Browder, Jr. v. Nicholson , 185 F. App'x 950 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-7029
JOE A. BROWDER, JR.,
Claimant-Appellant,
v.
R. JAMES NICHOLSON,
Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: June 9, 2006
__________________________
Before SCHALL, LINN, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Joe A. Browder, Jr., appeals the decision of the United States Court of Appeals
for Veterans Claims (“Veterans Court”) denying his claim for service connection.
Browder v. Nicholson, No. 04-352 (Vet. App. Oct. 13, 2005). We dismiss for lack of
jurisdiction.
DISCUSSION
I.
Mr. Browder served on active duty in the U.S. Army from August 1974 to August
1975. Browder, slip op. at 1. In September of 1996 a Department of Veterans Affairs
(“VA”) Regional Office denied Mr. Browder’s claim for service connection for alcohol
abuse and polysubstance dependence.
Mr. Browder appealed that decision to the Board of Veterans Appeals (“Board”).
On June 16, 2003, the Board denied Mr. Browder’s claim for service connection, finding
that drug addiction and alcohol dependency are not compensable disabilities. Browder
v. Nicholson, No. SS 406 82 6139 (Bd. Vet. App. June 16, 2003).
Mr. Browder appealed to the Veterans Court, arguing that the VA committed
certain procedural errors, although he did not challenge the Board’s legal conclusion.
See Browder, slip op. at 1. The Veterans Court affirmed the Board’s denial of Mr.
Browder’s claim, explaining that “[i]rrespective of whether alcohol abuse and
polysubstance dependence are developed during service, the law prohibits an award of
service connection for those conditions.” Id., slip op. at 1-2 (citing 38 U.S.C. § 105(a);
38 C.F.R. § 3.301(d)).
This appeal followed. We have jurisdiction over a final decision of the Veterans
Court pursuant to 38 U.S.C. § 7292(a).
II.
On appeal, we will set aside any legal interpretation of the Veterans Court that is
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
38 U.S.C. § 7292(d)(1). We may not, however, review a challenge to any factual
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determination or a challenge to a law or regulation as applied to the facts of a particular
case. 38 U.S.C. § 7292(d)(2); see Leonard v. Gober, 223 F.3d 1374, 1376 (Fed. Cir.
2000) (“Section 7292(d)(2) expressly bars us from reviewing challenges to the
application of law to the facts of a particular case. We must therefore dismiss Leonard’s
appeal [regarding the application of equitable tolling to the facts of her case] for lack of
subject matter jurisdiction.”); Albun v. Brown, 9 F.3d 1528, 1529-30 (Fed. Cir. 1993)
(recognizing that “in appeals from the Court of Veterans Appeals, Congress denied this
court the usual broad scope of review and limited this court’s review to certain statutory,
regulatory, and constitutional issues”).
On appeal, Mr. Browder contends that the Veterans Court failed to properly
review his claim. He asserts that the Veterans Court violated 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.319(b)(1) based on the facts of his case. The government responds that
this court lacks jurisdiction over the appeal because the Veterans Court’s decision
involved the application of law to fact.
The government is correct that we lack jurisdiction. The Veterans Court applied
the law to the facts. As noted, we may not review a challenge to a factual determination
or a challenge to a law or regulation as applied to the facts of a particular case. Mr.
Browder does not suggest that the Veterans Court misinterpreted any statutes or
regulations. Instead, he argues the facts of his case, something that this court cannot
review. We do not have jurisdiction to review the Veterans Court’s determination in this
case.
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For the foregoing reasons, we dismiss Mr. Browder’s appeal for lack of
jurisdiction.
No costs.
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