Willie J. Johnson v. Robert Wilkie, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIE J. JOHNSON,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1376
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2970, Judge Michael P. Allen.
______________________
Decided: May 14, 2019
______________________
WILLIE J. J OHNSON, Gainesville, FL, pro se.
D ANIEL K ENNETH G REENE , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by J OSEPH H. HUNT , MARTIN F. HOCKEY , J R.,
ROBERT E DWARD K IRSCHMAN, J R.; MARTIE A DELMAN, BRIAN
D. G RIFFIN, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________

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JOHNSON v. WILKIE 2
Before L OURIE, L INN, and WALLACH , Circuit Judges.
P ER CURIAM.
Mr. Willie J. Johnson appeals from a decision of the
United States Court of Appeals for Veterans Claims (the
“Veterans Court”), which affirmed a determination of the
Board of Veterans’ Appeals (the “Board”) denying Johnson
service connection for his pulmonary and essential hyper-
tension. See Johnson v. Wilkie, No. 17-2970, 2018 WL
5003436 (Vet. App. Oct. 16, 2018) (“Decision”). Johnson as-
serts that the Veterans Court failed to address his argu-
ment that his hypertension is secondarily service-
connected through his heart condition. Because we lack
jurisdiction to decide this question, we dismiss the appeal.
BACKGROUND
Johnson served in the United States Marine Corps dur-
ing the Vietnam War, from August 1969 through April
1971. During this time, he served on ships that often
docked in Da Nang Harbor. Thus, the VA presumes that
he was exposed to herbicides. See 38 U.S.C. § 1116; Appel-
lee Br. 2. Both Johnson’s pre-induction examination in
June 1969 and his separation examination in April 1971
recorded normal pulmonary and cardiovascular function.
Johnson was later diagnosed with essential hypertension
in 1998 and pulmonary hypertension around 2003.
The regional office denied Johnson’s application for ser-
vice connection for essential and pulmonary hypertension
in 2004. The Board sustained that decision in February
2006. In 2009, the Veterans Court vacated the Board’s de-
cision and remanded to the Board for further proceedings.
The Board again denied service connection in 2013. Ulti-
mately, the Board denied service connection for both hy-
pertension claims, rejecting Johnson’s arguments that his
hypertension is service-connected on a secondary basis due
to his diabetes or another condition, but it remanded John-
son’s claim for service connection for anemia. See In re

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JOHNSON v. WILKIE 3
Johnson, No. 01-02 481, slip op. at 11–13 (Bd. Vet. App.
May 5, 2017) (“Board Decision”). The Board also, in a pre-
vious decision, remanded Johnson’s claims for service con-
nection for several other conditions, including ischemic
heart disease, for separate development at the regional of-
fice.
Johnson then appealed to the Veterans Court. He ar-
gued that the Board erred in failing to address his claim
that his hypertension is either presumptively service-con-
nected due to his conceded exposure to herbicides, see 38
U.S.C. § 1116, or secondarily connected through his heart
condition. The Veterans Court affirmed the Board’s deci-
sion because it found that Johnson’s arguments regarding
herbicide exposure and secondary connection through his
heart condition were not made to the Board, and hence he
failed to exhaust his remedy before the Board. Decision,
2018 WL 5003436, at *1–2; see Maggitt v. West, 202 F.3d
1370, 1377 (Fed. Cir. 2000); Scott v. McDonald, 789 F.3d
1375, 1379 (Fed. Cir. 2015).
Johnson then filed an appeal to this court.
D ISCUSSION
The scope of our review in an appeal from the Veterans
Court is limited. We may review a decision with respect to
a rule of law or interpretation of a statute or regulation
that was relied upon by the Veterans Court in making its
decision. 38 U.S.C. § 7292(a). But, except with respect to
constitutional issues, this Court “may not review (A) a chal-
lenge to a factual determination, or (B) a challenge to a law
or regulation as applied to the facts of a particular case.”
Id. § 7292(d)(2); see also Sneed v. McDonald, 819 F.3d 1347,
1350–51 (Fed. Cir. 2016).
Johnson argues on appeal that the Veterans Court
erred in not addressing his claim of service connection on a
secondary basis through his heart condition. Furthermore,
Johnson argues that the Veterans Court erred in not

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JOHNSON v. WILKIE 4
holding that his heart condition, for which he has not yet
been granted service connection, is itself secondarily ser-
vice-connected through his anemia condition. In response,
the government contends that this court does not have ju-
risdiction to address either argument because the Veterans
Court’s application of issue exhaustion is essentially an ap-
plication of law to fact. The government further argues
that Johnson’s second argument is itself waived because it
was never presented to the Veterans Court, and, in any
case, only concerns a factual determination that lies out-
side of our statutory jurisdiction.
We agree with the government that we lack jurisdic-
tion to decide this appeal. We have held that the Veterans
Court’s use of issue exhaustion “is largely a matter of ap-
plication of law to fact, a question over which we lack juris-
diction.” Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed.
Cir. 2016) (citing Cook v. Principi, 353 F.3d 937, 939 (Fed.
Cir. 2003)). This case involves no exception to that general
rule. The Veterans Court found as a factual matter that
Johnson did not argue to the Board that either his essential
or pulmonary hypertension is secondarily connected
through his heart condition. We do not possess jurisdiction
to review such a finding. See Barney v. Shinseki, 464 F.
App’x 884, 885 (Fed. Cir. 2012) (no jurisdiction “to review
the factual determination of service connection” (citing
Johnson v. Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991))).
Johnson’s second contention, that his heart condition
should be considered service-connected through his anemia
condition, even if not waived, similarly presents a factual
determination that we lack jurisdiction to address.
CONCLUSION
We have fully considered Johnson’s arguments but find
them unpersuasive. The appeal is dismissed for lack of ju-
risdiction.
DISMISSED

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JOHNSON v. WILKIE 5
COSTS
No costs.

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