N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ LACY L. ANDERSON, Claimant

- Appellant,

v.

ERIC K. SHINSEKI, S ecretary of Veterans Affairs, Respondent

- Appellee.

______________________

2013

- 7111

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 10

- 4323, Judge Robert N. Davis.

______________________

Decided: March 21, 2014

______________________

D EANNE L. B ONNER , Bonner Di Salvo, PLLC, of D etroit, Michigan, argued for claimant

- appellant

.

E LIZABETH A NNE S PECK , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, argued fo r respon dent

- appellee. On the brief were S TUART F. D ELERY , Assistant Attorney General, B RYANT G. S NEE , Acting Director, M ARTIN F. H OCKEY , J R ., Assistant Director , and J AMES S WEET , Trial Attorney. Of counsel on the brief wasANDERSON v. SHINSEKI 2

M ICHAEL J. T IMINSKI , Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Was hington, DC. Of counsel was M EGHAN D. A LPHONSO

.

______________________

Before L OURIE , O’M ALLEY , and C HEN , Circuit Judges.

P ER C URIAM

. Lacy Anderson appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the denial of his request to reopen his disability claim. Anderson v. Shinseki

, No. 10

- 4323, 2012 WL 6727131 (Vet. App. Dec. 28, 2012) (unpublished).
Our jurisdiction over appeals from decisions of the Veterans Court is limited. We may review challenges to the validity or interpretation of a statute or regulation relied on by the Veterans Court and may interpret const itutional and statu tory provisions “to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). Except to the extent that an appeal presents a constitutional issue, however, we have no jurisdiction to review a cha llenge to a “factual determination” or “law o r regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
Pursuant to 38 U.S.C. § 5108, a previously

- denied claim shall be reopened if a claimant submits “new and material evidence.” We have held that such evidence is required b efore a claim can be reopened. Barnett v. Brown , 83 F.3d 1380, 1384 (Fed. Cir. 1996)

. Mr. Ande rson argues that the Veterans Court erred in affirming the determination of the Board of Veterans’ Appeals that his claim could not be reopened because he faile d to present adequate “new and material evidence.” However, “the question of whether evidence in a particular case is new and material is either a factual determination . . . or the application of law to the facts of a particular case . . . and is, thus, not within this court’s appellate jurisdiction .” Id.ANDERSON v. SHINSEKI 3

at 1383

- 84 ; see also Spencer v. Brown, 17 F.3d 368, 374 (Fed. Cir. 1994). Mr. Anderson’s attempt to frame his challenge as a question of law is unconvincing. Cf. Li vingston v. Derwinski , 959 F.2d 224, 225 (Fed. Cir. 1992) (“[T]he mere recitation of a basis for jurisdiction by party or a court[ ] is not controlling; we must look to the true nature of the action.”).
Accordingly, we dismiss Mr. Anderson’s appeal for lack of jurisdiction.

DISMISSED

C OSTS

No costs.