West v. Shinseki , 389 F. App'x 997 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
KENDRIA Y. WEST,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7020
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1868, Judge Bruce E.
Kasold.
__________________________
Decided: August 10, 2010
__________________________
KENDRIA Y. WEST, of Antioch, Tennessee, pro se.
JAMES P. CONNOR, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and KIRK T.
WEST v. DVA 2
MANHARDT, Assistant Director. Of counsel on the brief
were DAVID J. BARRANS, Deputy Assistant General Coun-
sel, and DANA RAFFAELLI, Attorney, Office of the General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, NEWMAN and PROST, Circuit
Judges.
PER CURIAM.
Appellant Kendria Y. West appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”), affirming the Board of Veterans’
Appeals’ (“Board’s”) denial of her claim for entitlement to
service connection for hypercholesterolemia and hypothy-
roidism, as well as increased disability ratings for service-
connected chronic pelvic inflammatory disease with
fibroids and supraventricular tachycardia. West v. Shin-
seki, No. 08-1868, 2009 WL 3401414 (Ct. Vet. App. Oct.
23, 2009). We dismiss for lack of jurisdiction.
BACKGROUND
Ms. West served on active duty in the United States
Navy from March 1986 through November 1990. Upon
her separation from service, the Department of Veterans
Affairs Regional Office (“RO”) granted her entitlement to
service connection for two medical conditions, chronic
pelvic inflammatory disease and supraventricular tachy-
cardia. In August 2004, Ms. West sought an increase in
the disability rating for these two conditions and filed an
additional claim for entitlement to service connection for
two other medical conditions, namely hypercholes-
terolemia and hypothyroidism. In December 2004, the
RO denied her entitlement to service connection for the
3 WEST v. DVA
two additional medical conditions and an increased dis-
ability rating for pelvic inflammatory disease, but in-
creased her disability rating for supraventricular
tachycardia.
In January 2005, Ms. West filed a claim for entitle-
ment to a total disability rating based on individual
unemployability. In June 2005, the RO denied this claim.
Ms. West appealed to the Board. On March 28, 2008,
the Board upheld the RO’s determinations with respect to
Ms. West’s claim to entitlement to service connection for
hypercholesterolemia and hypothyroidism, as well as the
disability ratings for chronic pelvic inflammatory disease
with fibroids and supraventricular tachycardia. The
Board, however, remanded to the RO Ms. West’s claim for
entitlement to a total disability rating based on individual
unemployability. 1
1 Although Ms. West’s appeal does not seem to ad-
dress the issue, we clarify that the issue of her entitle-
ment to a total disability rating based on individual
unemployability is not before this court. Section 7252(a)
of 38 U.S.C. provides that the Veterans Court has juris-
diction to review “decisions of the Board.” A remand by
the Board is not a “decision” within the meaning of this
statute and thus, in an appeal of a Board determination
to the Veterans Court, the Veterans Court does not have
jurisdiction over issues that the Board remanded.
Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir.
2005); Ricafort v. Nicholson, 21 Vet. App. 198, 202 (Ct.
Vet. App. 2007). Here, because the Board remanded the
issue of Ms. West’s entitlement to a total disability rating
to the RO, the Veterans Court, in addressing Ms. West’s
appeal of the Board decision, did not have jurisdiction
over this issue and did not address it. Therefore, the
issue is not before this court.
WEST v. DVA 4
Ms. West appealed the Board’s decision to the Veter-
ans Court, which affirmed on October 23, 2009. The
Veterans Court entered judgment on November 17, 2009.
Ms. West timely appealed to this court.
DISCUSSION
“Our jurisdiction to review the decisions of the [Veter-
ans Court] is limited by statute.” Summers v. Gober, 225
F.3d 1293, 1295 (Fed. Cir. 2000). Section 7292(a) of 38
U.S.C. provides that 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, we may not re-
view: (1) “a challenge to a factual determination” or (2) “a
challenge to a law or regulation as applied to the facts of a
particular case” unless the challenge presents a constitu-
tional issue.
Ms. West argues that the Veterans Court ignored the
facts of her case and includes a detailed statement of her
medical issues in which she argues that the law cannot be
properly applied without a full and accurate understand-
ing of her medical condition. Ms. West properly concedes
that the Veterans Court’s decision did not involve consti-
tutional issues or the validity or interpretation of a stat-
ute or regulation, and thus she does not contest any such
issues. As such, Ms. West only disputes factual matters
and objects to the Veterans Court’s application of the law
to the facts of her case. Because we may not review
factual determinations or the application of the law to the
facts, Ms. West’s challenge to the Veterans Court’s deci-
sion is limited to matters over which we do not have
jurisdiction.
5 WEST v. DVA
In conclusion, “[i]n the absence of a challenge to the
validity of a statute or a regulation, or the interpretation
of a constitutional or statutory provision or a regulation,
we have no authority to consider the appeal.” Livingston
v. Derwinski, 959 F.2d 224, 226 (Fed. Cir. 1992). Accord-
ingly, we dismiss Ms. West’s appeal for lack of jurisdic-
tion.
COSTS
Each party shall bear its own costs.
DISMISSED