Burnley v. Shulkin, 709 F. App'x 998

John Burnley served in the Marine Corps for a short period in February 1972 and was discharged for mental inaptitude; his discharge exam showed no abnormalities and he denied recurrent back pain at discharge.
Burnley filed a VA claim in 2006 asserting a current lower-back disability caused by an assault by a fellow Marine in 1972.
At Board hearings Burnley testified about the in-service assault and claimed treatment for back problems in 1972–1976; two friends provided corroborating lay testimony about post-service gait changes.
A private physician in 2012 opined the back injury likely dated to February 1972 based largely on Burnley’s history and a current exam; a VA examiner concluded the injury was less likely than not related to service after reviewing the record.
The Board found Burnley’s testimony and supporting evidence not credible (noting inconsistent timing statements, lack of contemporaneous records, and reliance on the veteran’s self-report) and credited the VA medical opinion; the Veterans Court affirmed.
Burnley appealed to the Federal Circuit arguing improper weighing of evidence and a purported due-process issue; the court dismissed for lack of jurisdiction because the appeal raised factual credibility and weighing issues outside its review authority.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board/Veterans Court erred in credibility and benefit-of-the-doubt application	Burnley: Board misweighed evidence and should have given benefit of doubt under 38 U.S.C. § 5107	Government: Board’s credibility findings were reasonable and supported by record; VA medical opinion entitled to greater weight	Court: Dismissed for lack of jurisdiction — credibility/weighing are factual issues outside this court’s review
Whether credibility determination implicates due process / constitutional review	Burnley: Characterizes error as a due-process violation to enable appellate review	Government: Substance is a factual challenge; calling it constitutional does not create jurisdiction	Court: Recharacterization as constitutional does not confer jurisdiction; appeal dismissed

Gardin v. Shinseki, 613 F.3d 1374 (Fed. Cir. 2010) (establishes that credibility determinations are factual matters beyond this court’s jurisdiction)
Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (explains appellate court cannot reweigh evidence presented to the Board)
Helfer v. West, 174 F.3d 1332 (Fed. Cir. 1999) (holding that labeling a factual complaint as constitutional does not create appellate jurisdiction)
Howlett v. Shinseki, [citation="431 F. App'x 925"] (Fed. Cir. 2011) (per curiam) (reiterating that constitutional characterization of a factual dispute is insufficient to establish jurisdiction)