       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

              LAWRENCE L. DUPREE,
                Claimant-Appellant,

                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2011-7092
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in 09-2023, Judge Donald L. Ivers.
              __________________________

                Decided: August 9, 2011
              __________________________

   LAWRENCE L. DUPREE, of Houston, Texas, pro se.

    STEPHEN C. TOSINI, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and
FRANKLIN E. WHITE, JR., Assistant Director. Of counsel on
DUPREE   v. DVA                                          2


the brief was DANA RAFFAELLI, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
              __________________________

 Before RADER, Chief Judge, LOURIE and PROST, Circuit
                       Judges.
PER CURIAM.

    Lawrence L. Dupree, pro se, appeals from a decision
of the Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the Board of Veterans’ Appeals
(“Board”) decision denying Mr. Dupree service connection
for his lung condition. Because Mr. Dupree raises only
factual contentions, we dismiss for lack of jurisdiction.

                     I. BACKGROUND

    Mr. Dupree served on active duty as a cook in the
Army from July 1970 to January 1972. He complained of
chest pain in October 1970, but an examination was
negative. Mr. Dupree also sought treatment in 1970 for
post-nasal drainage and a nonproductive cough. The
chest x-ray resulting from this examination was negative.
Mr. Dupree’s January 1972 separation examination
revealed a normal chest and lungs.

    In January 2001, Mr. Dupree was hospitalized with
respiratory ailments. A radiology scan revealed a condi-
tion consistent with pneumonia, and a computed tomo-
graphy (“CT”) scan discovered bullous lungs. Mr. Dupree
was diagnosed with pneumonia, empyema, acute renal
failure, acute respiratory distress syndrome, and a history
of heavy alcohol use. He was eventually discharged from
the hospital in February 2001.
3                                             DUPREE   v. DVA


    While Mr. Dupree had no significant medical history
before this 2001 hospitalization, records indicate that he
had a “30 pack year history” of tobacco use, a history of
drinking three to four beers a day during the week, six to
twelve beers per day on weekends, and a remote history of
marijuana use in the 1960s. Mr. Dupree disputes this
characterization of his marijuana use, asserting that he
did not use the substance until he joined the Army in
1970.

    Later, in April 2001, a chest x-ray indicated that Mr.
Dupree probably had fibrosis, as well as mild chronic
obstructive pulmonary disease (“COPD”). The following
month, Mr. Dupree “was assessed with chronic COPD
with obstructive airflow, shortness of breath, and fatigue.”
Citing a lung condition, Mr. Dupree filed a claim for
service connection in October 2001. The Department of
Veterans Affairs (“VA”) Regional Office (“RO”) denied the
claim in December of that year.

     In September 2002, a private radiologist concluded
that Mr. Dupree had “[i]nterstitial fibrosis typical of
previous occupational exposure to silica dust diagnostic of
silicosis.” Mr. Dupree then renewed his claim for service
connection by submitting a statement in May 2003 assert-
ing that he was exposed to silica dust while working as a
cook in the Army. The VA denied this claim. Mr. Dupree
appealed to the Board, which remanded the case upon the
parties’ joint request.

    In December 2008, Mr. Dupree was diagnosed with
COPD/emphysema after undergoing a VA medical exami-
nation. The examiner determined that (i) Mr. Dupree’s
pulmonary condition was less likely than not related to
his service as an Army cook; (ii) Mr. Dupree’s 2001 pneu-
monia was “more likely than not” caused by his bullous
DUPREE   v. DVA                                           4


lungs; and (iii) those bullous lungs “were caused by alco-
hol use as well as . . . chronic tobacco use.” The examiner
also concluded that Mr. Dupree showed no signs of having
silicosis, asbestosis, or fibrosis. Finally, the examiner
noted that “[c]urrent medical literature does not list
bullous lungs caused by exposure to asbestosis or silicosis.
In addition it does mention that bullous lungs can cause .
. . pneumonia as well as copd/emphysema.”

    Relying on the results from this medical examination,
the Board denied Mr. Dupree’s request for a service
connection. In particular, the Board found “no competent
medical evidence linking the Veteran’s current lung
disorder to his service.”

