Thacker v. Mansfield

• Court: Court of Appeals for the Federal Circuit
• Decided: October 25, 2007
• Docket: 2007-7225
• Status: Unpublished

Opinion

Note: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2007-7225

VICTOR W. THACKER,

Claimant-Appellant,

v.

GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

Respondent-Appellee.

Victor W. Thacker, of Gray Court, South Carolina, pro se.

Gregg M. Schwind, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, and Deborah A. Bynum, Assistant Director. Of counsel on the brief was David J. Barrans, Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge William A. Moorman NOTE: This disposition is nonprecedential.

___________________________

DECIDED: October 25, 2007 ___________________________

Before NEWMAN, RADER, and DYK, Circuit Judges.

PER CURIAM.

Victor W. Thacker (“Thacker”) appeals from the decision of the United States

Court of Appeals for Veterans Claims (“Veterans Court”). Thacker v. Nicholson, No. 04-

2092 (Vet. App. Feb. 28, 2007). The Veterans Court affirmed a decision of the Board of

Veterans’ Appeals (“Board”) denying Thacker’s claim for service connection for heart-

related health problems, including coronary artery disease and myocardial infarction.

Because this appeal involves only issues that fall outside this court’s jurisdiction, we

dismiss.

BACKGROUND

Thacker served in active military duty from September 1968 to August 1972 and

from July 1985 to October 1994. While in active service, in 1989, Thacker was exposed to an electric current and received a severe shock, for which he received medical

treatment. Thereafter, Thacker made numerous complaints of chest pain. Thacker was

diagnosed with possible angina in September 1990, while still in active military service.

Thacker suffered an inferior myocardial infarction in February 1997. He was diagnosed

with coronary artery disease in April 1998, and has since continued to suffer from heart-

related health problems.

Thacker filed a claim for service connection for his heart condition in September

1997. A Department of Veterans Affairs (“VA”) regional office (“RO”) denied Thacker’s

claim in January 1999. In May 2003, the Board concluded that two prior VA cardiac

examinations had not considered sufficiently whether any of Thacker’s heart problems

were related to his service, and, pursuant to the VA’s duty to assist, remanded the case

for further evaluation. In an opinion dated July 21, 2004, after Thacker’s third VA

medical exam, the Board upheld the VA’s conclusion that Thacker’s heart disability was

not service connected, and concluded that the VA had satisfied its duty to assist.

Thacker appealed to the Veterans Court, challenging the Board’s conclusion that

his VA cardiac exams had satisfied the VA’s duty to assist and asserting that the exams

failed to consider the possibility of nexus between his electrical shock and his cardiac-

related health problems. It found that Thacker had received three medical examinations

performed by the VA, at least one of which directly addressed the claimed connection

between the electric shock and his heart condition. The court noted that all three

examinations concluded that his heart condition was not service related. The Veterans

Court affirmed the Board’s decision, finding that the Board’s determination that there

2007-7225 2 had been no violation of the duty to assist was not clearly erroneous and was supported

by plausible evidence in the record. Thacker appeals.

DISCUSSION

We have jurisdiction to review “the validity of a decision of the [Veterans] Court

on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that

was relied on by the [Veterans] Court in making the decision.” 38 U.S.C. § 7292(a).

However, we “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.” 38 U.S.C. §

7292(d)(2).

Thacker primarily argues that the Veterans Court and the Board did not properly

weigh the medical evidence that his heart-related health problems were caused by the

electrical shock he suffered while in active service. This argument challenges the

factual determinations reached by the Board and found by the Veterans Court to be

supported by the record and not clearly erroneous, and is not within our jurisdiction.

Construing Thacker’s pro se submission liberally, Durr v. Nicholson, 400 F.3d

1375, 1380 (Fed. Cir. 2005), it appears that he may also raise the same duty to assist

argument that he made before the Veterans Court, asserting that his VA cardiac

examinations did not explore adequately the possibility of a connection between the

electrical shock and his heart-related health problems. The Veterans Court rejected the

factual premise of this argument, Thacker v. Nicholson, No. 04-2092, slip op. at 3, and

this court is without jurisdiction to review this factual determination.

Finally, Thacker asserts that he was not afforded an opportunity to appear in

person before the Board. While it is possible that such an argument could be liberally

2007-7225 3 construed to raise a Due Process challenge, Thacker’s argument in this regard fails to

raise a substantial constitutional claim because there is no constitutional right to appear

in person before the Board. Accordingly, this argument is insufficient to confer

jurisdiction upon this court. See Ferguson v. Principi, 273 F.3d 1072, 1076 (Fed. Cir.

2001) (holding veteran’s meritless argument invoking statutory interpretation insufficient

to confer jurisdiction on this court).

Thacker’s appeal is dismissed.

No costs.

2007-7225 4