Charles J. Carrick, Claimant-appellant, v. Jesse Brown, Secretary of Veterans Affairs, Respondent-appellee, 33 F.3d 64 (Fed. Cir. 1994)

The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(e) and to dismiss Carrick's appeal for lack of jurisdiction. Carrick opposes.

Carrick sought service connection for residuals of a right eye injury. Carrick had previously sought service connection for the condition. The Court of Veterans Appeals summarily affirmed the Board of Veterans Appeals' decision that determined Carrick had not submitted new and material evidence to justify reopening Carrick's claim.

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."

On appeal to this court, Carrick argues that the Court of Veterans Appeals should have reviewed all of his evidence "on a cumulative basis" and that the evidence was viewed with prejudice. Carrick challenges only factual determinations and the application of the law to his claim. 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) Each side shall bear its own costs.