Mary A. Bizzard v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARY A. BIZZARD,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7144
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 09-4562, Chief Judge Bruce
E. Kasold.
____________________________
Decided: November 10, 2011
____________________________
M ARY A. B IZZARD , of Richmond Hills, Georgia, pro se.
AUSTIN M. FULK , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. D AVIDSON , Director, and CLAUDIA
BURKE, Assistant Director.

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BIZZARD v. DVA 2
__________________________
Before RADER, Chief Judge, and LOURIE and M OORE,
Circuit Judges.
PER C URIAM.
Mary Bizzard appeals from the decision of the United
States Court of Appeals for Veterans Claims (“the Veter-
ans Court”) affirming the denial by the Board of Veterans’
Appeals (“the Board”) of her claim for dependency and
indemnity compensation for the death of her husband
based on an injury to her husband’s left knee. Bizzard v.
Shinseki, No. 09-4562, 2011 WL 835114 (Vet. App. Mar. 8,
2011) (“Bizzard II”). Because we conclude that Bizzard’s
challenges are outside the scope of our jurisdiction, we
dismiss.
As discussed in a prior appeal to the Veterans Court,
Bizzard’s husband served on active duty between January
and August 1977. Bizzard v. Shinseki, No. 07-2123, 2009
WL 1679442, at *1 (Vet. App. June 17, 2009) (“Bizzard I”).
During his service, Bizzard’s husband suffered an injury
to his left knee and underwent treatment for knee pain
between March and June 1977. Id. The Department of
Veterans Affairs (“DVA”) awarded him service connection
for his injured left knee with a 10 percent disability rating
in September 1977. Id. That rating was subsequently
increased to 20 percent in July 1978. Id. Following
surgery on his knee in 1979, he was temporarily awarded
a 100 percent rating. Id.
In July 1983, Bizzard’s husband died as a result of a
motor vehicle accident while driving a truck. Id. Bizzard
sought Dependency and Indemnity Compensation (“DIC”)
pursuant to 38 U.S.C. § 1318, alleging that the service-
connected knee injury was the cause of the accident. Id.
That claim was denied in October 1983 due to a lack of

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BIZZARD v. DVA 3
evidence establishing that his death was the result of a
service-connected disability. Id. She did not appeal that
decision. Id.
In later proceedings seeking to reopen her claim for
DIC based on clear and unmistakable error (“CUE”),
Bizzard submitted three letters from Dr. James Butler, a
physician, in support of her claim. Id. at *1-2. Dr. But-
ler’s letters stated that Mr. Bizzard’s knee condition
caused the accident that led to his death because it would
have prevented him from operating the clutch and brake
of the truck when suddenly braking. DVA Physician Dr.
John C. Mueller, on the other hand, reviewed the claim
and submitted his own statement that Mr. Bizzard’s
“knee injury cannot be connected to his accident without
resorting to unfounded speculation.” Id. at *2.
On remand from the prior Veterans Court appeal, the
Board held that the letters were new and material evi-
dence warranting reopening the claim, but also made a
factual finding that “[t]he Veteran’s service-connected left
knee disability did not cause the traffic accident that
resulted in his death.” A.7. While the Board found that
the medical records “show beyond question that he had
global instability of the knee, which would have been very
painful during a pivot shift,” the Board ultimately agreed
with Dr. Mueller, noting that “nobody knows whether the
Veteran tried to stop his truck from hitting the vehicle in
front of him; there will never be any records that corrobo-
rate [Dr. Butler’s] theory or any other theory anyone
proposes.” A.15-16. The Board then denied Ms. Bizzard’s
claims.
On appeal, the Veterans Court affirmed the Board’s
determination. Bizzard II, at *1-2. Succinctly summariz-
ing the Board’s determination, the Veterans Court stated
that the Board’s decision “rests on its view that [Dr.

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BIZZARD v. DVA 4
Butler’s] opinion is premised on pure speculation, as there
was no evidence that the accident was caused in this way,
as opposed to the result of fatigue, bad weather, bad
brakes, or any number of other reasons.” Id. at *1.
Bizzard then timely appealed.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any inter-
pretation thereof [by the Veterans Court] . . . , and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” Id.
§ 7292(c). We may not, however, absent a constitutional
challenge, “review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2). We gener-
ally lack jurisdiction to review challenges to the Board's
factual determinations. See, e.g., Johnson v. Derwinski,
949 F.2d 394, 395 (Fed. Cir. 1991).
While Bizzard spends much of her informal brief dis-
cussing the evidence relating to her husband’s injury and
treatment, Bizzard mainly argues that the Veterans
Court failed to give adequate weight to the evidence she
submitted, including the letters submitted by Dr. Butler.
She also faults the Veterans Court for giving improper
weight to the statement of Dr. Mueller. While Bizzard
argues that the Veterans Court decision did involve
interpretation of a regulation or statute, she does not
identify any such regulation or statute. Bizzard concedes
that the Veterans Court decision did not decide a consti-
tutional issue.
The government responds that we lack jurisdiction to
review the Veterans Court decision in this case because

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BIZZARD v. DVA 5
Bizzard simply reargues factual issues (or applications of
law to fact). According to the government, Bizzard is
merely arguing that the Veterans Court failed to give
proper weight to the material she submitted in support of
her DIC claim.
We agree with the government that we lack jurisdic-
tion. Bizzard’s appeal raises only factual disputes and
arguments regarding the application of law to fact. While
Bizzard cites a number of cases, statutes, and regulations,
she does not argue that the Veterans Court addressed
their validity or incorrectly interpreted them. Instead,
she merely challenges the weight the various Board and
Veterans Court decisions afforded the evidence.
The Board examined the submitted evidence, includ-
ing the letters from Dr. Butler and Dr. Mueller. Weighing
the evidence, the Board agreed with Dr. Mueller that Dr.
Butler’s opinion on the cause of the accident was specula-
tive. We lack jurisdiction to review the weight given to
evidence by the Board and Veterans Court. E.g., Maxson
v. Gober, 230 F.3d 1330, 1332 (Fed. Cir. 2000) (“The
weighing of this evidence is not within our appellate
jurisdiction.”). Therefore, the determination that Dr.
Butler’s opinion regarding the cause of Bizzard’s hus-
band’s death was speculation and that there was no
evidence of a service connection is beyond our purview.
We have considered Bizzard’s remaining arguments
and do not find them persuasive as they are similarly
fact-based disagreements. Bizzard’s challenges on appeal
therefore do not fall within the scope of 38 U.S.C. § 7292.
Accordingly, we dismiss.
DISMISSED
COSTS
No costs.

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