Curry v. McDonald , 639 F. App'x 632 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICKEY R. CURRY,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7109
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-3694, Judge William A. Moor-
man.
______________________
Decided: January 19, 2016
______________________
RICKEY R. CURRY, Brewton, AL, pro se.
ROBERT NORWAY, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D.
AUSTIN; BRIAN D. GRIFFIN, BRANDON A. JONAS, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 CURRY v. MCDONALD
______________________
Before PROST, Chief Judge, MOORE, and TARANTO, Cir-
cuit Judges.
PER CURIAM.
Rickey R. Curry appeals from the decision of the
Court of Appeals for the Veterans Claims (“Veterans
Court”). We dismiss for lack of jurisdiction.
BACKGROUND
Mr. Curry served on active duty in the U.S. Army
from December 1976 to March 1987. He then served in
the Army National Guard from May 1988 to May 2001,
including a period of active duty during the Persian Gulf
War. He received an anthrax vaccination in 1991 during
his active Gulf War service. In 2006, Mr. Curry was
diagnosed with and treated for prostate cancer. Between
2006 and 2014, Mr. Curry submitted a number of claims
for service connection including for prostate cancer,
tinnitus, frostbite, post-traumatic stress disorder
(“PTSD”), chronic migraines, and chronic fatigue syn-
drome. The regional offices denied all of his claims except
for his PTSD claim, which was awarded with a 30 percent
disability rating in April 2012.
Mr. Curry appealed to the Board, which affirmed the
30 percent disability rating but remanded his prostate
cancer and mental disorder claims with an order to re-
quest medical examinations. After several medical exam-
inations, the regional office denied Mr. Curry’s claims for
chronic depression including mood swings, fatigue syn-
drome, and prostate cancer, all claimed as due to an
undiagnosed illness and anthrax vaccination. Mr. Curry
appealed, and the Board affirmed the denials, but granted
service connection for a nonspecific headache disability.
Mr. Curry appealed to the Veterans Court, arguing
that the Veterans Affairs (“VA”) failed to obtain his medi-
CURRY v. MCDONALD 3
cal records, failed its duty to assist, and failed to consider
the issue of total disability rating based upon individual
unemployability (“TDIU”). The Veterans Court affirmed
the Board’s determination that Mr. Curry was not enti-
tled to service connection for (i) chronic depression includ-
ing mood swings, (ii) chronic fatigue syndrome, and (iii)
prostate cancer based on the theory of undiagnosed illness.
However, as to Mr. Curry’s claim for prostate cancer due
to anthrax vaccination, the Veterans Court vacated and
remanded because it found the examination report in the
record to be inadequate for rating purposes. The Veter-
ans Court did not disturb the Board’s decision awarding
Mr. Curry entitlement to service connection for headaches
due to an undiagnosed illness. Mr. Curry appeals.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. We have jurisdiction to
review a decision of the Veterans Court “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
. . . that was relied on by the [Veterans Court] in making
the decision.” 38 U.S.C. § 7292(a) (2012). Except where
an appeal raises a constitutional issue, we lack jurisdic-
tion to review a “challenge to a factual determination” or
a “challenge to a law or regulation as applied to the facts
of a particular case.” Id. § 7292(d)(2). We ordinarily
review only final orders of the Veterans Court, and “[t]hus,
we generally do not review the Veterans Court’s remand
orders because they are not final decisions.” Ebel v.
Shinseki, 673 F.3d 1337, 1340 (Fed. Cir. 2012).
When a veteran’s case involves multiple claims and
the Veterans Court remands some of the claims but
reaches a final judgment on others, we can review the
claims that have been fully and finally adjudicated.
Elkins v. Gober, 229 F.3d 1369, 1374 (Fed. Cir. 2000). We
may review claims finally decided by the Veterans Court
4 CURRY v. MCDONALD
that are not intertwined with the remanded claim. See
Allen v. Principi, 237 F.3d 1368, 1374 (Fed. Cir. 2001).
Because Mr. Curry’s claims for chronic depression (includ-
ing mood swings), fatigue syndrome, and prostate cancer
related to an undiagnosed illness are not intertwined with
his remanded claim, we are not barred from reviewing the
Veterans Court’s decision on those claims on the grounds
that it is not a final decision. Mr. Curry’s argument
appears to be that the Board’s denial of his claims was
based on the Board’s misunderstanding of his medical
history. This does not raise a legal issue over which we
may exercise jurisdiction. Similarly, the Veterans Court’s
determination that Mr. Curry did not raise the issue of
TDIU is a factual determination, or an application of law
to fact, that we lack jurisdiction to review. Because Mr.
Curry only challenges fact findings or the application of
law to fact, we lack jurisdiction over the appeal with
respect to the finally adjudicated claims.
As to Mr. Curry’s appeal of his service connection
claim for prostate cancer due to anthrax vaccination, the
Board remanded this claim. Thus, there is no final judg-
ment on this claim for our review. In Williams v. Principi,
275 F.3d 1361 (Fed. Cir. 2002), we held that there is a
limited exception to the rule that remands are not ap-
pealable when the following three conditions are met:
(1) [T]here must have been a clear and final deci-
sion of a legal issue that (a) is separate from the
remand proceedings, (b) will directly govern the
remand proceedings or, (c) if reversed by this
court, would render the remand proceedings un-
necessary;
(2) the resolution of the legal issues must adverse-
ly affect the party seeking review; and,
(3) there must be a substantial risk that the deci-
sion would not survive a remand, i.e., that the
remand proceeding may moot the issue.
CURRY v. MCDONALD 5
275 F.3d at 1364 (citations omitted).
Mr. Curry’s claim for entitlement to service connec-
tion for prostate cancer due to anthrax vaccination does
not fall under the exception articulated in Williams, and
thus we have no jurisdiction over it. Mr. Curry disputes
the Board’s factual findings with regard to his prostate
cancer. He does not, as Williams requires, dispute a clear
and final legal issue. We therefore dismiss Mr. Curry’s
appeal over the Veterans Court’s remand order because it
is not final for the purposes of invoking our jurisdiction.
Our dismissal of Mr. Curry’s appeal does not interfere
with the further development of his service connection
claim for prostate cancer as related to his anthrax vac-
cination. As the Veterans Court noted, Mr. Curry now
has the opportunity to submit additional evidence and
argument on that claim.
CONCLUSION
For the foregoing reasons, the appeal is dismissed for
lack of jurisdiction. We do not disturb the Board’s deci-
sion awarding Mr. Curry entitlement to service connec-
tion for headaches due to an undiagnosed illness.
COSTS
No costs.