Oliver C. Gebhart v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

OLIVER C. GEBHART,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2010-7067

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-1682, Chief Judge William
P. Greene, Jr.

ON MOTION

Before LINN, DYK, and PROST, Circuit Judges.
PER CURIAM

ORDER
.

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and dismiss Oliver C.
Gebhart's appeal in this case, or in the alternative, moves
to summarily affirm the judgment of the United States

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Court of Appeals for Veterans Claims. Gebhart moves to
consolidate this appeal with 2010-7050. The Secretary
opposes.

The United States Court of Appeals for Veterans
Claims dismissed Gebhart's appeal for lack of jurisdiction.
Specifically the court determined that Gebhart failed to
provide any evidence that he was appealing a final deci-
sion of the Board of Veterans' Appeals decision. Gebhart
filed an appeal with this court seeking 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 chal-
lenges 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 constitu-
tional question, this court lacks jurisdiction over chal-
lenges to factual determinations or laws or regulations as
applied to the particular case. 38 U.S.C. § 7292(d)(2).

In his informal brief, Gebhart appears to only make
various arguments regarding his medical condition.
However, because the Court of Appeals for Veterans
Claims dismissed Gebhart's appeal in that court for lack
of jurisdiction and did not address the merits of his claim,
these arguments are not before us. To the extent that
Gebhart seeks to challenge whether the Court of Appeals
for Veterans Claims correctly determined that it lacked
jurisdiction over his appeal, we summarily affirm. When
the Board has not rendered a final and appealable deci-
sion on a particular matter, the Court of Appeals for

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Veterans Claims has no jurisdiction to consider any
appeal.

Accordingly,
IT IS ORDERED THAT:

(1) The Secretary's motion to dismiss is denied.

(2) The Secretary's motion to summarily affirm is
granted.

(3) Gebhart's motion to consolidate is denied as moot.

(4) Each side shall bear its own costs.

(5) All pending motions are moot.

FOR THE COURT

OCT 2 6 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Oliver C. Gebhart
Delisa M. Sanchez, Esq.
$20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
OCT 2 6 2010

JAN HORBALY
CLERK