Michael L. Fox v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MICHAEL L. FOX,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7071
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 07-3797, Judge Alan G.
Lance, Sr.
___________________________
Decided: October 7, 2010
___________________________
M ICHAEL L. FOX, of Wayland, Missouri, pro se.
K AREN V. G OFF, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. D AVIDSON , Director, and MARTIN

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FOX v. DVA 2
F. H OCKEY, JR., Assistant Director. Of counsel on the
brief was DAVID J. BARRANS , Deputy Assistant General
Counsel, Office of the General Counsel, United States
Department of Veterans Affairs, of Washington, DC.
__________________________
Before DYK , M AYER, and MOORE, Circuit Judges.
Per Curiam.
Michael L. Fox appeals from a decision of the U.S.
Court of Appeals for Veterans Claims (Veterans Court),
Fox v. Shinseki, No. 07-3797 (Vet. App. Feb. 16, 2010),
affirming a decision by the Board of Veterans’ Appeals
(Board) denying Mr. Fox’s claim for entitlement to service
connection for urticaria. For the reasons discussed below,
we dismiss for lack of jurisdiction.
Mr. Fox served in the Iowa National Guard from 1985
to 1997. He served on active duty from January 1986 to
April 1986 and from January 1991 to June 1991, and he
had active duty training during August 1992. Mr. Fox’s
service and private medical records reflect multiple
treatments for urticaria, an allergic skin disorder. How-
ever, the records contain conflicting information as to
when Mr. Fox’s urticaria first occurred.
In December 1996, Mr. Fox filed an Application for
Compensation or Pension for, among other things, chronic
urticaria. The Department of Veterans Affairs (VA)
Regional Office (RO) issued a rating decision in October
1997 denying service connection for Mr. Fox’s urticaria.
Mr. Fox underwent multiple VA medical examinations
following this decision; the RO issued multiple State-
ments of the Case and Supplemental Statements of the
Case, each denying service connection for Mr. Fox’s urti-
caria. Mr. Fox appealed to the Board, and in December

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FOX v. DVA 3
2004 the Board remanded his claim to the RO for addi-
tional development.
The RO issued a new Supplemental Statement of the
Case in November 2006, again denying service connection
for urticaria. Mr. Fox appealed to the Board. The Board
found that the record contained no evidence showing that
Mr. Fox’s urticaria began during, was causally related to,
or was aggravated by, his active service. Accordingly, the
Board denied Mr. Fox’s claim of service connection for
urticaria.
Mr. Fox appealed to the Veterans Court, arguing that
VA failed to obtain records from his service in the Na-
tional Guard from 1986 to 1992. Mr. Fox also argued that
the Board failed to consider all of his medical records,
improperly weighed the evidence of record, and improp-
erly provided its own medical opinion. The Veterans
Court observed that the record contained medical records
from the 1986 to 1992 time period and that Mr. Fox did
not specify what documents, if any, were missing. There-
fore, the Veterans Court held that VA satisfied its duty to
assist in obtaining Mr. Fox’s records. The Veterans Court
noted that Mr. Fox did not point to any relevant evidence
that the Board failed to consider and, citing Gonzales v.
West, 218 F.3d 1378, 1381 (Fed. Cir. 2000), observed that
the Board is presumed to have reviewed all evidence of
record absent specific evidence to the contrary. Thus, the
Veterans Court found no error in the Board’s review of
the evidence of record. Finally, the Veterans Court ob-
served that Mr. Fox had not identified any medical opin-
ion proffered by the Board and held that Mr. Fox failed to
present any argument for the court to entertain on that
point. The Veterans Court affirmed the Board’s decision.

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FOX v. DVA 4
Mr. Fox appeals the Veterans Court’s judgment. Un-
der 38 U.S.C. § 7292(c), our jurisdiction over Veterans
Court decisions is limited. We may 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
(other than a determination as to a factual matter) that
was relied on by the Court in making the decision.” Id.
§ 7292(a). However, absent a constitutional issue, we
cannot review factual determinations or “challenge[s] to a
law or regulation as applied to the facts of a particular
case.” Id. § 7292(d)(2).
On appeal, Mr. Fox asserts that the Veterans Court
erred by offering a medical opinion. However, Mr. Fox
fails to identify any such medical opinion. To the extent
Mr. Fox appeals the Veterans Court’s determination that
he failed to adequately present this argument below, this
is a challenge to the Veterans Court’s application of law to
fact that we lack jurisdiction to review. See 38 U.S.C. §
7292(d)(2). Mr. Fox also asserts that the Veterans Court
failed to consider a 2003 letter from his doctor that alleg-
edly shows that his urticaria began in 1987, and he asks
this court to take into consideration the timing of his
urticaria outbreaks and the medication he was taking.
Mr. Fox does not challenge any rule of law applied by the
Veterans Court, nor does he raise any issue concerning
the validity or interpretation of a statute or regulation
implicated by the Veterans Court’s decision. Because Mr.
Fox fails to allege any legal error in this case and we lack
jurisdiction to review Mr. Fox’s factual challenges, we
must dismiss Mr. Fox’s appeal for lack of jurisdiction.
DISMISSED

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FOX v. DVA 5
COSTS
No costs.

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