Jasper Boggs, Jr. v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JASPER BOGGS, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7101
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1022, Judge Lawrence B.
Hagel.
___________________________
Decided: December 8, 2010
___________________________
JASPER BOGGS , JR, of Wamego, Kansas, pro se.
M EREDYTH COHEN H AVASY, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent-appellee. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. D AVIDSON , Direc-

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BOGGS v. DVA 2
tor, and BRIAN M. SIMKIN , Assistant Director. Of counsel
on the brief was MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, Office of the General Counsel, United
States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before BRYSON , G AJARSA, and LINN , Circuit Judges.
PER CURIAM.
D ECISION
Jasper Boggs, Jr., appeals from a decision of the Court
of Appeals for Veterans Claims (“the Veterans Court”)
denying him benefits for the claimed residual effects from
treatment with a single dose of lysergic acid diethyla-
mide-25 (“LSD-25”) at a Veterans Administration (“VA”)
medical facility. We dismiss his appeal for lack of juris-
diction.
BACKGROUND
1. Mr. Boggs served on active duty in the United
States military from May 1953 to April 1955. Between
1962 and 1967, he was admitted four times to VA medical
facilities, where he was diagnosed at various points with
alcoholism, a duodenal ulcer, chronic and severe anxiety
reaction, mild hysterical features, inadequate personality,
and a predisposition to a borderline personality. In
September 1967, Mr. Boggs was again admitted to a VA
facility complaining of various conditions including nerv-
ousness and restlessness. During his hospitalization, he
signed a consent form and orally consented to participate
in an experimental treatment study involving the admini-
stration of LSD-25. On October 10, 1967, Mr. Boggs was
given one dose of LSD-25. He reported no immediate

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BOGGS v. DVA 3
adverse effects. Against his doctor’s wishes, Mr. Boggs
left the hospital on October 15 because one of his children
was ill. A subsequent progress report dated October 23
noted “normal social behavior.”
In December 1967, Mr. Boggs was briefly admitted to
a VA facility complaining of nervous tension and depres-
sion. The possibility of additional LSD treatment was
discussed at that time, but he was not given any further
LSD then or at any time thereafter. In 1968, Mr. Boggs
was admitted to a VA facility for alcohol detoxification. In
1969, he was diagnosed with a recurrent duodenal ulcer
and chronic undifferentiated schizophrenic reaction.
Between 1972 and 1981, he was admitted to VA facilities
six times and diagnosed with recurrent peptic ulcer
disease, anxiety neurosis, chronic alcoholism, chronic
anxiety reaction, adult situational reaction with associ-
ated severe anxiety, and organic brain syndrome.
In the decades following his LSD treatment, Mr.
Boggs received several medical diagnoses. A few of those
diagnoses suggested that Mr. Boggs may have suffered
long-term adverse effects from the LSD treatment. Those
effects were variously termed “post-LSD syndrome,”
“post-hallucinogen perception disorder,” and “hallucino-
gen persisting perception disorder.” Other treating
physicians rejected the view that any of his conditions
were related to the LSD treatment. An independent
medical examination (“IME”) performed in 2003 at the
request of the Board of Veterans’ Appeals concluded that
the likelihood that the LSD treatment had contributed to
any of Mr. Boggs’s disabilities was less than 50 percent.
2. Mr. Boggs sought compensation under 38 U.S.C. §
1151, contending that his disabilities were caused by
improper medical care by the VA in administering LSD to

