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Harvella Jones v. Eric K. Shinseki

September 20, 2011

HARVELLA JONES, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in Case No. 09-0106, Judge Alan G. Lance, Sr.

The opinion of the court was delivered by: Newman, Circuit Judge.

NOTE: This disposition is nonprecedential.

Before NEWMAN, O'MALLEY, and REYNA, Circuit Judges.

Mrs. Harvella Jones appeals from the decision of the United States Court of Appeals for Veterans Claims (the Veterans Court) affirming the decision of the Board of Veterans Appeals (the Board) denying her claim for various entitlements, on the Board's finding that the cause of her husband's death was not service-connected.*fn1

On review of Mrs. Jones' briefs, the government's response, and the record provided, we discern no error of law. Because this court lacks jurisdiction to review the questions of fact presented by Mrs. Jones, and because she has not shown a constitutional violation, the Veterans Court's decision is affirmed.

BACKGROUND

The deceased veteran, Johnnie Jones, served on active duty in the United States Army from May 1943 to November 1948, again from May 1950 to October 1951, and then from August 1954 to January 1964. The veteran was assessed with a service-connected back disability, rated as 60% disabling.

In November 1990 the veteran filed a claim with a regional office (RO) for secondary service connection for renal disease, pursuant to 38 C.F.R. §3.310, stating that his renal condition was caused by the medications he took for his service-connected back disability. In April 1996 the Board denied this claim. The veteran did not appeal, but filed a request to reopen in June 1996, which was on appeal to the Veterans Court at the time of the veteran's death in October 2004.

In March 1994, the veteran had filed a claim pursuant to 38 U.S.C. §1551, which provides for benefits when medical treatment obtained at a VA facility causes a veteran's disability. The Board also denied this claim, and the appeal of that Board decision was pending before the Veterans Court at the time of the veteran's death. The Veterans Court dismissed both appeals without ruling on the merits.

The death certificate stated that the cause of death was probable sepsis with profound hypertension due to cardiac dysrhythmia. In November 2004 Mrs. Jones filed a claim for Dependency and Indemnity Compensation benefits, and for accrued benefits. On December 18, 2008, the Board denied service connection for the cause of death, concluding that the veteran's death was caused neither by a service-connected disability, nor by medical treatment received at a VA facility. The Board also denied Mrs. Jones' claim for benefits pursuant to 38 U.S.C. §1318, because the veteran had not been receiving disability benefits for a totally disabling disability for the 10 years preceding his death. On November 8, 2010, the Veterans Court affirmed the Board, stating that the Board gave an adequately articulated rationale for its finding that the veteran's renal disease was related to his hypertension rather than the medications for his service-connected back disability. Mrs. Jones appeals.

DISCUSSION

On appeal from the Veterans Court, absent a constitutional issue, we may not review challenges to factual determinations or challenges to the application of a law or regulation to facts. 38 U.S.C. §7292(d)(2).

Mrs. Jones presents four arguments to this court: (1) that the Veterans Court ignored certain evidence; (2) that the veteran's claim under 38 U.S.C. ยง1151 was placed in suspense awaiting the decision in Brown v. Gardner, 513 U.S. 115 (1994), and that this delay prejudiced him; (3) that the VA tribunals misunderstood part of the veteran's claim; and (4) that the VA tribunals ...


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