BROOME V DVA, No. 08-7099 (Fed. Cir. 2008)

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NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2008-7099 GLENDA BROOME, Claimant-Appellant, v. JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee. Glenda Broome, of Easley, South Carolina, pro se. Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Gregory G. Katsas, Acting Assistant Attorney General; Jeanne E. Davidson, Director; and Harold D. Lester, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel; and Amy M. McAtee, Staff Attorney, United States Department of Veterans Affairs, Office of the General Counsel, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge Robert N. Davis NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2008-7099 GLENDA BROOME, Claimant-Appellant, v. JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee. Appeal from the United States Court of Appeals for Veterans Claims in 06-1261, Judge Robert N. Davis. __________________________ DECIDED: September 4, 2008 __________________________ Before MICHEL, Chief Judge, MAYER, Circuit Judge and STEARNS, District Judge*. PER CURIAM. Glenda M. Broome appeals a portion of the judgment of the Court of Appeals for Veterans Claims, which affirmed the Board of Veterans Appeals decision denying her claim for service-connection for the cause of her husband s death, and therefore her claim for dependency and indemnity compensation. Broome v. Peake, No. 06-1261 _____________________ * The Honorable Richard G. Stearns, District Judge, United States District Court of Massachusetts, sitting by designation. (Vet. App. Mar. 3, 2008). We affirm-in-part and dismiss-in-part. The veteran died on June 1, 2001, of intracerebral hemorrhage due to spontaneous rupture of a cerebral vessel. Prior to his death, service connection was established for degenerative arthritis and multiple sebaceous cysts. He was granted total disability based on individual unemployability due to his service-connected disabilities effective January 1, 2000. Broome s assertion of clear and unmistakable error ( CUE ) on the board s failure to grant claims by the veteran for 100 percent disability prior to January 1, 2000, is not ripe for review because she has yet to file such a claim with the VA regional office ( RO ). Each claim of CUE underlying a request for revision of a previous RO decision must be presented to and adjudicated by the RO in the first instance. Similarly, her new claim of service-connection for Agent Orange exposure first must be presented to the RO for adjudication. Because those issues were raised for the first time on appeal, we affirm the Veterans Court s decision not to address them. Broome also claims that the board and the Veterans Court erred in concluding that the veteran s intracerebral hemorrhage was not a result of his service-connected degenerative arthritis. We see no legal error in the Veterans Court s conclusion that the veteran s service-connected disabilities were not causally connected to his death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Credibility of expert testimony is a question of fact, and it was not inappropriate for the board to weigh the expert medical opinions on record for their probative values in determining whether the veteran s cause of death was service-connected. Contrary to Broome s contention, the board was not required to consult with medical experts outside of the Department of Veterans Affairs ( DVA ). 2008-7099 2 Indeed, it is up to the board s judgment to decide whether a case is of such medical complexity or controversy as to warrant an advisory medical opinion from one or more medical experts who are not available within the DVA. 38 U.S.C. § 7109; 38 C.F.R. § 20.901(d). Even if the board concludes that such an advisory medical opinion is warranted, it has some discretion to decide whether to seek one. 38 U.S.C. § 7109(a) (stating that, in such a case, the Board may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department ) (emphasis added). We have considered Broome s remaining arguments, and conclude that they each (1) challenge a factual conclusion reached by the board or the Veterans Court, and (2) fail to raise a constitutional issue. Because we lack authority to review either a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case absent a constitutional issue, 38 U.S.C. § 7292(d)(2), we dismiss the remainder of her appeal. 2008-7099 3

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