Mark R. Gorton v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK R. GORTON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7083
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2834, Judge Coral Wong
Pietsch.
______________________
Decided: September 12, 2013
______________________
MARK R. G ORTON, of Gresham, Oregon, pro se.
J OSEPH E. ASHMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. D ELERY , Acting
Assistant Attorney General, J EANNE E. D AVIDSON, Direc-
tor, and F RANKLIN E. WHITE, J R., Assistant Director. Of
counsel on the brief were MICHAEL J. T IMINSKI, Deputy

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GORTON v. SHINSEKI 2
Assistant General Counsel, and ANNA E LAZA, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before N EWMAN, P ROST , and WALLACH , Circuit Judges.
P ER CURIAM .
Mark R. Gorton appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court) affirming the Board of Veteran’s Appeals’ (“Board”)
denial of service connection for Mr. Gorton’s spinal disa-
bility. Gorton v. Shinseki, No. 11-2834 2012 U.S. App. Vet.
Claims LEXIS 2478 at *13–14 (U.S. App. Vet. Cl. Dec. 20,
2012) (“Veterans Court Decision”). Because the issues
raised by Mr. Gorton on appeal require the application of
law to fact, we dismiss for lack of jurisdiction.
BACKGROUND
Mr. Gorton served in active service from February
1980 to February 1983. In 1982, during service, he un-
derwent a pilonidal cyst excision procedure. In July 2004,
the Department of Veterans Affairs (“VA”) Regional Office
(“RO”) in Portland, Oregon, denied Mr. Gorton service
connection for a spine disability he alleged was caused by
a spinal block injection during the cyst removal proce-
dure. Mr. Gorton appealed the decision to the Board.
After two Board remands, a VA examination was con-
ducted in April 2011 by a Board-certified orthopedic
surgeon. The examiner diagnosed Mr. Gorton with “spi-
nal stenosis and arthrosis of the cervical spine and some
degree of arthrosis developing in the lumbar spine as
well.” Veterans Court Decision at *2 (internal quotation
marks and citation omitted). The examiner noted that
Mr. Gorton’s service treatment records did not reflect any
lower back or neck complaints during service and that the
onset of Mr. Gorton’s back pain was post-service, in 1984,
while he was working at an automobile shop. The exam-

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GORTON v. SHINSEKI 3
iner concluded: “It is the opinion of this board certified
orthopedic surgeon that there is no evidence whatsoever
to link the condition of the cervical spine, thoracic spine or
lumbar spine to any event in active military service, and
certainly not to the result of any spinal anesthetic for
pilonidal cyst surgery.” Id. at *3–4 (internal quotation
marks and citation omitted). Relying on the examiner’s
medical opinion, the Board denied Mr. Gorton’s claim.
Mr. Gorton then appealed to the Veterans Court,
which affirmed the Board’s decision.
The Veterans Court first addressed Mr. Gorton’s ar-
gument that the Board failed to take into account certain
documents in the record, including Social Security Admin-
istration (“SSA”) records, a 2007 bone density test, a 2003
full-body magnetic resonance imaging (“MRI”), a 1984 VA
document written by a Doctor Frye, and a 1987 document
from the Roseburg VA Medical Center. The Veterans
Court held that because the appellant neither provided
citations to the record for these documents nor explained
how they would change the outcome of the Board decision,
there was no clear error by the Board.
The Veterans Court also considered Mr. Gorton’s ar-
gument that the Board failed to adequately consider
certain medical documents, specifically handwritten
surgery notes from 1982 and a 2003 document written by
a caretaker indicating that Mr. Gorton had received an
overdose of an anesthetic during his 1982 cyst removal
surgery. However, the Veterans Court concluded that the
Board was not required to independently discuss medical
statements indicating a possible overdose, because the
examiner’s opinion had already considered such a possi-
bility. Veterans Court Decision at *10. The examiner had
concluded: “‘It could only be rationally deduced that if the
spinal anesthetic was responsible for any back problems
or conditions, these symptoms would have manifested
themselves immediately after the spinal anesthetic, and

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GORTON v. SHINSEKI 4
not 4 or 5 years down the road.’” Veterans Court Decision
at *3 (quoting R. at 525).
Finally, Mr. Gorton argued that the Board failed to
discuss independent written materials suggesting that an
overdose of anesthetic could cause Mr. Gorton’s current
condition. However, the Veterans Court was unable to
consider this evidence because it was submitted after the
date of the Board decision that was under review and
thus not a part of the administrative record. Mr. Gorton
filed this timely appeal.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Pursuant to 38 U.S.C.
§ 7292(a), this court has jurisdiction to review “the validi-
ty of a decision of the [Veterans] Court on a rule of law or
of any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual mat-
ter) that was relied on by the [Veterans] Court in making
the decision.” 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). The Veterans Court’s legal determi-
nations are reviewed de novo. Cushman v. Shinseki, 576
F.3d 1290, 1296 (Fed. Cir. 2009).
On appeal, Mr. Gorton contends that the Board erro-
neously determined that there was no causal nexus
between service and his spinal injury. Specifically, Mr.
Gorton argues that an overdose of the anesthetic during
his pilonidal cyst excision was the cause of his spinal
stenosis. Mr. Gorton points to the independent medical
documents linking anesthetic overdose with his injury,
the 2007 bone density test, the 2003 MRI, X-rays, the
document by Doctor Frye, and the Roseburg VA document
to argue his case.

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GORTON v. SHINSEKI 5
None of Mr. Gorton’s contentions present an argu-
ment of legal error by the Veterans Court to give us
jurisdiction. Rather, Mr. Gorton challenges the Board’s
factual determination that Mr. Gorton’s injury was not
related to his service. To the extent that Mr. Gorton’s
appeal can be construed to challenge the Veterans Court’s
holding that the Board’s decision was supported by an
adequate statement of reasons, he contests the Veterans
Court’s application of law to the facts of this case. Be-
cause 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,” 38
U.S.C. § 7292(d)(2), Mr. Gorton’s appeal is dismissed for
lack of jurisdiction.
DISMISSED

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