                     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


                                        05-7179

                                OLIVER C. GEBHART,

                                                       Claimant-Appellant,

                                           v.

                R. JAMES NICHOLSON, Secretary of Veterans Affairs,


                                                      Respondent-Appellee



                             ________________________

                            DECIDED: November 14, 2005
                             ________________________


Before, MICHEL, Chief Judge, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM.

      Oliver C. Gebhart (“Gebhart”) appeals from the final judgment of the United

States Court of Appeals for Veterans Claims (“Veterans Court”) dismissing, for lack of

jurisdiction, Gebhart’s petition for extraordinary relief in the nature of mandamus.

Gebhart v. Nicholson, No. 05-1158 (Vet. App. June 24, 2005). Because Gebhart has

not shown that the Veterans Court erred in its conclusion, we affirm.
                                              I

       On May 6, 2005, the Veterans Court received correspondence from Gebhart.

Although unclear, the correspondence appears to pertain to Gebhart’s claim to the

Veterans Administration (“VA”) for cardiomyopathy, heart failure, and congestive heart

disease resulting from the use of certain medications.          Gebhart’s correspondence

requested that the Veterans Court order an “emergency en banc hearing” on the merits

of his claim and issue an emergency order requiring the VA to stop prescribing central

alpha-agonist medications with “absolute, inviolable, [and] strict adherence to accepted

protocols.”

       The Veterans Court construed the correspondence as a petition for extraordinary

relief in the nature of a writ of mandamus. The Veterans Court has authority to issue

extraordinary writs under the All Writs Act (AWA), 28 U.S.C. § 1651(a), only in aid of its

potential jurisdiction. See 28 U.S.C. § 1651(a) (2000); Gebhart, slip op. at 1. Finding

that it lacked potential jurisdiction over the issue of whether the VA should “cease and

desist” the use of central alpha-agonist medications, the Veterans Court dismissed

Gebhart’s petition for lack of jurisdiction. Id. slip op. at 2; see 38 C.F.R. § 20.101(b)

(2005). Gebhart timely appealed to this court.

                                             II

                                             A

       Pursuant to 38 U.S.C. § 7292(a), this court may review a determination of the

Veterans Court with respect to a rule of law or the validity or interpretation of any statute

or regulation relied upon by the Veterans Court in issuing a decision.            38 U.S.C.

§ 7292(a) (2000). In reviewing a Veterans Court decision, the court must decide “all




05-7179                                      2
relevant questions of law, including interpreting constitutional and statutory provisions”

and must set aside any regulation or interpretation thereof “other than a determination

as to a factual matter” relied upon by the Veterans Court that it finds to be: “(A) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary

to constitutional right, power, privilege, or immunity; (C) in excess of statutory

jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without

observance of procedure required by law.” Id. § 7292(d)(1).

       This court reviews an interpretation of a statute by the Veterans Court de novo.

Jones v. Brown, 41 F.3d 634, 637 (Fed. Cir. 1994). However, § 7292(d)(2) specifically

provides that, except to the extent that an appeal from a Veterans Court decision

presents a constitutional issue, this court “may not review (A) a challenge to a factual

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) (2000).

                                              B

       Gebhart argues that the Veterans Court erred in dismissing his writ of mandamus

for lack of jurisdiction. We disagree.

       The Veterans Court “lacks appellate jurisdiction over any issue that cannot be the

subject of a Board [of Veterans Appeals] decision.” Yi v. Principi, 15 Vet. App. 265, 267

(2001). In this case, the Veterans Court lacked potential jurisdiction over the issue of

whether the VA should cease its use of central alpha-agonist medication because that is

a medical determination beyond the jurisdiction of the Board. The Board’s jurisdiction

over issues concerning whether certain drugs should be prescribed is expressly limited

by 38 C.F.R. § 20.101(b). In particular, § 20.101(b) states:




05-7179                                       3
      The Board’s appellate jurisdiction extends to questions of eligibility for
      hospitalization, outpatient treatment, . . . and for other benefits
      administered by the Veterans Health Administration.              Medical
      determinations, such as determinations of the need for and
      appropriateness of specific types of medical care and treatment for an
      individual, are not adjudicative matters and are beyond the Board's
      jurisdiction. Typical examples of these issues are whether a particular
      drug should be prescribed, whether a specific type of physiotherapy
      should be ordered, and similar judgmental treatment decisions with which
      an attending physician may be faced.

38 C.F.R. § 20.101(b) (emphasis added).

      Gebhart fails to identify any error in the Veterans Court’s interpretation or

application of § 20.101(b) in dismissing his petition to stop the use of central alpha-

agonist medications. Gebhart does not address the decision of the Veterans Court or

reference his petition. Instead, Gebhart raises unrelated allegations that Washington

University’s (“University”) denial in transferring his course credits to fulfill the U.S.

Army’s continuing education requirements violated, inter alia, his “right to freedom in

education”, equal protection rights, and the Civil Rights Act of 1964. Based on these

allegations, Gebhart argues that the Veterans Court erred in dismissing his petition

because § 20.101(a)(11) grants the Veterans Court jurisdiction over issues pertaining to

educational assistance for members of the selected reserve.

      Gebhart appears to raise new issues to establish jurisdiction under a sub-section

of 38 C.F.R. § 20.101 unrelated to Gebhart’s petition and the basis of the Veterans

Court’s decision.   We do not consider issues raised for the first time on appeal,

particularly here, where the facts supporting the issues have not been found or

addressed by the Veterans Court. See Mueller v. U.S. Postal Serv., 76 F.3d 1198,

1201-02 (Fed. Cir. 1996) (“Because we are limited to reviewing decisions of the Board

based on the record before the deciding official, we decline to base our judgment on



05-7179                                    4
evidence that was not part of the record . . . .”).     In any event Gebhart offers no

evidence to support his newly raised allegations.

         Because Gebhart has failed to show that the Veterans Court erred in interpreting

38 C.F.R. § 20.101(b) in dismissing his petition to stop the use of certain medications,

he has failed to establish that the court erred in determining that it lacked jurisdiction

over his petition for a writ of mandamus.

                                            III

         We affirm the judgment of the Veterans Court. Each side shall bear its own

costs.




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