NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-7097

GARY DAY, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Gary Day , of Willow Springs, Missouri, pro se. Hillary A. Stern , Trial Attorney, Commercial Litigatio n Branch, Civil Division, United States Department of Justic e, of Washington, DC, for respondent-appellee. With her on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Martin F. Hockey, Jr. , Assistant Director. Of counsel was David J. Barrans , Deputy Assistant General Counsel, Office of the General Couns el, United States Department of Veterans Affa irs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge William A. MoormanNOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-7097 GARY DAY,

Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secretar y of Veterans Affairs, Respondent-Appellee.

Appeal from the Unit ed States Court of Appeals for Veterans Claims in 06-0833, Judge William A. Moorman.

_________________________ DECIDED: December 4, 2008

_________________________ Before RADER, PLAGER and GAJARSA, Circuit Judges

. PER CURIAM. Gary A. Day seeks review of the United States Court of Appeals for Veterans Claims’ (“CAVC”) decision which affirmed the ru ling of the Board of Veterans’ Appeals (“Board”). The Board denied service connec tion for a bilateral leg disability and determined that a previous de nial of service connection for chondromalacia of the knees could not be reopened because new and material evidence had not been submitted. Day v. Peake , No. 06-0833, 2008 WL 637625, at *1 (Ct. Vet. App. Feb. 26, 2008). Because we are without jurisdicti on to review Mr. Day’s appeal, we dismiss

.Mr. Day notes that the CA VC incorrectly decided the issues presented and that he has additional argument s to support his position. Howe ver, Mr. Day fails to note with specificity any additional issues or arguments. Id. The government argues that this court should dismiss Mr. Day’s appeal for lack of jurisdiction under 38 U.S.C. § 7292(d)(2) because the issues addressed by the CAVC involved t he application of law to the facts of Mr. Day’s case. The issu es decided by the CAVC are factual issues therefore, we agree with the government that this court lacks jurisdiction to address them. 1
This court must first determine whether or not it has jurisdiction in an appeal. C.R. Bard, Inc. v. Schwartz , 716 F.2d 874, 877 (Fed. Cir. 1983). Under 38 U.S.C. § 7292, this court has limited jurisdiction ov er appeals of CAVC decisions. We have jurisdiction over appeals from the CAVC “with respect to the validity of a decision of [that] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by [that] Court in making the decisi on.” 38 U.S.C. § 7292(a); Flores v. Nicholson , 476 F.3d 1379, 1381 (Fed. Cir. 2007). Except to the ex tent that an appeal under this chapter presents a constitutional issue, this court ma y not “review (A) a challenge to a factual

1 The CAVC did not address any of Mr. Day’s arguments pertaining to the reopening of his claim for service connection for chondromalacia of the knees because Mr. Day did not challenge the Board’s conclusi on that new and material evidence had not been submitted. Day , 2008 WL 637625, at *1. A claimant must submit new and material evidence in order to succeed in reopening a case under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.156(a). Taylor v. Mansfield , 257 Fed. Appx. 303, 305 (Fed. Cir. 2007). Therefore, because Mr. Da y did not challenge the Boar d’s legal conclusion that new and material evidence was not submitted, no basis existed for the Veterans Court to address the reopening of that claim.

2008-7097 22008-7097 3 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); Flores , 476 F.3d at 1381. The CAVC concluded that the VA did not fa il in its duty to assi st Mr. Day with his bilateral leg disability claim by not obtaining certain Social Security Administration (hereinafter “SSA”) records or Service Medical Records (hereinafter “SMRs”), or by not providing a medica l examination. Day , 2008 WL 637625, at *2-4. The CAVC also concluded that the Bo ard provided adequate r easons or basis for its determination or decision despite Mr. Day’s argument that it had not. Id. at *4. On appeal, Mr. Day does not challenge the valid ity or interpretation of any statute or regulation relied on by the Veterans Court in its decision, nor does he raise any constitutional issue. At most, he challenges the Veterans Court’s application of law to the facts of his case. Theref ore, he has not raised any issu es within our jurisdiction. See 38 U.S.C. § 7292 (d)(2). Accordingly, we di smiss his appeal for lack of jurisdiction. This court similarly lacks jurisdiction to re view the Veterans Court’s decision that the Board provided adequat e reasons or basis for its determination. See Cook v. Principi , 353 F.3d 937, 940 (Fed. Cir. 2003) (finding no jurisdiction to review an argument “premised on the basis that the Veterans Court erred by not remanding [a] case over an alleged failure by the Board to satisfy t he requirements under 38 U.S.C. § 7104(d)(1).”). Therefore, we do not reach this issue. CONCLUSION Because we lack jurisdiction to review Mr. Day’s appeal, it is dismissed.

No costs.