Veteranclaims’s Blog

September 9, 2011

Federal Circuit, Non-precedential, Beck v. Shinseki, No. 2011-7039, Medical Treatise, Medical Record Review

Excerpt from decision below:
In other words, the Board assigned greater weight to the examiner’s opinion for three reasons: (1) his opinion was based on a review of Beck’s entire medical history; (2) he was the only expert to consider the fact that Beck had no back disability at discharge; and (3) Beck did not receive any treatment for a number of years after discharge. These findings on the credibility and weight of the evidence are factual determinations that the Veterans Court reviews for clear error. 38 U.S.C. § 7261(a)(4). Of the three reasons cited by the Board, the treatise evidence only undermines the third reason because it disclosed that “most people with back pain do not seek medical treatment; back pain is typically recurrent; and the absence of back pain on any given day does not imply normal lumbar function.” A 66.
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Regarding item (1) and (2) above, see this single CAVC Judge application of medical record review, and Nieves-Rodriguez v. Peake, from Smith v. Shinseki, No. 10-0053:

A. Weighing Medical Evidence
“It is the Board’s responsibility to weigh conflicting medical evidence in determining whether service connection is warranted and, in doing so, the Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008). In its analysis, however, the Board may not discount a private medical opinion “solely because the opining physician did not review the claims file.” Id. at 304 (emphasis in original). Indeed, [t]he mere statement that one physician did or did not have access to a claims file is of little use in providing adequate reasons or bases for a decision where the Board fails to explain what information in the claims file was important and necessary for a competent and persuasive medical opinion, and why the absence of record review detracts from the probative value of the opinion of a physician. Id. at 303.
Nevertheless, [c]ritical pieces of information from a claimant’s medical history can
lend credence to the opinion of the medical expert who considers them and detract from
the medical opinions of experts who do not. Therefore, a recitation of the medical
information on which the opinion is based can aid the Board’s evaluation of the
sufficiency of the opinion. Id. at 304. Ultimately, “[w]hen the Board uses facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon the Board to point out those
6

facts and explain why they were necessary or important in forming the appropriate medical judgment.” Id. at 303; see also D’Aries v. Peake, 22 Vet.App. 97, 107 (2008).

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Excerpt from decision below:
“Regarding the treatises submitted by Beck, the Board noted that
a medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on a un-substantiated lay medical opinion.
A 38–39 (internal quotations and citation omitted). In Beck’s case, however, because the treatise evidence submitted was not accompanied by the opinion of any medical expert, the Board concluded that the treatise evidence was insufficient to establish the required nexus between his back injury and his time in service.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Because medical treatise is being noticed in more and more of the decision which we review, we are presenting other decisions and citations in an attempt to sort of place all this together in one place so that you can better arrive at your own conclusion[s].

“It is true that information from a medical treatise may provide evidence to support a claim for benefits when coupled with the opinion of a medical professional, but to be probative, the information must be specific and conclusive. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (general and inconclusive information is likely to make a causal connection seem plausible, based on the “instinctive inference of a layperson” as opposed to the trained opinion of a medical professional).”
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Federal Register: March 30, 2011 (Volume 76, Number 61)
[Rules and Regulations]
[Page 17544-17548]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr11-6]

=======================================================================
———————————————————————–

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 19 and 20

RIN 2900-AN34

Board of Veterans’ Appeals: Remand or Referral for Further
Action; Notification of Evidence Secured by the Board and Opportunity
for Response

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.
SUMMARY: The Department of Veterans Affairs (VA) is amending the
Appeals Regulations of the Board of Veterans’ Appeals (Board) to
articulate the Board’s practice of referring unadjudicated claims to
the Agency of Original Jurisdiction (AOJ) for appropriate action, and
to describe when it is appropriate for the Board to remand a claim to
the AOJ for the limited purpose of issuing a Statement of the Case
(SOC). We are also amending the Board’s Rules of Practice to outline
the procedures the Board must follow when supplementing the record with
a recognized medical treatise, and to remove the notice procedures the
Board must currently follow when considering law not considered by the
AOJ.
The purpose of these amendments is to codify existing practices derived from caselaw, enhance efficiency, and provide guidance and clarification.

