Edward Z. Camillo v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7051
EDWARD Z. CAMILLO,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in
07-1606, Judge Lawrence B. Hagel.
ON MOTION
Before NEWMAN, RADER, and SCHALL, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir.
R. 27(f) and dismiss for lack of jurisdiction Edward Z. Camillo's appeal from a decision
of the United States Court of Appeals for Veterans Claims affirming the Board of
Veterans' Appeals (Board) decision that denied Camillo entitlement to Department of
Veterans Affairs disability compensation benefits for the residuals of a brain tumor.
Camillo served on active duty in the U.S. Army from September 1960 to
September 1962. His induction examination noted no prior neuropsychiatric treatment
or treatment relating to a brain tumor. However, his induction examination report noted
a prior history of sleepwalking, headaches, and dizziness. In June 1981, Camillo filed
an application with the Department for disability compensation benefits for residuals of a
brain tumor, which had been diagnosed after his discharge. A Department regional

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office (RO) denied Camillo's claim as pre-existing his entry into service. The RO relied
predominantly on medical records between his discharge and his application that
indicated Camillo had experienced headaches, naseua, and dizziness throughout
childhood resulting in among other problems a four-month absence from school.
Following two unsuccessful attempts by Camillo to reopen his claim based on
new and material evidence, Camillo's claim was reopened for adjudication in September
2004. In March 2005, he underwent examination by a Department medical examiner
who opined that Camillo's symptoms "were at least as likely as not related to the tumor
when he entered the service and was in the service." The examiner further noted that
Camillo had a "very slowly progressing tumor that had nothing to do with him being in
service."
The Department denied Camillo's claim for disability benefits based primarily on
the Department medical examiner's opinion. Camillo appealed the Departments
decision to the Board. Camillo also submitted in support of his claim a report from his
private physician, opining that "I am certain that it is more likely tha[n] not that
[Camillo's] brain tumor did not predate his service time," and that his tumor "significantly
advanced/progressed permanently in service."
The Board sought an independent medical examination to reconcile what it
stated to be two conflicting opinions regarding the onset and development of Camillo's
brain tumor. In November 2006, the independent medical examiner opined that
Camillo's tumor began growth before his entry into service and that while in service the
tumor's growth was gradual and unremarkable. Relying on the independent examiner's
opinion and the Department's medical examiner's opinion, the Board found that
Camillo's brain tumor clearly and unmistakably pre-existed service and was not
aggravated by service, thus rebutting the presumption of soundness.
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On appeal at the Court of Appeals for Veterans Claims, Camillo argued through
counsel that by seeking the independent medical examiner's opinion the Board was
improperly obtaining unnecessary additional evidence against the claim. Camillo further
argued that the Board failed to provide sufficient justification for its determination that an
independent medical examiner's opinion was warranted.
In its December 1, 2008 decision, the Court of Appeals for Veterans Claims
sustained the Board's denial of entitlement to compensation benefits, rejecting each of
Camillo's arguments. Regarding the independent medical examiner's opinion, the court
held that the Board was within its discretion in ordering an independent medical
examination in light of the conflicting medical evidence. The court further held that the
Board had correctly determined that there was clear and unmistakable evidence
rebutting the presumption of soundness by demonstrating that Camillo's brain tumor
pre-existed service and was not aggravated by service. Camillo filed a timely appeal
seeking review by this court.
In his brief Camillo argues that the Board violated 38 C.F.R. § 3.304(c) by
securing an independent medical examiner's opinion when there was evidence
sufficient for the Board to determine whether his claim was eligible for service
connection. He contends that there is no probative value in the Department medical
examiner's report because that examiner never met with Camillo, and because there
was only one probative medical opinion, there was no conflict between medical opinions
to be resolved by an independent medical opinion.
The court's jurisdiction to review decisions of the Court of Appeals for Veterans
Claims is limited. See Forshey v. Principi 284 F.3d 1335, 1338 (Fed. Cir. 2002) (en
banc). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the
validity of any statute or regulation, or an interpretation thereof relied on by the court in
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its decision. This court may also entertain challenges to the validity of a statute or
regulation, and to interpret constitutional and statutory provisions as needed for
resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal
presents a constitutional question, this court lacks jurisdiction over challenges to factual
determinations or laws or regulations as applied to the particular case. 38 U.S.C. §
7292(d)(2).
Although Camillo asserts that his arguments involve an issue of regulatory
interpretation, this court must look beyond the appellant's characterization of the issues
to determine whether they fall within the jurisdiction of this court. Flores v. Nicholson
476 F.3d 1379, 1382 (Fed. Cir. 2007); Helfer v. West 174 F.3d 1332, 1335 (Fed. Cir.
1999). Here, Camillo's arguments are aimed at how the Board and the court weighed
the medical opinions and applied the law to the facts of his claim. Because we agree
with the Secretary that this court lacks jurisdiction, we must dismiss Camillo's appeal.
Accordingly,
IT IS ORDERED THAT:
The Secretary's motions are granted.
Each side shall bear its own costs.
FOR THE COURT
JUN -3 2009 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Edward Z. Camillo
James P. Connor, Esq. JUN 03 2008
s19 JAN 1114u:1a
JUN -3 2009 CLERK
ISSUED AS A MANDATE:
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