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Francway v. Wilkie

United States Court of Appeals, Federal Circuit

July 23, 2019

ERNEST L. FRANCWAY, JR., Claimant-Appellant

          Appeal 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.

          Before Prost, Chief Judge, Lourie and Dyk, Circuit Judges.

          Dyk, Circuit Judge.

         Ernest 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.


         Francway 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.

         In 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 1969.

         After 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 omitted).

         In 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 disability.

         The 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.

         Francway 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 ...

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