NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JERRY A. GRAY, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7127 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 08-1878, Judge Alan G. 

Lance, Sr. 

___________________________ 

Decided: March 10, 2011 

___________________________ 

JERRY A. GRAY, of Chesapeake, Virginia, pro se. 

KENNETH S. KESSLER, Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent-appellee. 

With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and HAROLD 

D. LESTER, JR., Assistant Director. Of counsel on the brief 
GRAY v. DVA 2

was DAVID J. BARRANS, Deputy Assistant General Counsel, United States Department of Veterans Affairs, of 

Washington, DC. 

__________________________ 

Before RADER, Chief Judge, MOORE, and O’MALLEY, 

Circuit Judges. 

PER CURIAM. 

Mr. Jerry A. Gray appeals the decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”), affirming the Board of Veterans’ Appeals’ 

(“Board’s”) denial of his claims for: (1) service connection 

for osteoarthritis of the low back; (2) service connection 

for osteoarthritis of the knees; (3) a disability rating in 

excess of 10% for prostatitis and epididymitis prior to 

March 15, 2007; (4) a disability rating in excess of 40% for 

prostatitis and epididymitis from March 15, 2007; (5) a 

disability rating in excess of 10% for tinea versicolor, 

tinea pedis, and tinea cruris prior to April 12, 2004; (6) a 

disability rating in excess of 30% for tinea versicolor, 

tinea pedis, and tinea cruris from April 12, 2004; (7) a 

disability rating in excess of 20% for the residuals of a 

shell fragment wound (“SFW”) to the left shoulder and 

upper back; (8) a compensable rating for a SFW scar of 

the upper left arm; (9) a compensable rating for a right 

inguinal hernia; (10) entitlement to an automobile and 

adaptive equipment or for adaptive equipment only; (11) 

special home adaptation; (12) specially adapted housing; 

and (13) special monthly compensation (“SMC”) based on 

the need for aid and attendance. Gray v. Shinseki, No. 

08-1878, 2010 U.S. App. Vet. Claims LEXIS 1188 at *1-2 

(Ct. Vet. App. Jun. 30, 2010). Because Mr. Gray disputes 

only factual matters, or, at most, the Veterans Court's 

application of law to the facts of his case, we dismiss for 

lack of jurisdiction. 
3 GRAY v. DVA

BACKGROUND

Mr. Gray served in the United States Marine Corps 

from November 8, 1966 to September 26, 1969. During 

the course of his service, he participated admirably in 

numerous expeditions in Vietnam, including one in the 

Quang Nam Province where he sustained a missile wound 

to his left arm. A decorated war hero, Mr. Gray has 

received numerous recognitions for his honorable service, 

including a Purple Heart. 

In January 1970, Mr. Gray was granted service connection for tinea versicolor, tinea cruris, chronic prostatitis, and epididymitis, all rated as 10% disabling. He was 

also granted service connection for a right inguinal hernia 

and multiple SFWs of the left upper arm, back, and left 

shoulder, but these conditions were rated noncompensable. His combined disability rating was 20%. In 

October 1971, Mr. Gray was granted an increased disability rating of 20% for the residuals of the SFWs of the left 

shoulder and back, but the residual scar of the left upper 

arm SFW was rated separately as noncompensable. 

A September 1997 rating decision continued the disability ratings for tinea versicolor, tinea cruris, prostatitis, epididymitis, as well as those for the residuals of the 

left shoulder and back SFW. It denied, however, entitlement to SMC based on the need for aid and attendance or 

being housebound. In December 2001, a rating decision 

again continued these disability ratings and affirmed the 

noncompensable ratings for the residuals of the left upper 

arm SFW scar and right inguinal hernia. In May 2003, 

Mr. Gray was denied entitlement to an automobile, adaptive equipment, and SMC based on the need for aid and 

attendance or being housebound. 

Mr. Gray subsequently sought service connection for 

osteoarthritis of the knees and low back, and an increased 
GRAY v. DVA 4

disability rating for conditions previously deemed serviceconnected. In January 2005, the Department of Veterans 

Affairs (“VA”) Regional Office in Roanoke, Virginia (“RO”) 

increased the disability rating for Mr. Gray’s serviceconnected tinea versicolor, tinea pedis, and tinea cruris to 

30%, but denied entitlement to service connection for the 

osteoarthritis. Mr. Gray appealed this decision to the 

Board. In August 2005, the RO issued another ratings 

decision, denying entitlement to a special home adaptation, specially adapted housing, an automobile, adaptive 

equipment, and SMC based on the need for aid and attendance or being housebound. Mr. Gray appealed this 

decision to the Board too. 

