NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record. 

United States Court of Appeals for the Federal Circuit 

05-7179 

OLIVER C. GEBHART, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

 

Respondent-Appellee 

________________________ 

DECIDED: November 14, 2005 

________________________ 

Before, MICHEL, Chief Judge, SCHALL, and GAJARSA, Circuit Judges. 

PER CURIAM. 

Oliver C. Gebhart (“Gebhart”) appeals from the final judgment of the United 

States Court of Appeals for Veterans Claims (“Veterans Court”) dismissing, for lack of 

jurisdiction, Gebhart’s petition for extraordinary relief in the nature of mandamus. 

Gebhart v. Nicholson, No. 05-1158 (Vet. App. June 24, 2005). Because Gebhart has 

not shown that the Veterans Court erred in its conclusion, we affirm. 
I 

On May 6, 2005, the Veterans Court received correspondence from Gebhart. 

Although unclear, the correspondence appears to pertain to Gebhart’s claim to the 

Veterans Administration (“VA”) for cardiomyopathy, heart failure, and congestive heart 

disease resulting from the use of certain medications. Gebhart’s correspondence 

requested that the Veterans Court order an “emergency en banc hearing” on the merits 

of his claim and issue an emergency order requiring the VA to stop prescribing central 

alpha-agonist medications with “absolute, inviolable, [and] strict adherence to accepted 

protocols.” 

The Veterans Court construed the correspondence as a petition for extraordinary 

relief in the nature of a writ of mandamus. The Veterans Court has authority to issue 

extraordinary writs under the All Writs Act (AWA), 28 U.S.C. § 1651(a), only in aid of its 

potential jurisdiction. See 28 U.S.C. § 1651(a) (2000); Gebhart, slip op. at 1. Finding 

that it lacked potential jurisdiction over the issue of whether the VA should “cease and 

desist” the use of central alpha-agonist medications, the Veterans Court dismissed 

Gebhart’s petition for lack of jurisdiction. Id. slip op. at 2; see 38 C.F.R. § 20.101(b) 

(2005). Gebhart timely appealed to this court. 

II 

A 

Pursuant to 38 U.S.C. § 7292(a), this court may review a determination of the 

Veterans Court with respect to a rule of law or the validity or interpretation of any statute 

or regulation relied upon by the Veterans Court in issuing a decision. 38 U.S.C. 

§ 7292(a) (2000). In reviewing a Veterans Court decision, the court must decide “all 

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relevant questions of law, including interpreting constitutional and statutory provisions” 

and must set aside any regulation or interpretation thereof “other than a determination 

as to a factual matter” relied upon by the Veterans Court that it finds to be: “(A) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary 

to constitutional right, power, privilege, or immunity; (C) in excess of statutory 

jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without 

observance of procedure required by law.” Id. § 7292(d)(1). 

This court reviews an interpretation of a statute by the Veterans Court de novo. 

Jones v. Brown, 41 F.3d 634, 637 (Fed. Cir. 1994). However, § 7292(d)(2) specifically 

provides that, except to the extent that an appeal from a Veterans Court decision 

presents a constitutional issue, 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) (2000). 

B 

Gebhart argues that the Veterans Court erred in dismissing his writ of mandamus 

for lack of jurisdiction. We disagree. 

The Veterans Court “lacks appellate jurisdiction over any issue that cannot be the 

subject of a Board [of Veterans Appeals] decision.” Yi v. Principi, 15 Vet. App. 265, 267 

(2001). In this case, the Veterans Court lacked potential jurisdiction over the issue of 

whether the VA should cease its use of central alpha-agonist medication because that is 

a medical determination beyond the jurisdiction of the Board. The Board’s jurisdiction 

over issues concerning whether certain drugs should be prescribed is expressly limited 

by 38 C.F.R. § 20.101(b). In particular, § 20.101(b) states: 

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The Board’s appellate jurisdiction extends to questions of eligibility for 

hospitalization, outpatient treatment, . . . and for other benefits 

administered by the Veterans Health Administration. Medical 

determinations, such as determinations of the need for and 

appropriateness of specific types of medical care and treatment for an 

individual, are not adjudicative matters and are beyond the Board's 

jurisdiction. Typical examples of these issues are whether a particular 

drug should be prescribed, whether a specific type of physiotherapy 

should be ordered, and similar judgmental treatment decisions with which 

an attending physician may be faced. 

38 C.F.R. § 20.101(b) (emphasis added). 

Gebhart fails to identify any error in the Veterans Court’s interpretation or 

application of § 20.101(b) in dismissing his petition to stop the use of central alphaagonist medications. Gebhart does not address the decision of the Veterans Court or 

reference his petition. Instead, Gebhart raises unrelated allegations that Washington 

University’s (“University”) denial in transferring his course credits to fulfill the U.S. 

Army’s continuing education requirements violated, inter alia, his “right to freedom in 

education”, equal protection rights, and the Civil Rights Act of 1964. Based on these 

allegations, Gebhart argues that the Veterans Court erred in dismissing his petition 

because § 20.101(a)(11) grants the Veterans Court jurisdiction over issues pertaining to 

educational assistance for members of the selected reserve. 

Gebhart appears to raise new issues to establish jurisdiction under a sub-section 

of 38 C.F.R. § 20.101 unrelated to Gebhart’s petition and the basis of the Veterans 

Court’s decision. We do not consider issues raised for the first time on appeal, 

particularly here, where the facts supporting the issues have not been found or 

addressed by the Veterans Court. See Mueller v. U.S. Postal Serv., 76 F.3d 1198, 

1201-02 (Fed. Cir. 1996) (“Because we are limited to reviewing decisions of the Board 

based on the record before the deciding official, we decline to base our judgment on 

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evidence that was not part of the record . . . .”). In any event Gebhart offers no 

evidence to support his newly raised allegations. 

Because Gebhart has failed to show that the Veterans Court erred in interpreting 

38 C.F.R. § 20.101(b) in dismissing his petition to stop the use of certain medications, 

he has failed to establish that the court erred in determining that it lacked jurisdiction 

over his petition for a writ of mandamus. 

III 

We affirm the judgment of the Veterans Court. Each side shall bear its own 

costs.

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