Annie L. Mixson v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

ANNIE L. MIXSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7152

\-

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-1350, Judge Lawrence B.
Hagel.

## ON MOTION

Before RADER, Chief Judge, DYK and O'MALLEY, 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 Annie L. Mixson's appeal from a decision of

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the United States Court of Appeals for Veterans Claims
that denied her Department of Veterans Affairs benefits
for the cause of the death of her husband, World War II
veteran Woodrow W. Mixson.

Woodrow Mixson served on active duty in the United
States Army from March 1942 to September 1945. He
died in October 1980 from cardiopulmonary arrest due to
a massive antero-septal myocardial infarction. At the
time of his death, Mr. Mixson did not have any service-
connected disabilities.

Mrs. Mixson sought VA benefits for the cause of her
husband's death. She asserted Mr. Mixson was healthy
when he entered service but incurred respiratory prob-
lems, including sinusitis and nasal polyps, as a result of
serving in muggy climates overseas and being exposed to
poor health conditions that contributed to his death. In
support, she submitted statements from herself, Mr.
Mixson's brother and friends attesting that Mr. Mixson
was healthy upon entering service but returned with
respiratory problems.

The Board of Veteran's Appeals upheld the Depart-
ment's decision to deny Mrs. Mixson's claim. The Board
recognized it owed a heightened duty to consider the
evidence in light of Mr. Mixson's service records being
destroyed in the National Personnel Records Center fire
in July 1973. Nonetheless, the Board held the preponder-
ance of the evidence of record, including the lay state-
ments and testimony, was against the establishment of a
nexus between the cause of her husband's death-
cardiopulmonary arrest-and his respiratory problems
which allegedly occurred while in service.

In reaching its conclusion, the Board emphasized the
fact that Mr. Mixson did not seek post-service treatment
for his respiratory conditions until 1977, more than 30
years after discharge, which was highly probative evi-

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dence that the condition did not occur while in service.
The Board further stated that there was no medical
opinion attesting to a nexus between the veteran's cause
of death and an in-service condition or disability.

In her appeal to the Court of Appeals for Veterans
Claims, Mrs. Mixson primarily argued that the Board
improperly rejected the lay statements submitted as
competent evidence. The Court held that the Board did
err in categorically rejecting Mrs. Mixson's lay state-
ments. The court deemed that error harmless, however,
because her statement only established continued symp-
toms of respiratory problems.

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 its decision. This court may also entertain chal-
lenges 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 constitu-
tional question, this court lacks jurisdiction over chal-
lenges to factual determinations or laws or regulations as
applied to the particular case. 38 U.S.C. § 7292(d)(2).

In her informal brief to this court, Mrs. Mixson con-
cedes that this appeal does not involve an issue as to the
validity or interpretation of a statute or regulation or a
constitutional issue. Instead, the only argument raised by
her brief challenges whether she should have been
awarded benefits, which is at most a challenge to the
weighing of evidence. Because this court cannot consider
on appeal how the evidence of record was weighed in her
case, this court is without jurisdiction to address Mrs.

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MIXSON v. DVA

Mixson's argument. We thus agree with the Secretary
that this appeal must be dismissed.

Accordingly,
IT IS ORDERED THAT:

(1) The Secretary's motions are granted. The appeal
is dismissed.

(2) Each side shall bear its own costs.

FOR THE COURT

NOV 2 3 2011

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Annie L. Mixson
Steven M. Mager, Esq.
s19

Issued As A Mandate:

NOV 2 3 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
NOV 2 3 2011

JAN HORBALY
CLERK