Bastien v. Shinseki — Federal Circuit lacks jurisdiction to reweigh factual evidence; Rizzo controls VA expert competency challenge

Mr. Bastien served from 1972 to 1976 and worked in a radiation facility where he handled monkeys used in radiation experiments. After his death from pneumonia resulting from Waldenström’s macroglobulinemia, his widow sought DIC and related benefits based on alleged in-service ionizing radiation exposure. The Board found the evidence conflicted on both radiation dose and medical nexus, and it assigned greater probative value to VA physicians’ opinions concluding that the cancer was unlikely to be caused by service radiation exposure. The Veterans Court affirmed, and the Federal Circuit in turn held that most of the widow’s arguments merely disputed factual findings and the Board’s weighing of evidence, which the court lacked jurisdiction to review under 38 U.S.C. § 7292(d)(2). The court further held that Rizzo controlled the expert-qualification issue: unless the claimant specifically challenges a VA expert’s competence or qualifications, VA is not required to present affirmative proof of the physician’s expertise before the Board may rely on the opinion. Finally, the court upheld the Veterans Court’s decision to strike an opening brief that cited nonprecedential opinions in violation of its rules. The case matters primarily for jurisdiction and evidentiary strategy in Federal Circuit appeals, and for preserving a concrete, specific challenge if a claimant intends to contest a VA medical expert’s competency.

The Federal Circuit lacks jurisdiction to review the Veterans Court’s factual determinations or the Board’s weighing of conflicting evidence, and VA need not affirmatively establish a medical expert’s qualifications unless the claimant specifically challenges that expert’s competence before the Board.

On appeal to the Federal Circuit, framing a dispute as evidentiary disagreement will usually fail. If counsel intends to attack a VA medical opinion, the challenge to competence must be specific and preserved, not a generalized objection to employment or bias.

It defines the boundary between reviewable legal questions and unreviewable factual disputes in veterans appeals, and it reinforces how to preserve an expert-competency argument. Practitioners should expect the Board’s weighing of competing medical opinions to stand if the record shows actual consideration and a reasoned explanation.

Improper Weighing of Medical Evidence [Evidentiary Errors]

A widow appeals a Board denial after the Board credits a VA oncologist over a private doctor on radiation nexus. On Federal Circuit review, the argument that the Board should have believed the private opinion will usually be dismissed as a factual challenge, unless a specific legal or competency issue is preserved.

Use this case to limit Federal Circuit review arguments to actual legal questions, and to defend or attack a VA medical opinion only when the record shows a specific competence challenge. It is also useful to support enforcement of Veterans Court briefing rules.

Rizzo v. Shinseki, Johnson v. Derwinski, Evans v. West, Carbino v. West