NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MARVIN E. SANDERS, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7199 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 09-0378, Judge Lawrence B. 

Hagel. 

__________________________ 

Decided: February 10, 2012 

__________________________ 

MARVIN E. SANDERS, of Compton, California, pro se. 

KENT C. KIFFNER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC. With him on the brief were 

TONY WEST, Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and KIRK T. MANHARDT, Assistant 
SANDERS v. DVA 2

Director. Of counsel on the brief were MICHAEL J.

TIMINSKI, Deputy Assistant General Counsel and TRACEY 

P. WARREN, Attorney, United States Department of 

Veterans Affairs, of Washington, DC. 

__________________________ 

Before PROST, SCHALL, and REYNA, Circuit Judges. 

PER CURIAM. 

Marvin E. Sanders appeals the decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”) issued on June 21, 2011, affirming the decision of 

the Board of Veterans’ Appeals (“Board”) issued on January 8, 2009, which found that new and material evidence 

had not been submitted to reopen previously disallowed 

claims. Because Mr. Sanders neither challenges the 

validity or interpretation of any statute or regulation nor 

sufficiently raises a constitutional claim, we dismiss the 

appeal for lack of jurisdiction. 
3 SANDERS v. DVA

I. BACKGROUND

Mr. Sanders served on active duty from September 

1972 to September 1976 and from November 1977 to 

October 1981. In March 1970, prior to his active duty 

service, he was involved in a motor vehicle accident that 

resulted in injuries to his eye, head, lower back, and 

chest. Although a private physician determined that he 

was unsuitable for military service in May 1971, the 

military enlisted him. At his entrance service examination in August 1972, Mr. Sanders reported a history of 

swollen or painful joints, eye problems, head injury, 

cramps in legs, recurrent back pain, and sleeping problems. He did not report any of these problems in his 

separation examination in May 1981. 

Mr. Sanders filed a claim for entitlement to the Department of Veterans Affairs (“VA”) benefits in August 

1986. A VA regional office denied his claim. Mr. Sanders 

did not appeal that decision and it became final, but he 

sought to reopen the claim in January 2002 and filed an 

additional claim for bilateral knee disability. Again, a VA 

regional office denied his claims. He did not appeal and 

the decision became final. 

For a second time, in March 2006, Mr. Sanders sought 

to reopen his claim and filed additional claims for posttraumatic stress disorder and a right eye injury. This 

time, however, after a VA regional office denied his 

claims, he appealed the denial to the Board. In January 

2009, the Board granted Mr. Sanders’s request to reopen 

his claim for benefits due to headaches. The Board also 

determined that Mr. Sanders’s claim for benefits due to 

injury to his cervical spine could not be evaluated based 

on the record, and it thus remanded the issue to the 

regional VA office for examination. With respect to the 
SANDERS v. DVA 4

rest of the claims (related to post-traumatic stress disorder, low back disability, bilateral knee disability, scars of 

the right eye and forehead, and right eye injury), the 

Board declined the request to reopen on the ground that 

new and material evidence had not been submitted. 

Mr. Sanders appealed the Board’s decision to the Veterans Court. The Veterans Court vacated the Board’s 

denial of benefits with respect to post-traumatic stress 

disorder and remanded that matter for additional consideration. The Veterans Court affirmed the remaining 

portions of the Board’s decision but did not specifically 

address Mr. Sanders’s claim pertaining to spine injury, 

which the Board had already remanded to the VA regional office. This appeal ensued. 

II. DISCUSSION

This court may only review the Veterans Court’s decision 

with respect to the validity of a decision of 

the 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 the 

[Veterans] Court in making the decision. 

38 U.S.C. § 7292(a). 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 appeal presents a constitutional issue. Id. § 

7292(d)(2). 

Here, Mr. Sanders’s appeal does not fall within the 

scope of our jurisdiction. Mr. Sanders’s appeal mainly 
5 SANDERS v. DVA

pertains to his claim for benefits in relation to a spine 

injury. That claim, however, has not been fully adjudicated by the Board and the Veterans Court. In fact, the 

Board has already remanded Mr. Sanders’s spine injury 

claim to the VA regional office for further examination. 

Therefore, Mr. Sanders’s claim based on injury to his 

spine is not properly before us.1 See Kirkpatrick v. 

Nicholson, 417 F.3d 1361, 1365-66 (Fed. Cir. 2005) (holding that the Board’s order to remand a claim to a VA 

regional office that neither denied nor granted relief is not 

reviewable on appeal). 

Mr. Sanders also appears to appeal the decision of the 

Board (and the Veterans Court), with respect to denying 

his claims based on injury to his eye and knees. But Mr. 

Sanders does not state any basis for his challenge to those 

decisions. 

Finally, Mr. Sanders claims that he has been deprived 

of due process and discriminated against based on his 

race. As already stated, we have jurisdiction to consider 

constitutional arguments. See 38 U.S.C. § 7292(d)(2). 

But Mr. Sanders does not provide any facts to substantiate his arguments. Nor do we see any basis for his arguments in the record. In the absence of any evidentiary 

support, Mr. Sanders’s passing remarks amount to no 

more than a constitutional label for his otherwise factual 

disagreement with the decisions of the Veterans Court 

and the Board. That does not suffice to create jurisdic-

 1 In his reply brief, Mr. Sanders appears to suggest 

that we should consider certain developments (with 

respect to his spinal injury claim) that occurred while his 

appeal was pending before the Veterans Court. Any such 

new development is not reflected in the record before us, 

however, and any issues related to such development are 

not properly before us on appeal. 
SANDERS v. DVA 6

tion. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 

1999) (holding that a claim that is constitutional in name 

only does not create jurisdiction over an appeal from the 

Veterans Court); Livingston v. Derwinski, 959 F.2d 224, 

225 (Fed. Cir. 1992) (“[T]he mere recitation of a basis for 

jurisdiction by either party or a court[] is not controlling; 

we must look to the true nature of the action.”). 

Therefore, we dismiss Mr. Sanders’s appeal for lack of 

jurisdiction. 

COSTS

Each party shall bear its own costs. 

DISMISSED