Henry D. Combs v. Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HENRY D. COMBS,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2013-7008
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-0356, Judge Kenneth B. Kra-
mer.
______________________
Decided: May 8, 2013
______________________
HENRY D. COMBS , of Fenton, Missouri, pro se.
D AVID D’ALESSANDRIS , 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 S TUART F. D ELERY,
Principal Deputy Assistant Attorney General, J EANNE E.
D AVIDSON, Director, and SCOTT D. A USTIN, Assistant

-- 1 of 4 --

HENRY COMBS v. SHINSEKI 2
Director. Of counsel on the brief were MICHAEL J.
T IMINSKI, Deputy Assistant General Counsel, and
CHRISTINA L. G REGG, Attorney, United States Department
of Veterans Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, REYNA, and T ARANTO, Circuit
Judges.
P ER CURIAM .
Henry D. Combs seeks review of an order of the Court
of Appeals for Veterans Claims (“Veterans Court”) dis-
missing his appeal for lack of jurisdiction based on a
pending motion to reconsider before the Board of Veter-
ans’ Appeals (“Board”) that rendered the Board’s decision
non-final. Because we discern no statutory or constitu-
tional issues in this case, we conclude that we lack juris-
diction and must dismiss Combs’ appeal.
BACKGROUND
On September 2, 2010, the Board upheld a rating de-
cision of the Department of Veterans Affairs Regional
Office denying Combs’ service-connection claims for a
bilateral hearing loss disability and for tinnitus. Combs
timely filed a motion to reconsider the Board’s decision. It
appears from the record that the Board has not yet acted
on the motion to reconsider.
On January 25, 2012, Combs filed a notice of appeal
with the Veterans Court. The Veterans Court issued an
order to show cause why the appeal should not be dis-
missed for lack of jurisdiction. Although the record con-
tains neither the order nor the response, it appears from
the Veterans Court’s decision that Combs’ response did
not address the court’s concern that the pending motion to
reconsider rendered the Board’s decision non-final, de-
priving the Veterans Court of jurisdiction. The Veterans

-- 2 of 4 --

HENRY COMBS v. SHINSEKI 3
Court therefore dismissed the case, and this appeal
followed.
D ISCUSSION
We have jurisdiction to review the validity of a deci-
sion of the Veterans Court to decide “any challenge to the
validity of any statute or regulation or any interpretation
thereof brought under this section, and to interpret con-
stitutional and statutory provisions, to the extent pre-
sented and necessary to a decision.” 38 U.S.C. § 7292(c).
Absent a constitutional issue, this court may not review
challenges to factual determinations or challenges to the
application of a law or regulation to facts. 38 U.S.C. §
7292(d)(2).
A notice of appeal must be filed within 120 days of en-
try of final judgment. 38 U.S.C. § 7266(a). When a mo-
tion to reconsider is filed within that period, however, the
finality of the initial Board decision is abated. Linville v.
West, 165 F.3d 1382, 1386 (Fed. Cir. 1999) (citing Rosler
v. Derwinski, 1 Vet. App. 241, 249 (1991)). If the motion
to reconsider is denied, a new 120-day period begins for
filing the notice of appeal. See id.
In his informal brief, Combs focuses on problems he
sees with the Board’s underlying decision. We certainly
appreciate Combs’ desire to obtain a timely resolution to
the merits of his case. But the Board’s decision does not
fall within the ambit of our review.
Our jurisdiction does not extend to the issue raised by
Mr. Combs. See 38 U.S.C. § 7292(a),(c). In dismissing
this appeal, the Veterans Court relied solely on the pend-
ing, timely motion to reconsider before the Board. Combs
identifies no statutory or constitutional problems with
this decision, and we see none. We therefore have no
jurisdiction over this appeal. As the Veterans Court
noted, Combs may appeal the Board’s decision if neces-
sary once the Board has acted on his motion to reconsider.

-- 3 of 4 --

HENRY COMBS v. SHINSEKI 4
DISMISSED
COSTS
No Costs.

-- 4 of 4 --