Oscar R. Ball, Claimant-appellant, v. Jesse Brown, Secretary of Veterans Affairs, Respondent-appellee, 92 F.3d 1203 (Fed. Cir. 1996)

ORDER

The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(e) and to dismiss Oscar R. Ball's appeal for lack of jurisdiction. Ball has not responded.

In 1990, Ball sought to reopen his claims for entitlement to service connection for residuals of surgery on the left fifth toe and for a chronic acquired psychiatric disorder. The Board of Veterans Appeals denied his application on the ground that he had failed to submit new and material evidence. The Court of Veterans Appeals affirmed the Board's decision and concluded that the evidence provided by Ball was cumulative and did not link his claimed medical conditions to service. Ball appealed to this court.

Pursuant to 38 U.S.C. § 7292, not every decision entered by the Court of Veterans Appeals is appealable. Section 7292(a) provides that a party may only seek review of a decision of the Court of Veterans Appeals with respect to the validity or interpretation of any statute or regulation relied on by the court in making its decision. Further, except to the extent that an appeal presents a constitutional issue, 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." 38 U.S.C. § 7292(d) (2). If an appellant's case does not meet these criteria, § 7292(d) requires this court to dismiss the appeal.

In his informal brief, Ball contends that the Court of Veterans Appeals erred in neglecting to consider certain medical records and discharge summaries. Ball also argues that his lay testimony and that of his commanding officer should have been given more weight. In essence, Ball is challenging the weight given to the evidence, factual findings, and the application of the law to the facts of his case. As this court has no jurisdiction to conduct such an inquiry, Ball's 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) Each side shall bear its own costs.