ERNEST L. FRANCWAY, JR., Claimant-Appellant
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 16-3738, Judge Michael P. Allen, Judge Amanda L.
Meredith, Judge Joseph L. Toth.
William H. Milliken, Sterne Kessler Goldstein & Fox,
PLLC, Washington, DC, argued for claimant-appellant. Also
represented by Michael E. Joffre.
William James Grimaldi, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
Joseph H. Hunt, Martin F. Hockey, Jr., Robert Edward
Kirschman, Jr.; Lara Eilhardt, Samantha Ann Syverson, Y. Ken
Lee, Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Prost, Chief Judge, Lourie and Dyk, Circuit Judges.
L. Francway appeals from the Court of Appeals for Veterans
Claims' ("Veterans Court's") decision
affirming the Board of Veterans' Appeals'
("Board's") denial of Francway's claim for
disability compensation. We affirm.
served on active duty in the United States Navy from August
1968 to May 1970. While serving on an aircraft carrier in
1969, Francway contends that he was "hit by a gust of
wind while carrying a set of wheel chocks" and
"[t]he resulting fall caused him to injure his
back." Francway Br. at 4. He contends he "was
placed on bedrest for a week and assigned to light duty for
three months following the incident." Id.
Francway claims that this injury is connected to a current
lower back disability, noting that after his accident he was
treated for back problems while in service.
April 2003, Francway filed a claim with the Department of
Veterans Affairs ("VA") for service connection for
his back disability. Between 2003 and 2011, Francway was
examined multiple times by an orthopedist and had his medical
records separately reviewed by the orthopedist and an
internist. They concluded, along with a physician's
assistant that examined Francway, that Francway's current
back disability was not likely connected to his injury in
multiple appeals to and from the Board and remands back to
the VA regional office ("RO"), in 2013, Francway
sought to open his claim based on new and material evidence
from his longtime friend, in a so-called "buddy
statement," attesting to Francway's history of lower
back disability after his injury in 1969. The Board again
remanded the case to the RO based on the allegations in the
"buddy statement," with instructions that
Francway's "claims file should be reviewed by an
appropriate medical specialist for an opinion as to
whether there is at least a 50 percent probability or greater
. . . that he has a low back disorder as a result of active
service." J.A. 1046 (emphasis added). The Board also
instructed that "[t]he examiner should reconcile any
opinion provided with the statements from [Francway and his
"buddy statement"] as to reported episodes of back
pain since active service." Id. (emphasis
2014, Francway was examined by the same orthopedist who had
examined him previously. The orthopedist concluded that
Francway's current back symptoms were unlikely to be
related to his injury in 1969, but the orthopedist did not
address the "buddy statement." Subsequently, the
internist who had previously provided the VA a medical
opinion on Francway's disability reviewed Francway's
file and the "buddy statement," and concluded that
it would be speculative to say his current back symptoms were
related to his earlier injury. The RO again denied
Francway's entitlement to benefits for his back
Board concluded that there was insufficient evidence of a
nexus between Francway's injury in 1969 and his current
back disability and that the VA had complied with the earlier
remand orders. Francway then appealed to the Veterans Court,
arguing for the first time that the internist who had
reviewed the "buddy statement" was not an
"appropriate medical specialist" within the meaning
of the remand order. The Veterans Court held that Francway
had not preserved that claim because Francway did not
challenge the examiner's qualifications before the Board.
appealed to this court. We have jurisdiction pursuant to 38
U.S.C. § 7292(c). A request for initial hearing en banc
was denied. Francway v. Wilkie, No. 18-2136 (Nov.
28, 2018), ECF No. 30. We review questions of law de novo,
but, absent a constitutional issue, we "may not review
(A) a challenge to a factual determination, or (B) a
challenge to ...