NOTE: This disposition is nonprecedential.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., Secretary of Veterans Affairs, 

Respondent-Appellee. 

Gary Day, of Willow Springs, Missouri, pro se. 

Hillary A. Stern, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, 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 Counsel, United States 

Department of Veterans Affairs, of Washington, DC. 

Appealed from: United States Court of Appeals for Veterans Claims 

Judge William A. Moorman 
NOTE: This disposition is nonprecedential.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., Secretary of Veterans Affairs, 

 Respondent-Appellee. 

Appeal from the United 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 ruling of the Board of Veterans’ Appeals 

(“Board”). The Board denied service connection for a bilateral leg disability and 

determined that a previous denial 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 jurisdiction to review Mr. Day’s appeal, we dismiss. 
Mr. Day notes that the CAVC incorrectly decided the issues presented and that 

he has additional arguments to support his position. However, 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 the application of law 

to the facts of Mr. Day’s case. The issues 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 over 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 decision.” 38 U.S.C. § 7292(a); Flores v. Nicholson, 476 F.3d 

1379, 1381 (Fed. Cir. 2007). Except to the extent that an appeal under this chapter 

presents a constitutional issue, this court may 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 conclusion 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. Day did not challenge the Board’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 2
2008-7097 3

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); Flores, 476 F.3d at 1381. 

The CAVC concluded that the VA did not fail in its duty to assist 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 medical examination. Day, 2008 WL 637625, at *2-4. The CAVC also 

concluded that the Board provided adequate reasons 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 validity 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. Therefore, he has not raised any issues within our jurisdiction. 

See 38 U.S.C. § 7292 (d)(2). Accordingly, we dismiss his appeal for lack of jurisdiction. 

This court similarly lacks jurisdiction to review the Veterans Court’s decision that 

the Board provided adequate 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 the 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.