FOBBS V DVA, No. 11-7154 (Fed. Cir. 2011)

Annotate this Case

Download PDF

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ VALERIE M. FOBBS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7154 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 09-1998, Judge Davis. __________________________ Decided: December 12, 2011 __________________________ VALERIE M. FOBBS, of Garland, Texas, pro se. JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondentappellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and FRANKLIN E. WHITE, JR., Assistant Director. Of FOBBS v. DVA 2 counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and CHRISTA A. SHRIBER, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before NEWMAN, PLAGER, and BRYSON, Circuit Judges. PER CURIAM. Valerie M. Fobbs, surviving spouse of veteran Charles C. Fobbs, seeks review of the February 28, 2011, memorandum decision of the United States Court of Appeals for Veterans Claims ( Veterans Court ). 1 That decision affirmed a May 20, 2009, decision of the Board of Veterans Appeals ( Board ) that denied service connection for the cause of Mr. Fobbs death. Because Mrs. Fobbs does not raise any issues within our jurisdiction, we dismiss her appeal. I. BACKGROUND The veteran, Charles C. Fobbs, served on active duty in the Merchant Marine from April 1942 to August 1945, including extended service at sea during WWII. Mr. Fobbs passed away on January 2, 1985. His death certificate indicated that he died from pneumococcus meningitis, sepsis, and a urinary tract infection. At the time of his death, Mr. Fobbs was not service connected for any disabilities. Years later, the veteran s surviving spouse, Valerie M. Fobbs, in August 1998 filed a claim for service connection for the cause of her husband s death. Mrs. Fobbs con1 2011). Fobbs v. Shinseki, No. 09-1998 (Vet. App. Feb. 28, 3 FOBBS v. DVA tended that her husband s death was related to his exposure to asbestos while in service. The Veterans Affairs ( VA ) regional office ( RO ) denied Mrs. Fobbs claim in November 2000, February 2002, and March 2003. In May 2003, Mrs. Fobbs appealed to the Board. The Board requested an opinion from a VA medical examiner as to whether Mr. Fobbs death was caused by, or related to, possible exposure to asbestos. The examiner opined that Mr. Fobbs possible exposure to asbestos while in service had no bearing on his death. Based on that opinion, the Board concluded that there was no competent evidence of record supporting Mrs. Fobbs claim. In the Appeal of Valerie M. Fobbs, No. 03-18 501, slip op. at 5 (Bd. Vet. App. June 23, 2006). Mrs. Fobbs appealed the Board s decision to the Veterans Court. The Veterans Court found that the Board s medical inquiry had been too narrow, and remanded with instructions to obtain a medical opinion as to whether it was as likely as not that Mr. Fobbs death was related to service in any way other than asbestos exposure. Fobbs v. Peake, No. 06-2931, slip op. at 2-3 (Vet. App. Feb. 6, 2008). On remand, a second VA examiner reviewed Mr. Fobbs medical history and concluded that his death was neither caused by, nor resulted from, his military service, including any asbestos exposure or other environmental exposure. The Board then issued a decision that denied Mrs. Fobbs claim of entitlement to service connection for Mr. Fobbs death. In the Appeal of Valerie M. Fobbs, No. 03-18 501, slip op. at 8 (Bd. Vet. App. May 20, 2009). The Veterans Court affirmed the Board s decision. Fobbs v. Shinseki, No. 09-1998 (Vet. App. February 28, 2011). Mrs. Fobbs now appeals to this court. FOBBS v. DVA 4 II. DISCUSSION This court s review of Veterans Court decisions is strictly limited by statute. Under 38 U.S.C. § 7292(a), we may review the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision. Unless an appeal presents a constitutional issue, we may not 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. 38 U.S.C. § 7292(d)(2). Giving Mrs. Fobbs extensive informal brief, including the medical reports, the broadest latitude, we identify the following eight issues for consideration in this appeal: (1) the Board failed to apply the guidelines set forth in M211MR (Service Connection for Disabilities Resulting from Exposure to Asbestos) to the facts of this case; (2) the Board failed to apply the prisoner of war presumptions of 38 C.F.R. § 3.309 to the facts of this case; (3) the Veterans Court misapplied Barr v. Nicholson, 21 Vet. App. 303 (Vet. App. 2007) to the facts of this case; (4) the Board misapplied the elements of 38 C.F.R. § 3.303 (Principles Relating to Service Connection), § 3.328 (Independent Medical Opinions), and § 4.2 (Interpretation of Examination Reports) to the facts of this case; (5) the Veterans Court misapplied the benefit of the doubt principle of 38 U.S.C. § 5107 to the facts of this case; (6) the Veterans Court misapplied the presumption of sound condition of 38 U.S.C. § 1111 to the facts of this case; (7) the VA violated its duty under 38 U.S.C. § 5103A to assist in developing the veteran s claim; and (8) the VA violated its duty under 38 U.S.C. § 5103 to notify claimants of required information and evidence. 5 FOBBS v. DVA It is not always easy to distinguish issues which are pure questions of legal interpretation, presenting cases over which we have jurisdiction, from cases in which the questions challenge a law or regulation as applied to the facts of the particular case, cases which by statute we may not review. We have considered each of Mrs. Fobbs arguments and conclude that although they are framed as constitutional issues or as challenges to the Veterans Court s interpretation of a statute, in fact the issues are not constitutional and the arguments actually challenge factual conclusions reached by the Board, or the application of laws and regulations to the facts of this particular case. The Veterans Court merely applied established law to the facts and circumstances of Mrs. Fobbs case. Because we may not review these types of challenges, see 38 U.S.C. § 7292(d)(2), we dismiss Mrs. Fobbs appeal for lack of appellate jurisdiction. DISMISSED

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.