Anderson v. Shinseki , 558 F. App'x 1031 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LACY L. ANDERSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7111
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-4323, Judge Robert N. Davis.
______________________
Decided: March 21, 2014
______________________
DEANNE L. BONNER, Bonner Di Salvo, PLLC, of De-
troit, Michigan, argued for claimant-appellant.
ELIZABETH ANNE SPECK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent-appellee. On the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, MARTIN F. HOCKEY, JR., Assistant Director, and
JAMES SWEET, Trial Attorney. Of counsel on the brief was
2 ANDERSON v. SHINSEKI
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
United States Department of Veterans Affairs, of Wash-
ington, DC. Of counsel was MEGHAN D. ALPHONSO.
______________________
Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
PER CURIAM.
Lacy Anderson appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the denial of his request to reopen his
disability claim. Anderson v. Shinseki, No. 10-4323, 2012
WL 6727131 (Vet. App. Dec. 28, 2012) (unpublished).
Our jurisdiction over appeals from decisions of the
Veterans Court is limited. We may review challenges to
the validity or interpretation of a statute or regulation
relied on by the Veterans Court and may interpret consti-
tutional and statutory provisions “to the extent presented
and necessary to a decision.” 38 U.S.C. § 7292(c). Except
to the extent that an appeal presents a constitutional
issue, however, we have no jurisdiction to review a chal-
lenge to a “factual determination” or “law or regulation as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2).
Pursuant to 38 U.S.C. § 5108, a previously-denied
claim shall be reopened if a claimant submits “new and
material evidence.” We have held that such evidence is
required before a claim can be reopened. Barnett v.
Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Mr. Ander-
son argues that the Veterans Court erred in affirming the
determination of the Board of Veterans’ Appeals that his
claim could not be reopened because he failed to present
adequate “new and material evidence.” However, “the
question of whether evidence in a particular case is new
and material is either a factual determination . . . or the
application of law to the facts of a particular case . . . and
is, thus, not within this court’s appellate jurisdiction.” Id.
ANDERSON v. SHINSEKI 3
at 1383-84; see also Spencer v. Brown, 17 F.3d 368, 374
(Fed. Cir. 1994). Mr. Anderson’s attempt to frame his
challenge as a question of law is unconvincing. Cf. Liv-
ingston v. Derwinski, 959 F.2d 224, 225 (Fed. Cir. 1992)
(“[T]he mere recitation of a basis for jurisdiction by party
or a court[ ] is not controlling; we must look to the true
nature of the action.”).
Accordingly, we dismiss Mr. Anderson’s appeal for
lack of jurisdiction.
DISMISSED
COSTS
No costs.