Zanders v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GARY P. ZANDERS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7119
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-2123, Judge Alan G.
Lance, Sr.
____________________________
Decided: December 9, 2010
____________________________
GARY P. ZANDERS, St. Louis, Missouri, pro se.
AMANDA L. TANTUM, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, and JEANNE E. DAVIDSON, Director. Of
ZANDERS v. DVA 2
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and TRACEY P. WARREN,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, LOURIE, Circuit Judge, and
WHYTE, District Judge ∗
PER CURIAM.
Gary P. Zanders (“Zanders”) appeals from the decision
of the United States Court of Appeals for Veterans Claims
(“the Veterans Court”) affirming a decision of the Board of
Veterans’ Appeals (“the Board”) that denied Zanders’
claim to reopen a previously denied claim for service
connection for bipolar disorder. Zanders v. Shinseki, No.
8-2123, 2009 WL 2917790 (Vet. App. Sept. 14, 2009).
Because Zanders’ appeal fails to raise a legal or constitu-
tional issue within this court’s jurisdiction, we dismiss.
BACKGROUND
Zanders served on active duty in the U.S. Army from
October 1979 to September 1982 and from January 1991
to March 1991. In October 1991, Zanders filed a claim
with the Department of Veterans Affairs (“VA”) Regional
Office (“RO”) in St. Louis, Missouri, for entitlement to
service connection for an acquired psychiatric disorder, to
include bipolar affective disorder, and alcohol dependence.
Id. at *1; A38. The RO denied his claim in February
1992, and the Board affirmed in March 1995, concluding
∗
The Honorable Ronald M. Whyte, United States
District Court for the Northern District of California,
sitting by designation.
3 ZANDERS v. DVA
that Zanders’ alcohol dependence was not service related
and that his bipolar disorder had predated service and
had not been aggravated by service. In reaching the
latter conclusion, the Board relied on statements from the
veteran, service medical records, VA medical examination
reports dated between August 1986 and April 1991,
private medical records dated between 1972 and July
1990, records from the Social Security Administration
(“SSA”), an April 1991 Medical Evaluation Board report,
and VA treatment records dated between May 1991 and
November 1993.
In January 2003, Zanders sought to reopen his claim
for entitlement to service connection for bipolar disorder.
In response, the RO sent Zanders a letter informing him
that in order to reopen his claim for bipolar disorder, he
had to provide the VA new and material evidence. The
new evidence provided included additional statements by
the veteran as well as additional SSA and private treat-
ment records, both showing treatment for bipolar disor-
der. In August 2003, the RO denied Zanders’ request to
reopen his claim, and Zanders filed a timely Notice of
Disagreement and appealed to the Board. The Board
affirmed the RO’s decision on April 16, 2008, finding the
evidence new but not material. Zanders appealed to the
Veterans Court. In his informal brief to the Veterans
Court, Zanders challenged not only the Board’s decision
not to reopen his bipolar disorder, but also the Board’s
failure to reopen his claim for alcohol dependence.
The Veterans Court issued a memorandum decision
on September 14, 2009, in which it affirmed the Board’s
decision. Zanders, 2009 WL 2917790, at *1. With regard
to Zanders’ bipolar disorder claim, the Veterans Court
held that the Board did not clearly err in finding that the
submitted evidence, while new, was not material because
ZANDERS v. DVA 4
it “did not medically show either an incurrence or aggra-
vation of [Zanders’] bipolar disorder while he was in
service,” and instead “only confirmed what was known
when the RO initially denied service connection, that
[Zanders] suffers from a bipolar disorder.” Id. at *2.
With regard to Zanders’ claim to reopen a claim for ser-
vice connection for alcoholism, the Veterans Court held
that it lacked jurisdiction over the issue because it had
not first been presented to and adjudicated by the RO,
and accordingly dismissed the claim. Id. at *3.
Zanders timely appealed to this court. We have juris-
diction pursuant to 38 U.S.C. § 7292(c).
DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute. 38 U.S.C. § 7292.
We “have exclusive jurisdiction to review and decide any
challenge to the validity of any statute or regulation or
any interpretation thereof [by the Veterans Court] . . . ,
and to interpret constitutional and statutory provisions,
to the extent presented and necessary to a decision.” Id.§ 7292(c). We may not, however, “review (A) a challenge
to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” Id.
§ 7292(d)(2).
Zanders raises no legal or constitutional issues on ap-
peal. In fact, in his informal brief, Zanders answers “no”
to the question whether the Veterans Court’s decision
involved the validity or interpretation of a statute or
regulation and to the question whether the Veterans
Court decided any constitutional issues. Rather, Zanders
simply states that the Veterans Court decided “not in
5 ZANDERS v. DVA
favor [of] claimant,” and he asks this court to “[decide] in
favor of claimant.”
In effect, Zanders seeks review of the factual findings
underlying the Veterans Court’s decision to uphold a
finding of no new and material evidence to reopen his
claim for service connection for bipolar disorder, and to
dismiss for lack of jurisdiction his claim to reopen his
alcohol dependence claim. Regarding the former, “[t]his
court has previously held that the question of whether
evidence in a particular case is ‘new and material’ is
either a ‘factual determination’ under section
7292(d)(2)(A) or the application of law to ‘the facts of a
particular case’ under section 7292(d)(2)(B) and is, thus,
not within this court’s appellant jurisdiction.” Barnett v.
Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Regarding
the latter, the Veterans Court simply applied our decision
in Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998), to
the facts of this case, thus placing review of its decision
outside our jurisdiction under section 7292(d)(2)(B).
Accordingly, we dismiss Zanders’ appeal for lack of juris-
diction.
DISMISSED
COSTS
No costs.