NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
ALICE B. WISE,
Claimant-Appellan,t,
V.
ERIC K. SI'IINSEKI, SECRETARY OF VETERANS
AFFAIRS, _
Responden.t-Appellee.
2011-7163 `
Appeal from the United States Court of Appeals for
Veterans C1aims in case r1o. 09-1786, Judge Rona1d M.
Ho1daWay.
Before NEWMAN, L1NN, and REYNA, Circuic Judges.
LINN, Circuit Judge.
0 R D E R
The Secretary of Veterans Affai1's moves to waive the
requirements of Fed. Cir. R. 27(f) and to dismiss A1ice B.
Wise’s appeal from the United StateS Cou1't of Appea1s for
Vete1'ans C1aims’ judgment in Wise u. Shin,seki, 09-1'786,
for lack of jurisdiction Wise opposes. The Secretary
replies

WISE V. DVA 2
In 1975, Mrs. Wise sought dependency and indemnity
compensation (DIC) benefits following her husband’s
death in a motorcycle accident during his military service
in Japan. In April 1976, the Department of Veterans
Affairs denied Mrs. Wise’s claim, concluding that the
veteran’s death was a result of his willful misconduct and
was not incurred in the line of duty. Specifically, Veter-
ans Af`fairs found that the veteran was driving under the
influence of alcohol and at an unsafe speed and that this
was "deliberate wrong-doing with wanton and reckless
disregard of its probable consequences." Mrs. Wise did
not appeal the decision thereby rendering it final
In 2001, Mrs. Wise attempted to reopen her claim, as-
serting that she had new and material evidence, pursuant
to 38 U.S.C. § 5108. Mrs. Wise submitted a letter from
the veteran’s commanding officer, stating that the veteran
"apparently skidded upon wet pavement and lost control
of his bike that morning." Mrs. Wise also testified that
she did not believe her husband was intoxicated at the
time of the accident She further testified that her hus-
band would not have been drinking heavily because they
recently had their first child, and also that he was a
careful driver and only a social drinker.
In April 2009, the Board of Veterans’ Appeals found
that Wise had not provided new and material evidence to
reopen her claim. In its decision, the Board noted that
the Department’s regulation defining what constitutes
new and material evidence had been amended during the
pendency of her appeal. Nevertheless, the Board ex-
plained that it would apply the former and more favorable
version of the regulation, which stated in relevant part:
‘NeW and material’ evidence means evidence
not previously submitted to agency decision
makers which bears directly and substan-
tially upon the specific matter under consid-
eration, which is neither cumulative nor

3 WISE V. DVA
redundant and which, by itself or in connec-
tion with the evidence previously assembled,
is so significant that it must be considered in
order to fairly decide the merits of the case.
38 C.F.R. § 3.156 (2001)
The Board determined that the letter from her hus-
band’s commanding officer was previously considered by
the Department and was, therefore, not new evidence.
The Board also determined that Mrs. Wise was not com-
petent to testify about what occurred during the accident
because she had no personal knowledge of how much
alcohol her husband consumed, his state of mind, the
weather conditions, or the speed he was driving on the
night of the accident. -
Mrs. Wise appealed the Board’s decision to the United
States Court of Appeals for Veterans Claims, asserting,
inter alia, that the Board failed to provide adequate
reasons in determining that her testimony was not com-
petent. The Court of Appeals for Veterans Claims af-
firmed the Board’s decision In rejecting Mrs. Wise’s
contentions that her testimony regarding her husband’s
customary practice of not drinking and driving does
constitute “material" evidence, the Court stated in rele-
vant part:
However, as the Secretary notes, the appel-
lant’s argument is misplaced. In order to re-
open a claim, the evidence must bear directly
and substantially upon the ‘specific matter’
under consideration and must be ‘so signifi-
cant it must be considered in order to fairly
decide the merits of the claim.’ S'ee 38 C.F.R.
§ 3.156 (2001). In the April 1976 decision,
the RO denied the claim based on a finding
that the veteran had been drinking and driv-
ing too fast and thus his death was ‘deliber-

