating, Mr. Escobar was afforded a hearing before a VA Decision Review Officer in January 2007. At that hearing, Mr. Escobar testified about his TDIU claim. He testified that he was a “[pjhysician [technician” which required him to “look trough [sic] a microscope” and “work night shifts.” J.A. 20. He also testified that he “felt a lot of fatigue,” had “back aches,” and his “hips hurt.” Id. Mr. Escobar then testified that he retired “at the end of 1993” to receive social security benefits. J.A. 21.

A month after the hearing, in February 2007, Mr. Escobar had a “muscles” exam and stomach exam to evaluate any functional impairment associated with his service-connected injury. The “muscles” examination report indicated that Mr. Es-cobar had retired in 1999 after working as a medical technologist. J.A. 33. The examiner noted that if Mr. Escobar was still working, his service-connected disability would limit his performance because he would be unable to lift more than fifty pounds, bend forward or carry more than fifty pounds. J.A. 34. The *955 examiner further noted that the Veteran would be able to perform his activities at a computer station. Id. The stomach examination report indicated that the Veteran’s service-connected gunshot wound had not left any sequelae, that the Veteran had retired in 1996, and that he was eligible for retirement by reason of age and work. J.A. 38-39.

Based on the record — including the February 2007 exams — the Board denied service connection for TDIU. More specifically, the Board determined “the Veteran’s service — connected disabilities do not preclude the Veteran from obtaining and sustaining substantially gainful employment. While the Veteran’s service-connected disabilities would limit him from heavy lifting and bending over, he would have the ability to work at a computer.” J.A. 54-55.

Mr. Escobar appealed the denial of a TDIU rating. In his appeal to the Veterans Court, Mr. Escobar argued that the Board erred by failing to “recognize that no medical opinion sufficiently addressed TDIU.” J.A. 5. However, the Veterans Court concluded “[t]he Board rendered its TDIU determination by relying on several medical reports describing Mr. Escobar’s employment situation and the occupational effects of his disabilities.” Id. Thus, a single judge of the Veterans Court affirmed the Board. Mr. Escobar appeals.

II.

This court’s jurisdiction to review the Veterans Court decision is defined by 38 U.S.C. § 7292. This court has exclusive jurisdiction to interpret statutory provisions and reviews the Veterans Court’s statutory interpretations without deference. 38 U.S.C. § 7292(c); Cook v. Prin-cipi, 353 F.3d 937, 938 (Fed.Cir.2003). Except to the extent that a constitutional issue is presented, this court may not review “a challenge to a factual determination,” or “a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2); Cook, 353 F.3d at 938-39.

As an initial matter, Mr. Escobar frames his objections to the adequacy of the VA’s medical opinions as a constitutional due process violation. However, it is well-established that an appellant’s mere characterization of an issue as constitutional “does not confer upon [this court] jurisdiction that [it] otherwise lack[s].” Heifer v. West, 174 F.3d 1332, 1335 (Fed.Cir. 1999). Mr. Escobar fails to show how having received a hearing and two separate medical opinions — that both the Board and Veterans Court determined contained sufficient detail — resulted in insufficient due process or a violation of his constitutional rights.

Finding no genuine constitutional issue, this court turns to Mr. Escobar’s arguments of alleged statutory or regulatory interpretation. First, Mr. Escobar argues that because the Board — as affirmed by the Veterans Court — failed to “recognize that no medical opinions sufficiently addressed TDIU,” the Veterans Court misinterpreted 38 U.S.C. § 5103A(d)(l) by failing to require an opinion “necessary to make a decision.” The duty to assist in Section 5103A(a)(l) obligates the VA to make reasonable efforts to assist the veteran in “obtaining evidence necessary to substantiate [a] claim.” 38 U.S.C. § 5103A(a)(l). In the case, as here, where the claim is for disability compensation, the duty to assist “shall include providing a medical examination or obtaining a medical opinion when such an opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(l) (emphasis added).

However, the Veterans Court neither interpreted Section 5103A(d)(l) nor expressly referenced it. And, contrary to *956 Mr. Escobar’s arguments, the Veterans Court did not impliedly interpret Section 5103A(d)(l) to mean that a medical opinion need not contain any explanation of the basis for the opinion provided. Instead, the Veterans Court concluded “[t]he Board rendered its TDIU determination by relying on several medical reports describing Mr. Escobar’s employment situation and the occupational effects of his disabilities.” J.A. 5. Thus, there is no statutory or regulatory interpretation at issue here — it is a factual question outside of this court’s jurisdiction.

Furthermore, Mr.

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Related

Prinkey v. Shinseki
735 F.3d 1375 (Federal Circuit, 2013)

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527 F. App'x 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/escobar-v-shinseki-cafc-2013.