Aspry v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT ASPRY, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7137
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-3020, Judge William A.
Moorman.
__________________________
Decided: February 23, 2012
__________________________
SANDRA W. WISCHOW, Goodman, Allen & Filetti, of
Richmond, Virginia, argued for claimant-appellant.
MICHAEL P. GOODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. On the brief were TONY WEST, Assistant
ASPRY v. DVA 2
Attorney General, JEANNE E. DAVIDSON, Director, BRIAN
M. SIMKIN, Assistant Director, and SCOTT D. AUSTIN,
Assistant Director. Of counsel on the brief were MICHAEL
J. TIMINSKI, Deputy Assistant General Counsel, and
RACHAEL T. SHENKMAN, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC.
__________________________
Before PROST, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
Robert Aspry, Jr., appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”), denying his claim based on hearing loss. Al-
though Mr. Aspry frames the issue on appeal as whether
the Veterans Court applied the correct legal standard, in
effect he disagrees with the application of the “clear and
unmistakable evidence” standard of 38 U.S.C. § 1111 to
the facts of his case. We do not have jurisdiction to re-
view the Veterans Court’s application of the law to the
facts unless it presents a constitutional issue. Jackson v.
Shinseki, 587 F.3d 1106, 1109 (Fed. Cir. 2009); 38 U.S.C.
§ 7292(d)(2); cf. Livingston v. Derwinski, 959 F.2d 224,
225 (Fed. Cir. 1992) (“[T]he mere recitation of a basis for
jurisdiction by either party or a court[] is not controlling;
we must look to the true nature of the action.”).
Accordingly, we dismiss Mr. Apsry’s appeal for lack of
jurisdiction.
COSTS
Each party shall bear its own costs.
DISMISSED