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, Secretar y 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 extraor dinary 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 Cour t erred in its conclusion, we affirm

.I On May 6, 2005, the Veterans Cour t received correspondence from Gebhart. Although unclear, the correspondence appears to pertain to Gebhart’s claim to the Veterans Administration (“VA”) for cardio myopathy, heart failure, and congestive heart disease resulting from the use of ce rtain 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 r equiring the VA to stop prescribing central alpha-agonist medications with “ absolute, inviolable, [and] strict adherence to accepted protocols.” The Veterans Court construed the corre spondence 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 m edications, 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 cour t may review a dete rmination of the Veterans Court with respect to a rule of law or the validity or interpre tation of any statute or regulation relied upon by the Veterans C ourt in issuing a decis ion. 38 U.S.C. § 7292(a) (2000). In reviewing a Veterans Court decision, the c ourt must decide “all

05-7179 2relevant questions of law, including interpre ting constitutional and statutory provisions” and must set aside any regulation or interpre tation 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 discreti on, or otherwise not in accor dance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limit ations, 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 t he 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 chall enge 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 Veter ans Court erred in dismi ssing his writ of mandamus for lack of jurisdiction. We disagree. The Veterans Court “lacks appellate jurisd iction over any issue that cannot be the subject of a Board [of Vete rans Appeals] decision.” Yi v. Principi , 15 Vet. App. 265, 267 (2001). In this case, the Veterans Court la cked potential jurisdiction over the issue of whether the VA should cease its use of cent ral alpha-agonist medication because that is a medical determination beyond the jurisdiction of the Board. The Board’s jurisdiction over issues concerning whet her certain drugs should be pr escribed is expressly limited by 38 C.F.R. § 20.101(b). In particular, § 20.101(b) states:

05-7179 3The Board’s appellate jurisdiction ext ends to questions of eligibility for hospitalization, outpatient treat ment, . . . and for other benefits administered by the Veterans H ealth Administration. Medical determinations, such as determi nations 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 exampl es of these issues are whether a particular drug should be prescribed , whether a specific type of physiotherapy should be ordered, and sim ilar 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 t he Veterans Court’s interpretation or application of § 20.101(b) in dismissing his petition to stop the us e of central alphaagonist medications. Gebhart does not address the decision of the Veterans Court or reference his petition. Instead, Gebhart ra ises unrelated allegations that Washington University’s (“University”) denial in transfe rring his course credits to fulfill the U.S. Army’s continuing educati on 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 es tablish jurisdiction under a sub-section of 38 C.F.R. § 20.101 unrelat ed to Gebhart’s petition and the basis of the Veterans Court’s decision. We do not consider i ssues raised for the first time on appeal, particularly here, where the facts suppor ting 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 offici al, we decline to base our judgment on

05-7179 4evidence 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 t he Veterans Court erred in interpreting
38 C.F.R. § 20.101(b) in dismi ssing his petition to stop the us e of certain medications, he has failed to establish that the court err ed 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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