DATES: Effective Date: The final rule is effective April 29, 2011.
C. Thurber Procedures

We proposed to amend 38 CFR 20.903(b) to clarify the notice
procedures the Board must follow when it supplements the record with a
recognized medical treatise.
One commenter objected to the proposed
language which stated that, as part of the notice procedures, the Board
will inform appellants that it “will consider such recognized medical
treatise in the adjudication of the appeal.” The commenter believed
that this language does not provide a claimant and his or her
representative with the requisite notice regarding the reliance
proposed to be placed on the treatise, and thus, does not comply with
the notice requirements outlined in Thurber v. Brown, 5 Vet. App. 119
(1993).
We respectfully disagree with this comment. As explained in the
NPRM, we chose not to use the term “reliance” in Sec. 20.903(b)
because such language could be misconstrued to suggest that the Board
has already reached a preliminary decision on a claim. NPRM, 74 FR at
67152. We do not interpret Thurber as requiring the Board to pre-
adjudicate a claim before following the requisite notice procedures.
Id. This interpretation is in accordance with other areas of VA
adjudicatory procedure that do not require the Secretary to rule on the
probative value of evidence prior to reaching a decision on the merits.
+++++++++++++++++++++++++++
Hensley, 212 F.3d 1255 (Fed. Cir. 2000)
“Finally, we note one further legal error by the Court of Appeals for Veterans Claims, regarding the use of treatise evidence. The Court of Appeals for Veterans Claims was of the view that in submitting the Veterans at Risk report, Mr. Hensley was “attempting to self-diagnose his heart disease,” which it deemed impermissible. Hensley, slip op. at 5. However, this conclusion does not reflect what Mr. Hensley actually did. Mr. Hensley already had a diagnosis of heart disease from several doctors. He used the report not to establish the first element of the well grounded complaint, the diagnosis of a current disorder, but rather to support the third element, the nexus between his service and his current disease. A veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his case.8 See also Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that medical treatises can serve as the requisite evidence of nexus).
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Single Judge Application, C.F.R. 4.2, Medical Treatise, Hall v. Shinseki, No. 09-1075, July 2011

“The Court concludes that the Board’s statement concerning the medical treatise evidence offered by Mr. Halls was insufficient because it only addressed whether that evidence was independently sufficient to establish a medical nexus between his current headaches and the 1970, in-service motor vehicle accident. It therefore failed to fully comply with 38 C.F.R. § 4.2, which requires the ratings specialist to “interpret reports of examination in light of the whole recorded history. . . .” Specifically, the Board failed to consider how the information contained in the medical treatise evidence affected the adequacy and probative value of the unfavorable October 1998 VA medical opinion, given various contradictions between the information contained in the medical treatise evidence and the medical reasoning employed by the VA medical examiner. Indeed, the parties’ October 2007 joint motion for remand stated that the evidence had been offered by Mr. Halls not to establish medical nexus, but to “rebut [the] negative VA medical opinion,” and that the Board therefore erred in its March 2006 decision by failing to discuss it. If the Board were permitted to out rightly discount medical treatise evidence on the basis that it is does not address the specific facts of a particular case, there would be no value in ever introducing medical treatise evidence, since all such evidence is necessarily “generic” in this sense. Rather, once submitted, medical treatise evidence becomes part of the whole recorded history of a claim against which all medical examination reports must be considered. See 38 C.F.R. § 4.2 (2010).
If there is any question as to whether such evidence bears considering as
a general matter, as Mr. Halls notes in his reply brief, the Federal Rules of Evidence, specifically Rule 803(18), have specifically carved an exception to the hearsay rule so that such evidence may be admitted for consideration. Although the Court is well aware that the Federal Rules of Evidence do not apply in VA adjudications, the text of Rule 803(18) and the policy considerations that support it are instructive regarding the competency of treatise evidence.”
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Single Judge Application of Sacks v. West, 11 Vet.App. 314, 316 (1998) in Hibbits v. Shinseki, No. 09-3780
“This Court has recognized that, in general, information contained within a
treatise is too abstract to prove the nexus element of a service-connection claim. Sacks v. West, 11 Vet.App. 314, 316 (1998). However, there are exceptions to this general rule; in Sacks, for instance, the Court stated that treatises “can provide important support when combined with an opinion of a medical professional.” Id. at 317. Furthermore, Sacks observed that a medical article or treatise, standing
3

