                  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
                                         04-7177

                                FLORIDA A. MONDERO,

                                                        Claimant-Appellant,

                                             v.

                    JIM NICHOLSON, Secretary of Veterans Affairs,

                                                        Respondent-Appellee.

                            ___________________________

                            DECIDED: February 14, 2005
                            ___________________________


Before RADER, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM.

       The United States Court of Appeals for Veterans Claims dismissed Ms. Florida A.

Mondero’s appeal from a decision of the Deputy Vice Chairman of the Board of

Veterans’ Appeals (Board) denying reconsideration of a July 30, 1999 Board decision.

Mondero     v. Principi, No. 04-0087 (Vet. App. July 6, 2004).         The Board did not

recognize Ms. Mondero as the surviving spouse of a veteran. The Veterans Court

dismissed her appeal for lack of jurisdiction because Ms. Mondero did not file her Notice

of Appeal (NOA) in a timely manner. Because Ms. Mondero raises no genuine legal or

constitutional issue, this court lacks jurisdiction to review the Veterans Court’s decision.

Accordingly, this court dismisses Ms. Mondero’s appeal.
                                            I.

      VA Form 4597, in its paragraph (3), reads, in part, “A Notice of Appeal must be

filed with the [Veterans Court] within 120 days from the date of mailing of the notice of

the [Board’s] decision.” Ms. Mondero’s motion for reconsideration was filed on February

9, 2000, more than 120 days after the filing date. The Board denied Ms. Mondero’s

motion for reconsideration because she did not prove that the Board decision contained

obvious error.   Ms. Mondero filed a second motion for reconsideration, which was

denied on January 28, 2003.       The Board denied Ms. Mondero’s third motion for

reconsideration on December 4, 2003.

      Ms. Mondero filed a NOA with the Veterans Court on January 23, 2004 that was

dismissed for lack of jurisdiction on July 6, 2004. The Veterans Court concluded that it

may not “review denials of reconsideration by the Board Chairman in cases where it

does not already have jurisdiction by virtue of a timely appeal from a final Board

decision.” Mondero, slip op. at 1-2. In addition, the Veterans Court declined to toll the

120-day filling period under Rosler v. Derwinski, 1 Vet. App. 241, 245 (1991).

      On August 2, 2004, Ms. Mondero filed a motion for reconsideration of the July 6,

2004 decision. Ms. Mondero argued that her receipt of the July 1999 Board decision

was delayed until December 23, 1999, due to a failure of her counsel. The Veterans

Court denied this motion on August 9, 2004 and entered judgment on August 27, 2004.

                                            II.

      This court’s jurisdiction to review decisions of the Veterans Court is limited to

“any challenge to the validity of any statute or regulation or any interpretation thereof

. . . and to interpret constitutional and statutory provisions, to the extent presented and




04-7177                                     2
necessary to a decision.” 38 U.S.C. § 7292(c) (1994). “Except to the extent that an

appeal under this chapter presents a constitutional issue, the Court of Appeals 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.” Id. § 7292(d)(2).

       In other words, this court may decide “all 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.”

38 U.S.C. § 7292 (d)(1). In considering whether an appeal falls within its jurisdiction,

this Court looks to the substance of the issue presented rather than a party’s

characterization of the question. Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).

       Ms. Mondero did not challenge the validity or interpretation of any statute or

regulation. The Veterans Court decision that Ms. Mondero challenges did not elaborate

on the meaning of any statute, regulation, or rule of law. The Veterans Court applied

the established law concerning the procedures for the timely filing of appeals.

       Under section 7266(a), a NOA must be filed with the Veterans Court within 120

days after notice of a Board decision is mailed. However, the Veterans Court has also

held that the 120-day appeal period may be tolled and a NOA may be considered timely

if the appellant: (1) files a motion for Board reconsideration within 120 days after the

mailing date of the Board decision; and then (2) files a NOA within 120 days after the




04-7177                                       3
Board Chairman denied the reconsideration motion. See Rosler, 1 Vet. App. at 245.∗ In

Ms. Mondero’s case, the Veterans Court found that the NOA and the motions for Board

reconsideration were filed more than 120 days after the date of the July 1999 Board

decision. Mondero, slip op. at 1-2. Accordingly, the Veterans Court determined that

Ms. Mondero’s NOA was not timely filed and that neither of the conditions for tolling set

forth in Rosler had been met. Therefore, the Veterans Court dismissed for lack of

jurisdiction. Id.

       Although Ms. Mondero challenges the Board’s conclusion that she was not the

surviving spouse of the veteran, her arguments are beyond this Court’s jurisdiction

under 38 U.S.C. § 7292 because the Veterans Court decision was limited to matters of

jurisdiction.

       Even though Ms. Mondero asserts that the Veterans Court decided constitutional

issues, she does not explain how her constitutional rights were implicated by the

Veterans Court decision. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)

(holding that this Court does not have jurisdiction over assertions that are constitutional

“in name only”).

       Ms. Mondero’s assertion that the delay in filing her motion for reconsideration

was the fault of her attorney also raises no issues as to the validity or interpretation of

any statute or regulation. Additionally, this court finds all other arguments raised by Ms.

Mondero unpersuasive.




       ∗
             In Linville v. West, 165 F.3d 1382, 1385-86 (Fed. Cir. 1999), this court
adopted the Rosler rule. See Graves v. Principi, 294 F.3d 1350, 1352 (Fed. Cir. 2002).


04-7177                                     4
       In conclusion, because Ms. Mondero does not challenge the validity or

interpretation of any statute or regulation and raises no constitutional issues, this court

dismisses for want of jurisdiction. See 38 U.S.C. § 7292 (c), (d)(2).




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