Deborah S. Aznar v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential.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

DEBORAH S. AZNAR,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7183

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-420, Judge Robert N.
Davis.

ON MOTION

Before NEWMAN, LINN, and REYNA, Circuit Judges.
PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and to dismiss Deborah
S. Aznar's appeal from the United States Court of Appeals

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for Veterans Claims' judgment in Aznar v. Shinseki, 10-
420, for lack of jurisdiction.

By way of background, Aznar served on active duty
from March 1977 to November 1979. She has been receiv-
ing entitlement to Department of Veteran Affair's disabil-
ity compensation benefits for a low back disability since
October 2000 at a 10% disability rating award.

In 2004, Aznar sought an increased disability rating,
a claim which was denied by a Department regional office.
The Board of Veterans' Appeals affirmed that decision,
referencing the report of a VA medical examiner who
suspected Aznar of malingering, noting she had a relaxed
posture while in the waiting room, but exhibited signifi-
cant decreased motion with marked grimacing with all
movement during the examination.

The Board also noted that the credible evidence of re-
cord, which included examination demonstrating full
range of motion and normal spinal curvature, did not
meet the criteria for a higher rating award. The Court of
Appeals for Veterans Claims affirmed the Board's deci-
sion, concluding that the Board did not err in doubting
Aznar's credibility.

Our review of Veterans Court decisions is limited by
statute. See Yates v. West, 213 F.3d 1372, 1373-74 (Fed.
Cir. 2000). By statute, our jurisdiction over appeals from
the Veterans Court is limited to those appeals that chal-
lenge the validity of a decision of the Veterans Court with
respect to a rule of law or the validity of any statute or
regulation, any interpretation thereof, or that raise any
constitutional controversies. See 38 U.S.C. § 7292. We do
not have jurisdiction to hear appeals challenging deter-
minations or the application of law to the facts of a par-
ticular case, unless there is a constitutional issue present.
See 38 U.S.C. § 7292(d)(2).

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Aznar seeks review of the Court of Appeals for Veter-
ans Claims' decision. In her informal brief, however,
Aznar indicates that her appeal does not seek to challenge
a constitutional issue, the validity or interpretation of a
statute or regulation, or any other legal issue addressed
below.

Aznar instead contends that she "doesn't feel that all
of the evidence was considered on the same level," noting
that the "examiner thought she was lying." This court,
however, has held in analogous cases that "whether lay
evidence is competent and sufficient in a particular case is
a fact issue," Jandreau v. Nicholson, 492 F.3d 1372, 1377
(Fed. Cir. 2007), and thus outside our limited jurisdic-
tional review. For the same reasons, this court does not
have jurisdiction to review Aznar's other challenges
regarding the VA medical examiner's opinion, which only
challenge issues of fact or application of law to fact.

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Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motions are granted.

(2) Each side shall bear its own costs.

FOR THE COURT

JAN 13 2012

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Deborah S. Aznar
Antonia R. Soares, Esq.
$20

Issued As A Mandate:

JAN 13 2012

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JAN 13 2012

JAN HORBALY
CLERK