Gebhart v. Shinseki

NOTE: This order is nonprecedential United States Court ofA1;1peaIs for the FederaI Circuit OLIVER C. GEBHART, Claimant-Appellant, V. - ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFA1RS, ` Respondent-Appellee. 2010-7067 Appeal from the United States Court of Appea1s for Veterans C1aims in case n0. 09-1682, Chief Judge Wi}1iam P. Greene, Jr. ON MOTION Before L1NN, DYK, and PRosT, Circuit Judges. PER CURLAM ORDER ' The Secreta1'y of Vet`erans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss O1iver C. Gebhart’s appeal in this case, or in the alternatiVe, moves to summarily affirm the judgment of the United States GEBHART V. DVA 2 Court of Appeals for Veterans Claims. Gebhart moves to consolidate this appeal with 2010-7050. The Secretary opposes. The United States Court of Appeals for Veterans Claims dismissed Gebhart’s appeal for lack of jurisdiction. Specifically the court determined that Gebhart failed to provide any evidence that he was appealing a Hnal deci- sion of the Board of Veterans’ Appeals decision. Gebhart filed an appeal with this court seeking review of that decision The court’s jurisdiction to review decisions of the C0urt of Appeals for Veterans Claims is limited. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. _Cir. 2002) (en banc). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the validity of any statute or regulation, or an interpretation thereof relied on by the court in its decision. This court may also entertain chal- lenges to the validity of a statute or regulation, and to interpret constitutional and statutory provisions as needed for resolution of the matter, 38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitu- tional question, this court lacks jurisdiction over chal- lenges to factual determinations or laws or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2). ln his informal brief, Gebhart appears to only make various arguments regarding his medical condition. However, because the Court of Appeals for Veterans Claims dismissed Gebhart’s appeal in that court for lack of jurisdiction and did not address the merits of his claim, these arguments are not before us. To the extent that Gebhart seeks to challenge whether the Court of Appeals for Veterans Claims correctly determined that it lacked jurisdiction over his appeal, we summarily affirm. When the Board has not rendered a final and appealable deci- sion on a particular matter, the Court of Appeals for 3 GEBHA.RT V. DVA Veterans Claims has no jurisdiction to consider any appeal. Accordingly, IT ls ORDERED THAT: (1) The Secretary’s motion to dismiss is denied. (2) The Secretary’s motion to summarily affirm is granted (3) Gebhart’s motion to consolidate is denied as moot. (4) Each side shall bear its own costs. (5) All pending motions are moot. FoR THE CoURT ocf 2 6 2010 /s/ Jan Horbaly Date J an Horbaly Clerk cc: Oliver C. Gebhart F|LE|} De1isa M. Sanchez, Esq. 03 320 ocr 2 6 ama .lAN HORBAL¥ Ol.ERK