alone, may provide sufficient evidence of a causal connection when it “discusses generic relationships with a degree of certainty” so that the causal connection is “based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. As such, it is clear that, in some instances, information contained within a treatise can be probative evidence in evaluating a claim for VA disability benefits, and in those instances its probative value must be weighed against the probative value of other evidence of record.
The Court agrees with the appellant’s argument that the Board erroneously
dismissed the information contained within the treatise without any discussion as to its probative value.”
++++++++++++++++++++++++++++++++++++++++++++++
Single Judge Application, McLaughlin v. Shinseki, No. 10-2130, Medical Treatise
“Further, to establish prejudice, Mr. McLaughlin would have to demonstrate
that the treatise material was specific to him and could outweigh the specific medical opinions against his claim, and he has not done so. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (holding that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993)(discussing how, in general, medical opinions directed at specific patients are more probative than medical treatises); see also Sanders, supra.”
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NEW GROUND IN EVIDENCE REQUIREMENTS
“In the recent case of Wallin v. West (1998), the Court decided that a veteran submitted medical-treatise evidence that was deemed plausible evidence of a connection between his service-connected injury and his current disability, which thereby satisfied the veteran’s initial burden of filing a well-grounded claim.”
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“where medical treatise evidence discusses relationships between conditions with a “degree of certainty,” a claimant may use such evidence to meet the requirement for a medical nexus. See Wallin v. West, 11 Vet.App. 509, 514 (1998). On the other hand, if the medical treatise discusses the relationship in more generic terms, the treatise is insufficient to meet the requirement for a medical nexus.
+++++++++++++++++++++++++++++++++++++++++

