Gregory v. Shulkin, 684 F. App'x 966

Rebecca Gregory appealed after the Court of Appeals for Veterans Claims affirmed denial of service connection for her husband Randall Gregory’s death.
Randall Gregory served on active duty 1969–1971 and had service-connected lumbar spine disability and a nondisplaced fracture of the right great toe; he died in 2008 of ventricular fibrillation.
Gregory argued the death was connected to the lumbar spine disability or its medication; VA and the Board found medical records did not support service-related hypertension or that a service-connected condition caused or contributed to death.
The Board found some of Ms. Gregory’s evidence contradicted by objective medical records and did not conclude the evidence was in equipoise.
The Veterans Court affirmed the Board; Ms. Gregory then argued on appeal that VA should have applied 38 C.F.R. § 3.102 (benefit of the doubt when evidence is in approximate balance).
The Federal Circuit dismissed the appeal for lack of jurisdiction because the claim challenged the Board’s factual findings rather than a legal or constitutional question.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether VA erred by not applying the benefit-of-the-doubt rule (38 C.F.R. § 3.102) in denying service connection for death	Gregory: record was in equipoise, so VA must give benefit of the doubt	Board/Veterans Court: evidence was not in equipoise; findings are factual	Dismissed for lack of jurisdiction — this is a challenge to factual determinations beyond review

Harlston v. Shinseki, [citation="455 F. App'x 992"] (Fed. Cir. 2012) (disagreement with Board factual findings and application of law to facts is not reviewable by this court)