Case: 12-7116 Document: 16 Page: 1 Filed: 01/03/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JAMES W. PERRY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7116
__________________________
Appeal from the United States Court of Veterans
Claims in case no. 10-1673, Judge William A. Moorman.
__________________________
ON MOTION
__________________________
Before BRYSON, LINN, and REYNA, Circuit Judges.
PER CURIAM.
ORDER
Upon review of the parties’ briefs, the court considers
whether to dismiss this appeal for lack of jurisdiction.
Case: 12-7116 Document: 16 Page: 2 Filed: 01/03/2013
JAMES PERRY V. SHINSEKI 2
Perry served on active duty from 1968 to 1979. His
claim for a service-connected back disability was first
denied in 1989. The Board of Veterans' Appeals and the
United States Court of Appeals for Veterans Claims
(Veterans Court) remanded his claim a number of times
for further factual findings. Most recently, Perry argued
to the Veterans Court that a 2009 medical opinion regard-
ing his back was inadequate because the examiner failed
to make several findings. He also argued that his obesity
is a result of his service-connected diabetes.
The Veterans Court found that the medical opinion
was adequate, and that it did not have jurisdiction over
his obesity claim because that issue had not been pre-
sented to the Board of Veterans' Appeals. The Veterans
Court denied Perry’s subsequent motion for reconsidera-
tion because it included a new argument, not previously
argued to the Board of Veterans Appeals.
This appeal followed. This court’s jurisdiction to
review decisions of the Veterans Court is limited by
statute. Under 38 U.S.C. § 7292(a), this court has juris-
diction over rules of law or the validity of any statute or
regulation, or an interpretation thereof, relied on by the
Veterans Court in its decision. This court may also
entertain challenges to the validity of a statute or regula-
tion and may interpret constitutional and statutory
provisions as needed for resolution of the matter. See
38 U.S.C. § 7292(c). In contrast, except where an appeal
presents a constitutional question, we lack jurisdiction
over challenges to factual determinations or laws or
regulations as applied to the particular case. See 38
U.S.C. § 7292(d)(2).
Although Perry was not required to file a legally im-
peccable submission to proceed on appeal, he was re-
quired to demonstrate that this court has jurisdiction, and
Case: 12-7116 Document: 16 Page: 3 Filed: 01/03/2013
3 JAMES PERRY V. SHINSEKI
he has failed to make such a showing. In his informal
brief, he indicated that he did not believe that the Veter-
ans Court decided any constitutional issues. He does
argue that the Veterans Court decision involved the
validity or interpretation of a statute. He cites to regula-
tions 38 C.F.R. §§ 3.307, 3.309, and 3.310, but does not
elaborate on his arguments. The Veterans Court decision
did not rely on or cite to these regulations, pertaining to
presumptive service connections.
Perry further refers to “the VA fraud of 2008” and ac-
cuses Veterans Affairs of “high crimes, misdemeanors,
waste, fraud, and abuse” without showing how these
allegations implicate his claim relating to service connec-
tion or the interpretation or validity of any statutes.
Moreover, any fraud claims that Perry may attempt to
advance now were not presented to the Veterans Court
and are therefore inappropriate to raise for the first time
on appeal. Forshey v. Principi,
284 F.3d 1335, 1351 (Fed.
Cir. 2002).
Because the court cannot discern an issue over which
it has jurisdiction, Perry’s appeal must be dismissed.
IT IS ORDERED THAT
(1) The appeal is dismissed.
(2) All pending motions are moot.
(3) Each side shall bear its own costs.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s24