    The Veterans Court affirmed, explaining the Board
did not err in relying on the December 2008 VA medical
opinion to find no service connection because that opinion
“reflects that the examiner reviewed the appellant’s
claims file and medical records, which included, inter alia,
his CT scans, x-ray reports, and Dr. Levine’s medical
opinion.” The court also noted that the 2008 VA medical
opinion shows that the examiner considered Mr. Dupree’s
medical history, including his diagnosis of pneumonia in
2001, and reviewed medical literature. Finally, the court
explained that “the fact that the examiner did not ex-
pressly reference all of the records identified by [Mr.
Dupree] . . . did not render the examination inadequate,
especially where, as here, the examination report reflects
a thorough and detailed review of the medical evidence.”

    Mr. Dupree appealed the Veterans Court’s decision to
this court.
5                                              DUPREE   v. DVA


                      II. DISCUSSION

    Our jurisdiction to review decisions by the Veterans
Court is limited. We have exclusive jurisdiction “to
review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof . . . and
to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). Absent a constitutional issue, we lack jurisdic-
tion to 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.” Id. § 7292(d)(2).

    Mr. Dupree raises two primary arguments on appeal.
First, he argues that the Veterans Court misapplied the
relevant provisions of the VA Adjudications Procedure
Manual M21-1 (“M21-1”). 1 The M21-1 provisions at issue
in this case involve the latent periods for diseases caused
by asbestos. According to Mr. Dupree, his respiratory
condition, which he asserts was caused by asbestos, has a
latent period ranging from ten to forty-five or more years
(meaning ten to forty-five years, or more, can elapse
between the date of exposure to asbestos and the date the
disease fully develops). Mr. Dupree first complained of
his respiratory condition in 1970 and full development
allegedly occurred thirty-one years later in 2001. There-
fore, Mr. Dupree asserts that his disease fell within the
latent period prescribed by M21-1. Mr. Dupree also
argues that the evidence in the record clearly supports a
nexus between his exposure to asbestos while in the


        1   M21-1 “is an internal manual used to convey
guidance to VA adjudicators” and does not have the force
of a statute or regulation. Haas v. Peake, 525 F.3d 1168,
1196 (Fed. Cir. 2008).
DUPREE   v. DVA                                          6


military and the condition that eventually developed in
2001 before the latent period expired.

     The Veterans Court addressed this argument, ex-
plaining that the Board correctly considered the latent
period for asbestos-caused diseases set out in M21-1. The
Board ultimately found, however, that the most probative
evidence in the case (i.e., the 2008 medical report) sug-
gested that Mr. Dupree did not have a disease caused by
exposure to asbestos. This Board conclusion, which was
affirmed by the Veterans Court, undermined Mr.
Dupree’s M21-1 latency argument because the guideline
Mr. Dupree relies on applies primarily to diseases caused
by asbestos.

    As evident above, adopting Mr. Dupree’s argument
that his condition falls within the latent period estab-
lished in M21-1 would require making evidentiary conclu-
sions regarding a nexus between asbestos and Mr.
Dupree’s condition that would conflict with the Board’s
determinations. We lack jurisdiction to make such con-
clusions. See 38 U.S.C. § 7292(d)(2) (prohibiting this
court from exercising jurisdiction over “challenges to
factual determinations” in veterans cases). Therefore, we
cannot grant Mr. Dupree the relief he desires under M21-
1.

    In his second argument on appeal, Mr. Dupree asserts
that the Veterans Court erred in affirming the Board’s
reliance on the fact that marijuana contributed to his lung
condition. In particular, Mr. Dupree argues that he did
not use marijuana before he joined the Army and that this
substance did not contribute to the onset of his condition.
According to Mr. Dupree, the substance merely aggra-
vated an already-existing condition. Once again, conclud-
ing as Mr. Dupree suggests would require us to upset
7                                          DUPREE   v. DVA


factual determinations made by the Board regarding the
impact of his marijuana use on his lung condition, which
were affirmed by the Veterans Court. We lack jurisdic-
tion to review challenges to such factual determinations.
See id.

   For the foregoing reasons, we dismiss Mr. Dupree’s
appeal for a lack of jurisdiction.

                          COSTS

    Each party shall bear its own costs.

                      DISMISSED
