Elvin A. Allen, Claimant-appellant, v. Jesse Brown, Secretary of Veterans Affairs, Respondent-appellee, 74 F.3d 1258 (Fed. Cir. 1996)
Annotate this CaseBefore ARCHER, Chief Judge, BENNETT, Senior Circuit Judge, and MAYER, Circuit Judge.
ON MOTION
ORDER
ARCHER, Chief Judge.
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(e) and to dismiss Elvin A. Allen's appeal for lack of jurisdiction. The Secretary also moves for leave to file an overlong motion. Allen opposes.
In 1980, the Board of Veterans Appeals affirmed the regional office's withdrawal of service connection for arthritis of Allen's knees. In 1988, Allen filed a request to reopen his claim for entitlement to service connection for arthritis of the knees. The Board of Veterans Appeals denied his claim on the ground that the evidence submitted by Allen was not new and material. The Court of Veterans Appeals summarily affirmed the Board's decision, stating that neither the medical evidence nor Allen's statements and testimony could be regarded as new and material evidence. Allen appealed to this court.
Under 38 U.S.C. § 7292, this court may review only challenges to the validity or interpretation of a statute or regulation, or to the interpretation of a constitutional provision, that the Court of Veterans Appeals relied on in its decision. If an appeal to this court from the Court of Veterans Appeals does not challenge the validity or interpretation of a statute or regulation, or the interpretation of a constitutional provision, Sec. 7292(d) requires this court to dismiss the appeal. That section states that this court "may not 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."
In his informal brief, Allen contends that the Court of Veterans Appeals erred because it did not reconsider the Board's withdrawal of service connection for arthritis in 1980. In essence, Allen is challenging findings of fact and the application of the law to the facts of his case. As this court has no jurisdiction to conduct such an inquiry, this appeal must be dismissed. See Livingston v. Derwinski, 959 F.2d 224, 225-26 (Fed. Cir. 1992).
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary's motion to waive the requirements of Fed. Cir. R. 27(e) is granted.
(2) The Secretary's motion to dismiss is granted.
(3) The Secretary's motion for leave to file an overlong motion is granted.
(4) Each side shall bear its own costs.
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