Texterv.Peake

United States Court of Appeals, Federal CircuitDec 2, 2008
328 Fed. Appx. 626 (Fed. Cir. 2008)

No. 2008-7128.

December 2, 2008.

Appeal from the United States Court of Appeals for Veterans Claims in 06-2635, Judge William A. Moorman.

Robert A. Texter, Desert Hot Springs, CA, pro se.

Before MICHEL, Chief Judge, RADER and PROST, Circuit Judges.


ON MOTION


PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss for lack of jurisdiction Robert A. Texter's appeal from a decision of the United States Court of Appeals for Veterans Claims (CAVC) dismissing his appeal of the Board of Veterans' Appeals (Board) decision that denied Texter entitlement to service connection for vertigo. Texter responds.

Texter served on active duty in the U.S. Navy from May to June 1977. In January 2004, he filed a service-connection claim for vertigo. The Department of Veterans Affairs' regional office denied Texter's claim on the ground that there was insufficient medical evidence establishing a nexus between his current vertigo and an event or condition during his service in the Navy. The Board affirmed that determination, and Texter appealed the Board's decision to the CAVC.

At the CAVC, Texter's argument was that he never received a copy of the Board's decision. When asked what actions he wanted the court to take, he asserted "produce all medical records" and "give me my benefits as promised." In its decision, the CAVC found that despite Texter's assertions to the contrary he had received a copy of the Board's decision, and that any duty-to-assist argument regarding his medical records was "presented without any support, rendering it impossible to address it adequately." Concluding that Texter waived any argument concerning the merits of his entitlement to service connection, the matter was deemed abandoned, and the court dismissed Texter's appeal. Texter seeks review of that decision.

The court's jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002) (en banc). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the validity of any statute or regulation, or an interpretation thereof relied on by the court in its decision. This court may also entertain challenges to the validity of a statute or regulation, and to interpret constitutional and statutory provisions as needed for resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitutional question, this court lacks jurisdiction over challenges to factual determinations or laws or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2).

Texter's brief and response repeat the arguments he raised before the CAVC regarding the incompleteness of his service medical records. He also generally contends that the Board and CAVC improperly weighed the evidence in concluding that he was not entitled to benefits. We agree with the Secretary that this court lacks jurisdiction over Texter's appeal. Texter's arguments regarding the Secretary's duty-to-assist in obtaining medical records were waived below, and even if the issue was not waived, Texter fails to raise any argument on that issue concerning constitutional, statutory or regulatory interpretation. Moreover, Texter's argument regarding the weighing of the evidence in his case merely challenge factual determinations, which we are without jurisdiction to review.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motion is granted.

(2) Each side shall bear its own costs.

(3) The revised official caption is reflected above.