Milton J. Kern, Jr. v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7035
MILTON J. KERN, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 08-1013, Judge
Robert N. Davis.
ON MOTION
Before MAYER, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir.
R. 27(f) and to dismiss Milton J. Kern, Jr.'s appeal from the United States Court of
Appeals for Veterans Claims' judgment in Kem v. Peake, 08-1013, for lack of
jurisdiction.
Kem sought review by the Court of Appeals for Veterans Claims of a Board of
Veterans' Appeals decision denying Kern's request to reopen his claim for service
connection for a psychiatric disorder. In its decision, the Board determined that
reopening the claim was not warranted because there was no new, material evidence
related to the claim. The Court of Appeals for Veterans Claims dismissed Kem's
appeal, finding that his notice of appeal was untimely filed. Kern appeals to this court.

-- 1 of 2 --

Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from
decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284
F.3d 1335, 1338 (Fed. Cir. 2002) (en banc). This court "may not 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." 38 U.S.C. § 7292(d)(2).
In his informal brief, Kern argues that the Court of Appeals for Veterans Claims
erred in reviewing the evidence and finding that his notice of appeal was untimely. Kern
also appears to argue that the Board erred in reviewing the evidence in denying his
claim for benefits. Because Kern fails to raise an issue within our jurisdiction, we must
dismiss this appeal.
Accordingly,
IT IS ORDERED THAT:
The Secretary's motions are granted. The appeal is dismissed.
Each side shall bear its own costs.
FOR THE COURT
MAR 2 7 2009
/s/ Jan Horbaly
Jan Horbaly
Clerk
Date
FILED
U.S. COURT OF APPFALS FOR
THE FEDERAL CIRCUIT
MAR 2 7 2009
JAN HORBALY
CLERK
cc: Milton J. Kern, Jr.
Steven M. Mager, Esq.
s20
ISSUED AS A MANDATE:
MAR 2 7 2009
2009-7035 - 2 -

-- 2 of 2 --