Wilson v. Shinseki , 397 F. App'x 625 ( 2010 )

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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CLYDE D. WILSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7077
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 08-3110, Chief Judge William P.
Greene, Jr.
___________________________
Decided: September 13, 2010
___________________________
CLYDE D. WILSON, of Calhoun Falls, South Carolina,
pro se.
COURTNEY S. MCNAMARA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
WILSON v. DVA 2
and BRIAN M. SIMKIN, Assistant Director. Of counsel on
the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and BRIAN D. GRIFFIN, Attorney, Office
of the General Counsel, United States Department of
Veterans Affairs, of Washington, DC.
__________________________
Before RADER, Chief Judge, LINN and DYK, Circuit
Judges.
PER CURIAM.
The United States Court of Appeals for Veterans
Claims (“Veterans Court”) affirmed the Board of Veterans’
Appeals (“Board”) decision that denied Mr. Clyde D.
Wilson service connection for a bilateral foot disability.
Wilson v. Shinseki, No. 08-3110, 2010 U.S. App. Vet.
Claims LEXIS 512 (Apr. 1, 2010). Because Mr. Wilson
argues only that the Veterans Court did not consider
evidence that was not in existence at the time of the
Board’s decision, this court dismisses for lack of jurisdic-
tion.
I.
Mr. Wilson served in the Army National Guard from
August 1973 through February 1997. He asserts that he
injured his feet in 1973. He submitted an application for
compensation for his disabilities in April 2002. The Board
denied Mr. Wilson’s claim of entitlement to service con-
nection for a bilateral foot disability on September 17,
2007. Mr. Wilson appealed to the Veterans Court, argu-
ing only that the Board had not considered new informa-
tion concerning his disabilities. The Veterans Court
affirmed the Board decision because Mr. Wilson did not
show that the Board failed to consider evidence that was
in existence at the time of its decision.
3 WILSON v. DVA
II.
This court’s jurisdiction to review the decisions of the
Veterans Court is limited by statute. See Summers v.
Gober, 225 F.3d 1293, 1295 (Fed. Cir. 2000). Under 38
U.S.C. § 7292(a), this court may review the validity of the
Veterans Court's decision on “a rule of law or of any
statute or regulation . . . or any interpretation thereof”
that the Veterans Court relied on in making its decision.
Under 38 U.S.C. § 7292(d)(2), however, this court has no
authority to review: (1) “a challenge to a factual determi-
nation” or (2) “a challenge to a law or regulation as ap-
plied to the facts of a particular case” unless the challenge
presents a constitutional issue.
III.
Mr. Wilson argues that the Veterans Court decision
involved the validity or interpretation of a statute or
regulation because it made its decision before his podia-
trist “turned [him] aloose [sic]” and without considering
his “doctor’s note” regarding his bilateral foot disability.
Presumably, Mr. Wilson is referring to a letter from his
podiatrist on the matter of his bilateral foot disability,
which post-dated both the Board and Veterans Court
decisions.
Title 38 of the U.S. code, section 7104(a), requires that
Board decisions “shall be based on the entire record in the
proceeding and upon consideration of all evidence and
material of record and applicable provisions of law and
regulation.” Thus, the Board must base its decision on
the record in existence at the time of its decision. More-
over, under 38 U.S.C. § 7252(b), the Veterans Court’s
jurisdiction precludes it from considering any evidence
that was not before the Board or the Secretary.
WILSON v. DVA 4
The Veterans Court applied section 7104(a) in holding
that the Board did not err in considering only evidence
that existed at the time of its decision. Because the
Veterans Court did not interpret section 7104(a), but
merely applied it to the facts of this case, this court does
not have jurisdiction to review this issue. See 38. U.S.C.
§ 7292(d)(2). To the extent that Mr. Wilson has new and
material evidence, he may have an opportunity to be
heard under 38 U.S.C. § 5108, which provides, “If new
and material evidence is presented or secured with re-
spect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition
of the claim.”
IV.
Because this court does not have jurisdiction to review
the issue on appeal, it dismisses Mr. Wilson’s appeal.
DISMISSED
COSTS
No costs.