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BOGGS v. DVA 4
him in 1967. The VA regional office and the Board of
Veterans’ Appeals both rejected his claim. Mr. Boggs
subsequently sought to reopen his claim, but his request
to reopen was rejected by the regional office, the Board,
the Veterans Court, and this court. See Boggs v. West,
188 F.3d 1335 (Fed. Cir. 1999).
In December 1999, Mr. Boggs again attempted to re-
open his claim. After the regional office and the Board
denied relief, the Veterans Court remanded the case to
the Board on the ground that the Board’s decision was not
supported by an adequate assessment of the evidence of
record. On remand, the Board ordered the independent
medical examination and, after receiving the IME results,
remanded the case to the regional office. After further
proceedings, the regional office denied Mr. Boggs’s claim
on the merits, and Mr. Boggs again appealed to the
Board.
In December 2007, the Board affirmed the denial of
Mr. Boggs’s claims. The Board determined that the
preponderance of the evidence showed that Mr. Boggs’s
disabilities were not the result of his LSD treatment and
that there was accordingly no basis on which to award
benefits. The Board noted that the medical evidence in
the record was “extensive, somewhat inconsistent, and
complicated,” but concluded that the diagnoses that
raised the possibility that Mr. Boggs’s disability was
related to his LSD treatment were either “speculative and
inconclusive” or “conclusory.” In contrast, the Board
noted, several of the medical opinions stated categorically
that Mr. Boggs’s disabilities were not caused by the
treatment he received in 1967. The Board placed particu-
lar weight on the IME report, which did not altogether
dismiss the possibility of treatment-related disability, but
found it less than 50 percent likely. The Board found the

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BOGGS v. DVA 5
IME report to be highly persuasive, thorough, and co-
gently reasoned in a way that the contrary opinions were
not. The Board stated that it was not persuaded to the
contrary by medical articles submitted by Mr. Boggs or by
statements from Mr. Boggs and his wife regarding the
onset of his symptoms.
The Veterans Court affirmed, holding that the Board
did not clearly err in finding that a preponderance of the
evidence weighed against Mr. Boggs’s claim that his
disabilities were caused by the LSD treatment. The court
noted that the Board had thoroughly examined the rele-
vant evidence and explained why it was persuaded that
Mr. Boggs did not have a treatment-related disability.
The court expressed concern about the fact that the Board
did not discuss the finding in the IME report that Mr.
Boggs had not given adequately informed consent to the
LSD-25 treatment as required under 38 C.F.R. § 17.32.
However, the court found that the Board’s error was
nonprejudicial in light of the Board’s well-supported
conclusion that Mr. Boggs had not incurred any disability
as a result of the treatment.
Discussion
Mr. Boggs states that the Veterans Court “did not fol-
low” federal statutes and regulations in reaching its
decision, and he asks us to review all of the relevant
evidence in his case. Mr. Boggs does not make clear
which statutes and regulations he claims were not fol-
lowed. In any event, his claim before the Veterans Court
and before us appears to be predicated entirely on a
challenge to the Board’s evaluation of the evidence before
it, a purely factual matter or, at most, an issue of the
application of undisputed legal standards to the facts of
this case. Before the Veterans Court, he alleged only that

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BOGGS v. DVA 6
the Board made erroneous findings of fact and errone-
ously applied 38 C.F.R. §§ 3.361 and 17.32 to the facts of
his case. The Veterans Court did not adopt any interpre-
tation of a statute, regulation, or other rule of law in its
opinion.
By statute, this court lacks jurisdiction to review a
challenge to a factual determination or a challenge to a
law or regulation as applied to the facts of a particular
case, except to the extent that an appeal presents a con-
stitutional question. 38 U.S.C. § 7292(d); Prenzler v.
Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). Mr.
Boggs’s appeal before this court raises purely factual
questions, it does not challenge any specific legal ruling
by the Veterans Court, and it does not raise a constitu-
tional question. It thus does not present any issue that
we have jurisdiction to decide. Because the appeal pre-
sents no issue falling within our statutory jurisdiction, we
are required to dismiss Mr. Boggs’s appeal.1
No costs.
DISMISSED
1 To the extent that Mr. Boggs’s appeal may be in-
terpreted as challenging the Board’s treatment of the
consent issue as nonprejudicial error, we lack jurisdiction
to review that ruling as well. Newhouse v. Nicholson, 497
F.3d 1298, 1302 (Fed. Cir. 2007).

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