Eugene Newcombe v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EUGENE NEWCOMBE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1849
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-5393, Senior Judge William A.
Moorman.
______________________
Decided: April 8, 2021
______________________
ADAM R. L UCK , Gloverluck, LLP, Dallas, TX, for claim-
ant-appellant.
ANN M OTTO , Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JEFFREY
B. CLARK , ALLISON K IDD -M ILLER, ROBERT EDWARD
K IRSCHMAN , JR.; Y. KEN LEE , ANDREW J. STEINBERG , Office
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NEWCOMBE v. MCDONOUGH 2
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before NEWMAN , LOURIE, and D YK , Circuit Judges.
PER C URIAM.
Eugene Newcombe appeals a decision of the Court of
Appeals for Veterans Claims (“Veterans Court”) that af-
firmed the Board of Veterans’ Appeals’ (“Board”) denial of
service connection for left forefoot varus. We dismiss for
lack of jurisdiction.
BACKGROUND
Mr. Newcombe served on active duty in the U.S. Army
from August 1974 to August 1977 and from April 1978 to
April 1995. In June 2013 and July 2014, Mr. Newcombe
submitted claims for service connection for left forefoot
varus1 and flat feet. The regional office denied Mr. New-
combe’s claims for those conditions, and Mr. Newcombe
submitted Notices of Disagreement with the regional of-
fice’s decisions. On February 27, 2015, the regional office
continued its denial for left forefoot varus. Mr. Newcombe
appealed that denial to the Board in April 2015.
1 In the proceedings before the regional office, Board,
and Veterans Court, Mr. Newcombe and the VA referred to
the condition for the claim on appeal as “left foot joint dam-
age,” “joint damage to the left foot,” “left forefoot varus,”
and “left forefoot varus valgus” interchangeably. For con-
sistency, we refer to the condition for the claim on appeal
as left forefoot varus.
“Varus” describes “an abnormal position in which a
part of a limb is turned inward toward the midline.” Varus,
Mosby’s Medical Dictionary (10th ed. 2017).
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NEWCOMBE v. MCDONOUGH 3
Meanwhile, with respect to Mr. Newcombe’s claim for
service connection for flat feet, the regional office requested
an examination for various conditions, including “Foot
Conditions including Flatfoot (pes planus).” J.A. 59–61.
The examination was conducted on June 8, 2015. The ex-
aminer diagnosed Mr. Newcombe with flat feet, hallux val-
gus,2 and a formerly fractured 5th right metatarsal. As the
Veterans Court determined, “[t]he examiner reported that
there was no ‘marked varus deformity,’ and no ‘foot [inju-
ries] or other foot conditions not already described.’” Id.
at 3 (quoting id. at 70). The regional office granted
Mr. Newcombe’s claim for service connection for flat feet on
appeal on August 3, 2015, and there is no issue on appeal
with respect to service connection for flat feet.
On September 13, 2018, the Board denied Mr. New-
combe’s claim for left forefoot varus. The Board found that
“a preponderance of the evidence [was] against finding that
[Mr. Newcombe] currently has, or has had since he filed his
claim, the specific condition of forefoot varus.” J.A. 115.
The Board noted that “[l]eft forefoot varus was . . . not di-
agnosed on VA examination in June 2015,” and while other
medical treatment records indicated previous diagnoses for
left forefoot varus, they did not indicate a current diagnosis
for that condition. Id. at 114–15; see also id. at 70.
Mr. Newcombe appealed the Board’s decision denying
service connection for left forefoot varus to the Veterans
Court. The Veterans Court affirmed.3
2 “Hallux valgus” is a “deformity in which the great
toe is angled away from the midline of the body towards
other toes.” Hallux valgus, Mosby’s Medical Dictionary
(10th ed. 2017).
3 Mr. Newcombe appealed other claims to the Veter-
ans Court that are not at issue here.
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NEWCOMBE v. MCDONOUGH 4
Mr. Newcombe appeals.
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 interpreta-
tion thereof [by the Veterans Court] . . . and to interpret
constitutional and statutory provisions, to the extent pre-
sented and necessary to a decision.” Id. § 7292(c). We may
not, however, absent a constitutional challenge, “review (A)
a challenge 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).
Under the duty to assist, “[t]he Secretary [of the VA]
shall make reasonable efforts to assist a claimant in obtain-
ing evidence necessary to substantiate the claimant’s claim
for a benefit under a law administered by the Secretary.”
38 U.S.C. § 5103A(a)(1). “In the case of a claim for disabil-
ity compensation, the assistance provided by the Secretary
. . . shall include providing a medical examination or ob-
taining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.” Id.
§ 5103A(d)(1). In the absence of an interpretation of stat-
ute or regulation, whether the VA has satisfied its duty to
assist in a particular case is generally a question of fact, see
DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008),
or of application of law to fact, see Glover v. West, 185 F.3d
1328, 1333 (Fed. Cir. 1999).
Mr. Newcombe argues that the Board erred under 38
U.S.C. § 7104(a) by not considering the duty to assist under
38 U.S.C. § 5103A. Section 7104(a) provides, in relevant
part, that “[d]ecisions of the Board shall be based on the
entire record in the proceeding and upon consideration of
all evidence and material of record and applicable provi-
sions of law and regulation.” 38 U.S.C. § 7104(a).
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NEWCOMBE v. MCDONOUGH 5
Essentially, Mr. Newcombe argues that the VA was ob-
ligated to provide a medical examination for his left fore-
foot varus. Mr. Newcombe argues that “the 2015 VA
examination did not address his forefoot varus,” and there-
fore, the duty to assist required the VA to provide another
examination. Appellant’s Reply Br. 3–5 (emphasis omit-
ted).
The Board had found that “[l]eft forefoot varus was . . .
not diagnosed on VA examination in June 2015.” J.A. 115.
The Veterans Court affirmed and rejected Mr. Newcombe’s
arguments that the examination was inadequate. The Vet-
erans Court determined that “the examiner specifically
found that there was no ‘marked varus deformity,’ and no
‘foot [injuries] or other foot conditions not already de-
scribed.’” Id. at 5–6 (quoting id. at 70). Whatever the mer-
its of Mr. Newcombe’s argument about the meaning of the
examination report, Mr. Newcombe’s argument is a chal-
lenge to a factual determination that the VA satisfied its
duty to assist, which we have no jurisdiction over. See 38
U.S.C. § 7292(d)(2).
Mr. Newcombe also contends that the Veterans Court
improperly interpreted 38 U.S.C. § 5103A to mean that “an
examination is only required to be provided when there
is . . . medical evidence of a diagnosis.” Appellant’s Br. 12.
The Veterans Court did not interpret § 5103A in such a
way.
Mr. Newcombe further argues that the Veterans Court
made impermissible findings of fact and should have re-
manded the case to the Board to consider the application of
§ 5103A in the first instance. It is true that “appellate tri-
bunals [such as the Veterans Court] are not appropriate
fora for initial fact finding.” Hensley v. West, 212 F.3d 1255,
1263 (Fed. Cir. 2000). Here, the Veterans Court did not
make fact findings in the first instance.
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NEWCOMBE v. MCDONOUGH 6
CONCLUSION
Mr. Newcombe’s arguments are challenges to factual
determinations by the Board and the Veterans Court. Be-
cause we have no jurisdiction over those challenges, we dis-
miss this case.
DISMISSED
COSTS
No costs.
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