Perry v. McDonald ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN L. PERRY,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-2329
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-3362, Judge William P.
Greene, Jr.
______________________
Decided: November 8, 2016
______________________
KEVIN L. PERRY, El Centro, CA, pro se.
DAVID MICHAEL KERR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
CLAUDIA BURKE; AMANDA BLACKMON, BRIAN D. GRIFFIN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 PERRY v. MCDONALD
______________________
Before REYNA, LINN, and WALLACH, Circuit Judges.
PER CURIAM.
Mr. Kevin L. Perry appeals a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying his request for reconsideration. We
dismiss Mr. Perry’s appeal for lack of jurisdiction, as
Mr. Perry challenges only factual findings and the appli-
cation of facts to law, which are beyond the jurisdiction of
this court. 1
BACKGROUND
Mr. Perry served on active duty in the U.S. Army
from November 1990 to October 1994. In November 1994,
he filed a claim for veterans’ benefits, seeking disability
compensation for a skin condition, an elbow injury, and
an ankle injury. In 1995, a Department of Veterans
Affairs (“VA”) regional office (“RO”) granted service con-
1 Mr. Perry appears to be subject to an injunction
from filing new civil actions in federal courts without
obtaining leave of the court. See, e.g., Perry v. Veolia
Transp., No. 11-CV-176-LAB-RBB, 2011 WL 4566449, at
*11 (S.D. Cal. Sept. 30, 2011); Perry v. United States, 558
F. App’x 1004, 1008 (Fed. Cir. 2014) (directing the Court
of Federal Claims to bar further filings by Mr. Perry);
Perry v. United States, No. 14-587C, 2014 U.S. Claims
LEXIS 1484 (Fed. Cl. Dec. 23, 2014) (detailing Mr. Perry’s
vexatious litigation). It is not clear from the record
whether leave was obtained by Mr. Perry when filing in
the Veterans Court, or whether a copy of the injunction
was filed with the case as set forth by the district court’s
order. We dismiss this case on other grounds today, but
we remind Mr. Perry that this injunction should be ad-
dressed in any future filings with the federal courts.
PERRY v. MCDONALD 3
nection for the skin condition, but denied his claim of
service connection for the ankle and elbow injuries.
Mr. Perry did not appeal this determination and it be-
came final.
In 2001, Mr. Perry submitted additional evidence. He
requested an increased disability rating for his skin
condition and to reopen his previously denied claim for an
ankle disability. He also sought disability compensation
for various other conditions he alleged were service con-
nected. The RO denied the claims. Mr. Perry appealed
this determination, and the VA undertook additional
evidentiary development.
In 2005, the Board of Veterans’ Appeals (“Board”) is-
sued a decision denying Mr. Perry’s claims for service
connection for disabilities of the hips, knees, and ankles.
The Board remanded an issue relating to the original
1995 rating decision for the skin condition.
Mr. Perry appealed the Board’s decision to the Veter-
ans Court. He argued that the Board failed to consider
whether the claimed conditions were “aggravated by his
in-service right ankle injury.” In its 2007 decision, the
Veterans Court rejected this argument and affirmed the
Board’s decision. Thereafter, Mr. Perry petitioned the
Board for reconsideration of the 2005 Board decision. The
Board dismissed the motion for lack of jurisdiction.
Mr. Perry then requested that the RO reopen the pre-
viously disallowed claims based on newly submitted
evidence. The RO concluded that the evidence was insuf-
ficient to reopen the disallowed claims. Mr. Perry ap-
pealed from this determination and continued to submit
additional evidence in support of his previously disal-
lowed claims. In 2015, the Board again denied
Mr. Perry’s claims, noting that Mr. Perry offered no new
or different theories. Mr. Perry appealed from that deci-
sion to the Veterans Court. In June 2016, the Veterans
Court affirmed the Board’s determination that new and
4 PERRY v. MCDONALD
material evidence had not been presented to reopen
Mr. Perry’s claims.
In his appeal to the Veterans Court, Mr. Perry chal-
lenged the Board’s finding about the materiality of vari-
ous documents he submitted. The Veterans Court found
that Mr. Perry failed to demonstrate how these docu-
ments were directly relevant to his claim. The Veterans
Court affirmed the Board’s decision and this appeal
followed.
DISCUSSION
Our jurisdiction over appeals from the Veterans Court
is limited. This court has exclusive jurisdiction “to review
and decide any challenge to the validity of any statute or
regulation or any interpretation thereof . . . and to inter-
pret constitutional and statutory provisions, to the extent
presented and necessary to a decision.” 38 U.S.C.
§ 7292(c) (2006). Absent a constitutional issue, we lack
jurisdiction to “review (A) a challenge to a factual deter-
mination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. at
§ 7292(d)(2).
Here, Mr. Perry does not challenge the validity or in-
terpretation of a statute or regulation or any constitution-
al issue. See Informal Br. of Appellant 1. Rather,
Mr. Perry contends that the Board and the Veterans
Court erred in denying his request to reopen his prior
disallowed claims in light of new evidence. He re-argues
the merits of his claims and challenges the factual find-
ings of the Board. This court does not have jurisdiction to
review those issues.
For the reasons stated above, we find that we are
without jurisdiction to consider this appeal and must
therefore dismiss this case.
DISMISSED
PERRY v. MCDONALD 5
COSTS
Costs to the United States.