In May 2007, a decision review officer (“DRO”) increased Mr. Gray’s service-connected prostatitis and 

epididymitis rating to 40% based on a March 15, 2007 VA 

examination showing increased symptomatology. The 

DRO also granted entitlement to SMC under 38 U.S.C. § 

1114(s)(1), which provides for SMC where a “veteran has 

a service-connected disability rated as total,” and “has 

additional service-connected disability or disabilities 

independently ratable at 60 percent or more.” 

On April 24, 2008, the Board issued a decision denying Mr. Gray’s claims arising from his appeals of the 

January and August 2005 RO decisions. Mr. Gray appealed the Board's decision to the Veterans Court, which 

affirmed on June 30, 2010. The Veterans Court entered 

judgment on July 23, 2010. Mr. Gray timely appealed to 

this court. 

DISCUSSION

Our jurisdiction to review the decisions of the Veterans Court is limited by statute. Forshey v. Principi, 284 

F.3d 1335, 1338 (Fed. Cir. 2002). 38 U.S.C. § 7292(a) 

provides that this court may review the validity of the 
5 GRAY v. DVA

Veterans Court's decision on “a rule of law or of any 

statute or regulation” or “any interpretation thereof” that 

the Veterans Court relied on in making its decision. 

Under 38 U.S.C. § 7292(d)(2), however, we may not 

review: (1) “a challenge to a factual determination” or (2) 

“a challenge to a law or regulation as applied to the facts 

of a particular case” unless the challenge presents a 

constitutional issue. 

In his informal brief, Mr. Gray concedes that the Veterans Court’s decision involved neither constitutional 

issues, nor the validity or interpretation of a statute or 

regulation.1 His central complaint, rather, consists of his 

 1 Notwithstanding this concession, Mr. Gray’s supplemental brief contains two complaints that sound in due 

process. Neither, however, presents a genuine constitutional issue sufficient to confer jurisdiction on this court. 

His first complaint is that he was not treated as other 

veterans similarly situated, “especially with [respect to] 

the earned benefits” that he claims he deserves. Second, 

Mr. Gray appears to argue that he lost his appeal, and 

was unfairly treated, because he lacked proper legal 

representation. As an initial matter, neither of these 

issues was raised before the Veterans Court, and we 

ordinarily do not consider arguments raised for the first 

time on appeal. Forshey, 284 F.3d at 1358. Even if we 

were to consider these complaints at this juncture, moreover, neither presents a true constitutional issue. With 

respect to the first complaint, Mr. Gray has provided no 

facts supporting his claim that he was treated worse than 

other veterans in his position. It is therefore impossible 

to determine whether the allegedly differential treatment 

raises any constitutional concerns. As to the second 

complaint, Mr. Gray does not argue that he was deprived 

of the opportunity to obtain counsel of his choosing, or 

that he should have been provided with appointed counsel. He merely claims that he was not “represented by a 

lawyer who would understand the” relevant law. The fact 

that Mr. Gray proceeded pro se, however, does not in itself 

raise any constitutional issues. 
GRAY v. DVA 6

bare assertion that the RO incorrectly evaluated the 

records documenting his disabilities. Specifically, Mr. 

Gray claims that the decisions denying service connection 

as to certain of his disabilities were “wrong.” In other 

words, Mr. Gray is arguing that the Board’s findings of 

fact regarding whether these disabilities are entitled to 

service connection were erroneous. He also appears to 

argue that the factual record before both the Board and 

the Veterans Court was somehow incomplete, though he 

fails to point to any specific facts that should have been in 

the record. As such, Mr. Gray disputes only factual 

matters, or, at most, the Veterans Court's application of 

law to the facts of his case. Because we may not review 

factual determinations or the application of law to facts, 

Mr. Gray's challenge to the Veterans Court's decision is 

limited to matters over which we do not have jurisdiction. 

Livingston v. Derwinski, 959 F.2d 224, 226 (Fed. Cir. 

1992) (“In the absence of a challenge to the validity of a 

statute or a regulation, or the interpretation of a constitutional or statutory provision or a regulation, we have no 

authority to consider the appeal."). 

While we recognize that Mr. Gray served his country 

honorably, and suffers from various ailments, it is not 

within our discretion to upset the factual determination 

as to which of his ailments are service-connected. Accordingly, we dismiss Mr. Gray's appeal for lack of jurisdiction. 

Each party shall bear its own costs. 

DISMISSED