Gonzales v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BENJAMIN E. GONZALES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7070
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-943, Judge Lawrence B. Hagel.
______________________
Decided: February 11, 2014
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
ELIZABETH M. HOSFORD, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With her on the brief were STUART
F. DELERY, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and SCOTT D. AUSTIN, Assistant
Director. Of counsel on the brief were MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel, and MARTIE
2 GONZALES v. SHINSEKI
S. ADELMAN, Attorney, United States Department of
Veterans Affairs, of Washington, DC.
______________________
Before LOURIE, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Benjamin Gonzales appeals from the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals denying Gonzales’s entitlement to a
rating of total disability—based upon individual unem-
ployability—for a time prior to December 5, 2008. Gonza-
les v. Shinseki, No. 11-943, 2012 WL 6554801 (Vet. App.
Dec. 17, 2012) (unpublished).
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. We may only review questions
relating to the interpretation of constitutional and statu-
tory provisions. 38 U.S.C. § 7292(c). Unless a constitu-
tional issue is presented, we have no jurisdiction to review
questions of fact or the application of a law or regulation
to a particular set of facts. Id. § 7292(d)(2).
Gonzales argues that the Veterans Court misinter-
preted “substantial gainful occupation” in 38 C.F.R.
§ 4.16. The Veterans Court, however, did not interpret the
regulation. The Veterans Court’s opinion only applied
§ 4.16 to the facts of Gonzales’s case. In the absence of a
constitutional issue, we do not have jurisdiction to review
the Veterans Court’s application of a regulation to the
facts. 38 U.S.C. § 7292(d)(2); Jackson v. Shinseki, 587
F.3d 1106, 1109 (Fed. Cir. 2009); cf. Livingston v. Derwin-
ski, 959 F.2d 224, 225 (Fed. Cir. 1992) (“[T]he mere recita-
tion of a basis for jurisdiction by party or a court[ ] is not
controlling; we must look to the true nature of the ac-
tion.”).
GONZALES v. SHINSEKI 3
Accordingly, we dismiss Gonzales’s appeal for lack of
jurisdiction.
DISMISSED
COSTS
No costs.