                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.


    United States Court of Appeals for the Federal Circuit


                                       05-7094


                                 BRUCE W. EBERT,

                                                             Claimant-Appellant,

                                           v.


                              R. JAMES NICHOLSON,
                             Secretary of Veterans Affairs

                                                             Respondent-Appellee.



                           _______________________

                          DECIDED: April 11, 2006
                          _______________________



Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.

PER CURIAM.

                                      DECISION

      Bruce W. Ebert appeals from the decision of the United States Court of Appeals

for Veterans Claims (“Veterans Court”) that affirmed the decision of the Board of

Veterans Appeals (“Board”) denying Mr. Ebert’s claim for vocational rehabilitation under
chapter 31 of title 38 of the United States Code. Ebert v. Principi, No. 02-01, slip op.

(Vet. App. Sept. 13, 2004) (“Veterans Court Decision”). We affirm.

                                       DISCUSSION

                                             I.

       Mr. Ebert is a licensed attorney with a Ph.D. in Clinical Psychology. Ebert v.

Principi, No. 02-10, slip op. at 2 (B.V.A. Oct. 12, 2001) (“Board Decision”). He suffers

from a 60% service-connected disability. Id., slip op. at 4. In September of 1998, Mr.

Ebert filed an application with Department of Veterans Affairs (“VA”) Regional Office

(“RO”) in Oakland, California, seeking vocational rehabilitation in the form of an L.L.M.

degree in health law from St. Louis University (“SLU”). Id., slip op. at 4. The RO denied

Mr. Ebert’s request because “the veteran had the education and work experience to find

suitable employment.” Id., slip op. at 5. In August of 1999, the VA’s Central Office

(“CO”) reviewed Mr. Ebert’s claim and found that Mr. Ebert had sufficient experience

and training to find suitable employment. Id., slip op. at 10. Thus, the CO also denied

his request for vocational rehabilitation.

       Mr. Ebert appealed to the Board. Based on Mr. Ebert’s testimony in June of

2001 and the evidence presented before the VA, the Board concluded, “There is no

evidence of record to show that, given his education and experience, an L.L.M. is

necessary to his successful practice of appellate health law now.” Id., slip op. at 13, 18.

Therefore, the Board affirmed the VA’s denial of Mr. Ebert’s claim. Id., slip op. at 21.

       Mr. Ebert appealed to the Veterans Court, which affirmed the Board’s decision

denying Mr. Ebert’s claim. Veterans Court Decision, slip op. at 2. The Veterans Court

concluded that the Board’s holding that Mr. Ebert was capable of finding suitable




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employment and therefore not entitled to benefits was not arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with the law. Id. The court also

rejected Mr. Ebert’s argument that the VA failed to assist him in making his claim, as

required by 38 U.S.C. § 5107, because the record reflected the VA went out of its way

to aid Mr. Ebert, even calling SLU to gather evidence. Id.

                                            II.

       On appeal Mr. Ebert argues that the Veterans Court violated his due process

rights by basing its decision on what he terms “secret evidence” in the form of the call

made by the VA to SLU. The Veterans Court also erred, Mr. Ebert argues, by failing to

consider in its decision the testimony he gave before the Board in June of 2001. On the

merits Mr. Ebert alleges that he was entitled to vocational benefits under 38 C.F.R.

§ 21.40. In support of this contention, he argues that the tribunals below erred by failing

to consider his interests in determining whether or not he was entitled to benefits as

required by 38 C.F.R. § 21.52(b).1 Mr. Ebert also argues that VA employees delayed

his case and ignored expert opinions.       Finally, he contends, as he did before the

Veterans Court, that the VA failed to assist him in his claim as required by 38 U.S.C.

§ 5107.

       The government counters that under 38 U.S.C. § 7292(d)(2) we lack jurisdiction

over Mr. Ebert’s case because Mr. Ebert’s arguments relate solely to factual issues or

the application of the law to the facts. In support of its jurisdictional argument, the

       1
                Specifically, Mr. Ebert urges that the VA should have found that he had a
“serious employment handicap” requiring vocational rehabilitation. 38 C.F.R. § 21.52(b)
defines “serious employment handicap” as “a significant impairment of a veteran’s
ability to prepare for, obtain or retain employment consistent with such veteran’s
abilities, aptitudes, and interests.” (emphasis added). Mr. Ebert argues that he had an
interest in health law, which the tribunals below failed to consider.


05-7094                                     3
government notes that Mr. Ebert does not voice a challenge to the interpretation of any

of the statutes he cites in his statement of jurisdiction. As to Mr. Ebert’s due process

argument, the government asserts that the Veterans Court’s reference to the VA’s call

to SLU did not deprive Mr. Ebert of notice or an opportunity to be heard.

                                             III.

       We have jurisdiction to review decisions of the Veterans Court to the extent that

they present “questions of law, including interpreting constitutional and statutory

provisions.” 38 U.S.C. § 7292(d)(1) (2000). Our jurisdiction is strictly limited by section

7292(d)(2), however.     It provides that we may not review “a challenge to a factual

determination, or . . . a challenge to a law or regulation as applied to the facts of a

particular case.”

       With the exception of his constitutional argument, all of Mr. Ebert’s arguments

represent challenges to factual determinations or to the application of the law to the

facts of his case. For example, Mr. Ebert argues that the VA failed to consider his

interests sufficiently under 38 C.F.R. § 21.52(b), rather than arguing that the VA

incorrectly interpreted section 21.52(b). With regard to Mr. Ebert’s challenges to the

Veterans Court’s failure to consider his June 2001 testimony before the Board and the

conduct of VA officials who allegedly delayed and mishandled his case, Mr. Ebert cites

no statutory or constitutional authority at all. Due to Mr. Ebert’s failure to raise any legal

challenges, we lack jurisdiction to review these allegations under 38 U.S.C.

§ 7292(d)(2).

       In addition, we do not agree with Mr. Ebert’s assertion that his appeal involves

the interpretation of 38 U.S.C. § 5107 and 38 U.S.C. § 1154 so as to provide us with




05-7094                                       4
jurisdiction. With regard to section 5107, Mr. Ebert does not contend that the Veterans

Court erred in interpreting section 5107. Rather, Mr. Ebert challenges the Veterans

Court’s finding that the VA adequately assisted him. See Veterans Court Decision, slip

op. at 2. Mr. Ebert’s only citation to section 1154 is in his cursory statement that it

provides jurisdiction.     Accordingly, we lack jurisdiction over most of Mr. Ebert’s

arguments because he is not raising a question of statutory interpretation or a

constitutional argument.

       The only argument raised by Mr. Ebert over which we do have jurisdiction under

section 7292(d) is his claim that his constitutional right to due process was violated. “An

essential principle of due process is that a deprivation of life, liberty, or property ‘be

preceded by notice and opportunity for hearing appropriate to the nature of the case.’”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). We do not see how the

Veterans Court’s passing reference to the allegedly “secret” phone call to SLU deprived

Mr. Ebert of notice or an opportunity to be heard. Further, the substance of the phone

call appears to have carried no weight in the Veterans Court Decision; the court merely

pointed out that it showed that the VA made ample effort to assist Mr. Ebert. Veterans

Court Decision, slip op. at 2.

       For the foregoing reasons, the final decision of the Veterans Court is affirmed.

       Each party shall bear its own costs.




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