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
__________________________
JAMES BECK,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2011-7039
__________________________
Appeal from the United States Court of Appeals for Veterans Claims in Case No. 08-3834, Judge Alan G. Lance, Sr.
_________________________
Decided: September 9, 2011
_________________________
DARLA J. LILLEY, Lilley Law Firm P.L.L.C., of Dain-gerfield, Texas, for claimant-appellant.
ALLISON KIDD-MILLER, Senior Trial Counsel, Com-mercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respon-dent-appellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
BECK v. DVA 2
tor, and KIRK T. MANHARDT, Assistant Director. Of coun-sel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and TRACEY P. WARREN, Attorney, United States Department of Veteran Affairs, of Wash-ington, DC.
__________________________
Before NEWMAN, O’MALLEY, and REYNA Circuit Judges
PER CURIAM.
James Beck (“Beck”) appeals the decision of the United States Court of Appeals for Veterans Claims (the “Veterans Court”) affirming the judgment of the Board of Veterans Appeals (the “Board”). The Veterans Court affirmed the Board’s judgment because it concluded that treatise evidence submitted by Beck was insufficient to establish a nexus between his back injury and his service, or undermine the VA medical examiner’s opinion that Beck’s back injury was not service connected. Beck as-serts this was error because the Veterans Court: (1) refused to consider the treatise evidence without a sup-porting medical opinion; (2) refused to consider the trea-tise evidence for the purpose of impeaching the medical examiner’s opinion; and (3) failed to apply the correct standard for weighing conflicting medical evidence. Because we conclude that this appeal does not invoke our jurisdiction under Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003), or challenge the validity of any statute or regulation, any interpretations thereof, or raise any constitutional controversies, we dismiss for lack of juris-diction.
BACKGROUND
Beck served on active duty in the U.S. Navy from February 1962 to May 1966. Appendix (“A”) 8. In 1998, Beck filed a claim for service connection for his back
BECK v. DVA 3
injury. While Beck’s service records and separation examination make no mention of a back injury, according to Beck, he injured his back in 1963, while serving aboard the U.S.S. Kitty Hawk. The injury occurred when Beck and another sailor were carrying a two-hundred pound amplifier up a stairwell. Beck testified that, while carry-ing the amplifier, “he felt something go in his back.” A 34. Beck indicated that because the injury was painful, he went to sick call. At sick call, however, he did not see a doctor and was only given a cursory examination. He was not prescribed pain medication.
During the remainder of his service, Beck did not re-ceive additional treatment for his back injury. Beck’s separation physical, moreover, stated that his spine/other musculoskeletal was normal, and there was no mention of any back injury. After discharge, Beck indicated that he first sought treatment for his back in the late 1960s. Records relating to this treatment, however, do not exist because they were destroyed. Accordingly, the earliest medical records describing his back injury are from the early 1990s.1
The first of these medical records, a May 1990 CT scan, was interpreted by Beck’s doctor as being negative, with vertebrae, facets and facet joints described as unre-markable and no evidence of a herniated disc. In 1992, Beck had another CT scan; his doctor found this scan to be abnormal. As a result of this abnormal scan, Beck
1 Additionally, Beck submitted a copy of a life in-surance application form from March 1979. The form listed the name of a doctor who Beck stated had treated him for back pain during the 1970s. The form did not, however, indicate that Beck suffered from back pain. Indeed, on the form Beck denied having had any illness, surgical procedure, or treatment by a physician in the past three years.
BECK v. DVA 4
underwent a laminotomy and disc excision surgery.
2 In January of 2004, Beck also submitted a letter written By Dr. Evans, indicating that he had treated Beck for his back injury since 1998. The letter stated that Beck’s history of back problems began with his injury while in service. Dr. Evans concluded that, because Beck had sustained no other acute injury to his back since his service, it was therefore as likely as not that Beck’s recur-rent back pain was the result of his 1963 injury while in the Navy.
On the basis of this record and a letter from Dr. Robert D. Taylor, Beck sought service connection for his back injury. The VA regional office (“RO”) denied his claim. After this initial denial of his claim, Beck submitted two additional pieces of evidence in support of his claim. The first was a statement from his wife, indicating that Beck injured his back in service. The second was letter from Dr. Ira C. Denton, noting that he performed back surgery on Beck in 1992. Submission of this additional evidence2 resulted in an extensive procedural history, which is not relevant to this appeal. This history culminated in December 2004 with the Board remanding the case for, among other things, a medical examination of Beck.
Beck’s medical examination occurred in June 2007, and an addendum to the examination was submitted in December 2007. The examiner concluded that Beck’s back injury “is less likely as not (less than 50/50 probability) caused by or a result of non-treated and non-reported back injury in 1963.” A 9. Explaining the rational for this conclusion, the examiner stated:
Veteran’s c-file was carefully reviewed. This examiner could not find evidence of any low back complaints between 1962-1966. The separation exam in 5.3.1966 showed normal spine exam. The
BECK v. DVA 5
3 According to Beck, the treatise evidence reflected “that most people with back pain do not seek medical treatment; back pain is typically recurrent; and the absence of back pain on any give[n] day does not imply normal lumbar function.” A 66.
CT scan in 5.31.1990 was normal. An abnormal CT scan was seen in 11/16/1992 which led to a laminotomy and disc excision. The earliest com-plaints of low back pain was [sic] documented by veteran’s claim that he was seen and treated dur-ing 1972-1973 for low back pain (Dr. Lienke has no medical records). Even if this was the case, veteran complained of low back pain 10 years af-ter the supposed incident. This is too far removed to be connected to the non-documented injury in 1963, which makes veteran’s current low back condition less likely to be related to the non-documented low back injury.
