Judito E. Mira, Claimant-appellant, v. Jesse Brown, Secretary of Veterans Affairs, Respondent-appellee, 36 F.3d 1107 (Fed. Cir. 1994)

The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(e) and to dismiss Judito E. Mira's appeal for lack of jurisdiction. Mira has not filed a response.

On September 18, 1990, the Board of Veterans Appeals issued a decision that Mira was not entitled to an earlier date for his claim for an apportionment of his veteran father's disability compensation benefits. Mira did not file a notice of appeal of the Board's decision until August 30, 1993. The Court of Veterans Appeals dismissed Mira's petition for review as untimely.

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."

The arguments contained in Mira's informal brief pertain only to the underlying merits of his case. However, the Court of Veterans Appeals' decision did not reach the merits of Mira's case. As this court has no jurisdiction to conduct the inquiry that Mira requests, 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.