WISE V. DVA 4
ate wrongdoing with wanton and reckless
disregard of its probable consequences.’ R. at
'789. The evidence necessary for reopening
must therefore relate to the veteran’s mental
state and driving manner at the time of the
accident, not his normal practice. There is
no evidence and the appellant does not con-
tend that she was present at the time of the
accident. Thus, the Board properly deter-
mined that her statements were not mate-
rial. The Board also provided adequate
reasons or bases for its decision.
Our review of Veterans Court decisions is limited by
statute. See Yotes v. West, 213 F.3d 1372, 1373-74 (Fed.
Cir. 2000). By statute, our jurisdiction over appeals from
the Veterans Court is limited to those appeals that chal-
lenge the validity of a decision of the Veterans Court with
respect to a rule of law or the validity of any statute or
regulation, any interpretation thereof, or that raise any
constitutional controversies. See 38 U.S.C. § 7292. We do
not have jurisdiction to hear appeals challenging deter-
minations or the application of law to the facts of a par-
ticular case, unless there is a constitutional issue present.
See 38 U.S.C. § 7292(d)(2).
The parties dispute whether the Veterans Court
adopted a legal rule that would give this court jurisdiction
over this appeal. Mrs. Wise contends in her brief and her
opposition that the Veterans Court adopted an interpreta-
tion of § 3.156 that would categorically exclude evidence
of customary practice from being "material" evidence,
The Secretary responds that the Veterans Court did not
adopt a categorical rule. Rather, the Secretary contends
the Veterans Court merely addressed the challenge to the
Board’s statement of reasons or bases of its factual find-
ings, including whether Mrs. Wise’s testimony was not
competent to the specific issue before the Board, i.e.,

5 WISE V. DVA
whether the veteran was under the influence of alcohol
and was driving at an excessive speed at the time of the
accident.
We agree with the Secretary that the Veterans Court
in this case did not adopt a categorical rule that evidence
of customary practices could never constitute “material”
evidence. As the Secretary points out, the 1976 RO
decision made specific findings that the cause of death
was due to Mr. Wise being under the influence of alcohol
and drove his motorcycle at an excessive speed coming to
and through a 30-40 degree curve when he lost control of
the motorcycle Because that was the evidence of record,
the Court explained that in this case any "new and mate-
rial" evidence “must therefore relate to the veteran’s
mental state and driving manner at the time of the acci-
dent, not his normal practice." The Veterans Court
further explained that "[t]here is no evidence and the
appellant does not contend that she was present at the
time of the accident. Thus, the Board properly deter-
mined that her statements were not material.” In doing
so, the court was merely stating the customary evidence
presented here could not constitute material evidence
because of the specifics of the Board’s prior findings.
Here, as in Spencer v. Brown, 17 F.3d 368, 374 (Fed.
Cir. 1994), “we cannot disturb the [Veterans Court’s]
holding that there was new and material evidence pre-
sented after the Board’s 1987 decision . . . as that would
require us to review the application of law to the facts of
this case, concerning which we have no jurisdiction." We
therefore cannot reverse the Veterans Court’s conclusion
in this case that the Board was correct in not reconsider-
ing the claim.
Nor does this court have jurisdiction to review the
Board’s conclusion that Mrs. Wise was not competent to
testify about whether her husband was in fact under the
influence of alcohol while driving on the night of his death

WISE V. DVA 6
because she was not there This court has held in analo-
gous cases that "whether lay evidence is competent and
sufficient in a particular case is a fact issue[.]" Janclreau
v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
Accordingly,
lT IS ORDERED THATZ
(1) The Secretary’s motions are granted. The appeal
is dismisSed.
(2) Each side shall bear its own costs. 1
FoR THE CoURT
JAN 1 3 2512 131 Jan Horbaly
Date J an Horbaly
Clerk 7
cc: Sandra W. Wischow, Esq. `
Domenique Kirchner, Esq.
s2O
Issued As A Mandate: JAN 1 3 2012
FlLED
U.S. COUHT 0F APPEALS FOR
THE FEDERAL ClRCUlT
JAN 13ZU1Z
JAN HORBAlY
ClERK