Id. In response to this report, before the Board, Beck submitted treatise evidence3 and lay statements in sup-port of his claim. After considering all of the evidence before it, the Board concluded that Beck’s back injury was not service connected.
With respect to the conflicting medical evidence, the Board assigned greater weight to the examiner’s opinion than Beck’s private doctors because “it was based on a review of the veteran’s medical history; whereas there is no evidence that the veteran’s private doctors ever re-viewed his service treatment records.” A 38. The Board placed particular importance on the fact that the examiner emphasized that Beck showed no back disability at the time of separation while “none of the private opinions even mentioned the lack of a back disability in service or the lack of any treatment for a number of years after service.” Id. The Board concluded that the “failure to
BECK v. DVA 6
address this relevant fact renders the private medical opinions less credible than the VA examiner’s report.” Id.
Regarding the treatises submitted by Beck, the Board noted that
a medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on a un-substantiated lay medical opinion.
A 38–39 (internal quotations and citation omitted). In Beck’s case, however, because the treatise evidence submitted was not accompanied by the opinion of any medical expert, the Board concluded that the treatise evidence was insufficient to establish the required nexus between his back injury and his time in service.
Finally, the Board determined that the various letters from Beck’s friends and family had minimal probative value because the letters were not entirely consistent, and they were written 40 years after the relevant events occurred. In light of these conclusions, on October 31, 2008, the Board denied Beck’s claim. Beck received notice of this decision, and he timely appealed to the Veterans Court.
Before the Veterans Court, Beck argued that the Board’s rejection of the treatise evidence was contrary to law because treatise evidence can be considered even if it is not supported by a medical opinion. Beck asserted that the Board erred by refusing to consider the treatise evi-dence for two distinct purposes: (1) to establish an etio-logical nexus; and (2) to undermine the credibility of the
BECK v. DVA 7
medical examiner’s opinion. In his reply brief, however, Beck abandoned his arguments with respect to establish-ing an etiological nexus. Instead, Beck framed the issue before the Veterans Court as “whether impeachment evidence in the form of treatise evidence must be sup-ported by a medical opinion.” A 65 n.5.
After considering the parties’ arguments, the Veter-ans Court affirmed the Board’s decision. Specifically, the Veterans Court concluded that the Board did not commit legal error by refusing to consider the treatise evidence for the purpose of impeaching the examiner’s opinion. At the outset, the Veterans Court noted that treatise evi-dence may be invoked to show a nexus in the absence of a supporting medical opinion. The Veterans Court high-lighted that, while the Board seemed to “conflate” the possible situations in which treatise evidence will and will not be considered absent a supporting medical opinion, the Board seemed to mean that Beck’s treatise evidence was too uncertain to meet the requirements for considera-tion absent a supporting medical opinion. A 12. Impor-tantly, the Veterans Court found that the treatise evidence was “quite general.” A 13. In light of this de-termination, the Veterans Court concluded that it was “unclear how this information would impeach the VA examiner’s competence,” and that Beck had “not met his burden of demonstrating that the Board erred in finding the examiner and his opinion competent.” Id.
Beck timely appealed this decision.
DISCUSSION
I.
Our review of Veterans Court decisions is limited by statute. See Yates v. West, 213 F.3d 1372, 1373–74 (Fed. Cir. 2000). By statute, our jurisdiction over appeals from
BECK v. DVA 8
the Veterans Court is limited to those appeals that chal-lenge the validity of a decision of the Veterans Court with respect to a rule of law or the validity of any statute or regulation, any interpretations thereof, or that raise any constitutional controversies. See 38 U.S.C. § 7292 (2006). We do not have jurisdiction to hear appeals challenging factual determinations or the application of law to the facts of a particular case, unless there is a constitutional issue present. See § 7292(d)(2).
II.
On appeal, Beck asserts that the Veterans Court erred by misinterpreting: (1) 38 C.F.R. § 3.159(a); (2) 38 U.S.C. § 5103A and 38 C.F.R. §§ 4.1, 4.2; and (3) the rule of law established in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The government argues that we lack subject matter jurisdiction over this appeal because Beck’s appeal does not actually challenge the Veterans Court’s interpretation of any statute or rule of law. For the reasons discussed below, we agree with the govern-ment. Accordingly, we lack subject matter jurisdiction and dismiss this appeal.
Beck’s first and second arguments on appeal are based on an incorrect reading of the Veterans Court’s decision. While Beck raises these arguments as separate and distinct, because they present related issues, we will address them together. In essence, these arguments are premised on Beck’s assertion that the Veterans Court refused to consider the treatise evidence because it was not accompanied by a medical expert opinion, and that the Veterans Court found that the treatise evidence could not be used to undermine the credibility of the examiner’s medical opinion. Beck’s characterization of the Veterans Court’s decision is inaccurate.
The Veterans Court did not rule that treatise evidence
BECK v. DVA 9
can only be considered if it is accompanied by a medical expert opinion. The Veterans Court explicitly stated that medical treatises, standing alone, “may provide sufficient evidence of a causal connection when it discusses generic relationships with a degree of certainty so that the causal connection is based on objective facts rather than on an unsubstantiated lay medical opinion.” A 11 (internal quotations and citation omitted). The Veterans Court further explained that this court has held that a veteran may use treatise evidence to establish a nexus without a supporting medical opinion “in an appropriate case.” Id. (citing Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000)). In light of this precedent, the Veterans Court held that the Board did not err by dismissing the treatise evidence because it was too uncertain to be considered without a supporting medical opinion, i.e., that this was not an “appropriate case” to consider such evidence with-out a supporting opinion. The Veterans Court, moreover, noted that “the treatise evidence submitted discusses back problems and their etiologies generally, supporting the Board’s conclusion that a supporting medical opinion was required.” A 12 (emphasis added). This discussion makes clear that, contrary to Beck’s assertion, the Veter-ans Court did not rule that treatise evidence must be accompanied by a supporting medical opinion to be con-sidered.
Nor did the Veterans Court rule that treatise evidence could only be considered for the purpose of establishing a nexus. In section B of its opinion, the Veterans Court explicitly addressed Beck’s argument that “the Board should have evaluated the credibility of the examiner’s statements given the treatise evidence.” A 12. It found that, in light of the general nature of treatise evidence, it was “unclear how this information would impeach the VA examiner’s competence.” A 13. Furthermore, the Veter-
BECK v. DVA 10
ans Court concluded that Beck “had not met his burden in demonstrating that the Board erred in finding the exam-iner and his opinion competent” because the treatise evidence was insufficient to undermine the Board’s con-clusion. Id. Additionally, the Veterans Court did not rule that the Board was only required to consider treatise evidence for the purpose of impeachment if the evidence was supported by a medical opinion or independently supported a nexus.
As the above discussion demonstrates, Beck’s first and second arguments are premised on an incorrect reading of the Veterans Court’s opinion. The Veterans Court never made the rulings that Beck asserts are statutory misinterpretations. Because the Veterans Court did not make any of these rulings, this appeal does not involve a challenge to an interpretation relied upon by the Veterans Court. Beck’s first and second arguments, therefore, do not present an issue over which we have subject matter jurisdiction.
Turning to Beck’s last argument that we have rule of law subject matter jurisdiction pursuant to Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003), we conclude that we do not posses this type of jurisdiction in this case. In Morgan, we held that
in a case . . . in which the decision below regarding a governing rule of law would have been altered by adopting the position being urged, this court has jurisdiction to entertain the matter, even though the issue underlying the stated position was not “relied on” by the Veterans Court.
327 F.3d at 1363. On the basis of Morgan, Beck asserts that we have jurisdiction over this appeal because Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), established a rule of law that the Veterans Court failed to address and
BECK v. DVA 11
4 Expert testimony may be received from a suitably qualified expert under the following conditions: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. See Fed. R. Evid. 702.
that, if it had adopted his position, the outcome of the decision below would have been altered.
In Nieves-Rodriguez, the Veterans Court stated that the three factors discussed in 702 of the Federal Rules of Evidence4 are
important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence . . . . Therefore, where the Board favors one medical opinion over another, the Court will review the Board’s decision to determine whether these criteria have been met or properly applied.
22 Vet. App. at 302. Beck asserts that he urged the Veterans Court to find that the Board erred by failing to evaluate the sufficiency of the examiner’s report as required by Nieves-Rodriguez. Appellant’s Br. at 16. The Veterans Court did not mention the Nieves-Rodriguez factors when it evaluated the Board’s decision. On the basis of this omission, Beck asserts that, because “the decision below would have been altered by the [Veterans Court] adopting the position urged by Appellant,” we have rule of law jurisdiction over this case.
In response, the government argues that we do not have subject matter jurisdiction because Nieves-Rodriguez did not establish a rule of law within the meaning of Morgan, and even if it did, Beck has not established that the outcome below would have been different if the Veter-
BECK v. DVA 12
ans Court had adopted his position. Even assuming that Nieves-Rodriguez established a rule of law within the meaning of Morgan, an issue upon which we express no opinion, we still do not have subject matter jurisdiction over Beck’s appeal.
Beck’s argument fails because he has not established that the outcome below would have been different if the Veterans Court adopted his position. With respect to the Board’s decision to assign greater weight to the examiner’s opinion, the Veterans Court noted that the Board reached this decision “because [examiner’s opinion] was based on a review of the veteran’s medical history; whereas there is no evidence that the veteran’s private doctors ever reviewed his service treatment records.” A 38. The Board noted, moreover, that “[w]hile the showing of no back disability at the time of separation was of particular note to the VA examiner, none of the private opinions even mentioned the lack of a back disability in service or the lack of any treatment for a number of years after service.” Id.
In other words, the Board assigned greater weight to the examiner’s opinion for three reasons: (1) his opinion was based on a review of Beck’s entire medical history; (2) he was the only expert to consider the fact that Beck had no back disability at discharge; and (3) Beck did not receive any treatment for a number of years after discharge. These findings on the credibility and weight of the evidence are factual determinations that the Veterans Court reviews for clear error. 38 U.S.C. § 7261(a)(4). Of the three reasons cited by the Board, the treatise evidence only undermines the third reason because it disclosed that “most people with back pain do not seek medical treatment; back pain is typically recurrent; and the absence of back pain on any given day does not imply normal lumbar function.” A 66. In light of this fact, Beck
BECK v. DVA 13
cannot establish that if the Veterans Court had applied the Nieves-Rodriguez factors the outcome would have been different because, even if the treatise evidence was considered as part of this inquiry, the Board’s factual findings were still supported by two independent reasons; i.e., the factual findings were not clearly erroneous. Beck cannot, therefore, meet the requirements of Morgan.
For the reasons discussed above, we lack jurisdiction to hear this appeal because it does not involve the interpretation of a statute or rule of law jurisdiction under Morgan.
COSTS
Each party shall bear its own costs.
DISMISSED

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