Cullen v. Dept. Of Veterans Affairs , 436 F. App'x 999 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GERARD CULLEN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7005
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1193, Judge Lawrence B.
Hagel.
__________________________
Decided: August 19, 2011
__________________________
ZACHARY M. STOLZ, Chisholm, Chisholm & Kilpatrick,
of Providence, Rhode Island, argued for claimant-
appellant.
DOMENIQUE KIRCHNER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
CULLEN v. DVA 2
respondent-appellee. On the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, MARTIN F. HOCKEY, JR., Assistant Director, and JACOB
A. SCHUNK, Trial Attorney. Of counsel on the brief were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
and TRACEY P. WARREN, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, PROST, and O’MALLEY, Circuit Judges.
PROST, Circuit Judge.
Gerard Cullen appeals a decision of the United States
Court of Appeals for Veterans Claims (“Veterans Court”),
which vacated and remanded a decision of the Board of
Veterans’ Appeals (“Board”) denying Mr. Cullen’s request
for an increased disability rating for his service-connected
degenerative joint disease of the thoracic spine. Cullen v.
Shinseki, 27 Vet. App. 74 (2010). Because the decision of
the Veterans Court was not a final judgment, we dismiss
the appeal for lack of jurisdiction.
BACKGROUND
Mr. Cullen served on active duty in the United States
Army from June 1966 to September 1968, including
service in the Vietnam War. Subsequent to his service,
Mr. Mr. Cullen received service connection with a 10%
disability rating for two conditions: (1) residuals of a right
shoulder shrapnel wound; and (2) degenerative joint
disease of the thoracic spine. In March 2003, Mr. Cullen
sought increased disability ratings for his service-
connected disabilities. 1
1 Mr. Cullen appeals only the Veterans Court’s le-
gal interpretation of the regulations associated with his
3 CULLEN v. DVA
On April 18, 2005, the Department of Veterans Af-
fairs Regional Office (“RO”) issued a rating decision
increasing Mr. Cullen’s evaluation for his degenerative
joint disease from 10% to 20%, effective March 12, 2003.
Mr. Cullen filed a notice of disagreement with the April
2005 rating decision on May 24, 2005, requesting that the
RO reconsider increasing the rating beyond 20%.
On October 21, 2005, the RO issued a Statement of
the Case concluding that an increased rating for Mr.
Cullen’s degenerative joint disease was “not warranted”
because Mr. Cullen’s symptoms more nearly approxi-
mated the criteria required for a 20% evaluation rating.
The Board sustained the RO’s rating determination,
which Mr. Cullen appealed to the Veterans Court.
Mr. Cullen made two arguments in his appeal to the
Veterans Court: (1) he is entitled to multiple evaluation
ratings for the different symptoms of his single spinal
disability under 38 C.F.R. § 4.71a; and (2) the Board erred
in concluding that his spinal disability did not meet one of
the criteria for a 40% rating since pain affected his range
of movement. The Veterans Court vacated and re-
manded. In doing so, the Veterans Court rejected Mr.
Cullen’s argument that he was entitled to two evaluation
ratings, holding that the language of 38 C.F.R. § 4.71a
“read as a whole, makes clear that the regulation prohib-
its multiple disability ratings for a single spinal disability,
except in certain circumstances.” Cullen, 24 Vet. App. at
79. As to which evaluation rating was appropriate, the
Veterans Court found the Board’s reasons or bases for
denying Mr. Cullen’s claim inadequate. Specifically, the
Veterans Court found the Board’s discussion of the effects
degenerative joint disease. Thus, we do not discuss Mr.
Cullen’s shrapnel wound residuals.
CULLEN v. DVA 4
of pain, weakness, or fatigue “conclusory and without
supporting rationale.” Id. at 85. As a result, the Veter-
ans Court concluded that “vacatur and remand is neces-
sary.” Id. As part of the remand decision, the Veterans
Court explained that the Board would be “required to
readjudicate Mr. Cullen’s claim and provide a new state-
ment of reasons or bases for its decision, which will neces-
sarily include a discussion of whether a 40% disability
rating is warranted.” Id. at 86. Mr. Cullen appeals the
Veterans Court’s interpretation of 38 C.F.R. § 4.71a.
DISCUSSION
The jurisdiction of this court to hear appeals from the
Veterans Court is limited by statute. Under 38 U.S.C.
§ 7292(a), this court may review “the validity of a decision
of the [Veterans Court] on a rule of law or of any statute
or regulation . . . or any interpretation thereof (other than
a determination as to a factual matter) that was relied on
by the [Veterans Court] in making the decision.” Section
7292(c) vests this court with exclusive jurisdiction “to
review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof
brought under this section, and to interpret constitutional
and statutory provisions, to the extent presented and
necessary to a decision.” While the statutory provision
that gives this court jurisdiction to review a decision of
the Veterans Court does not expressly premise our review
on the finality of the Veterans Court’s decision, we have,
nonetheless, “‘generally declined to review non-final
orders of the Veterans Court.’” Williams v. Principi, 275
F.3d 1361, 1363 (Fed. Cir. 2002) (quoting Adams v. Prin-
cipi, 256 F.3d 1318, 1320 (Fed. Cir. 2001)). Moreover,
“[t]he mere fact that the Veterans Court as part of a
remand decision may have made an error of law that will
govern the remand proceeding—even one that, if re-
5 CULLEN v. DVA
versed, would lead to a decision in favor of the claimant—
does not render that decision final.” Myore v. Principi,
323 F.3d 1347, 1352 (Fed. Cir. 2003).
Our decision in Williams provides a limited exception
to the general rule that remand orders are not appealable.
We will depart from the strict rule of finality when a
veteran establishes: (1) the Veterans Court issued a clear
and final decision 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 unnecessary; (2) the
resolution of the legal issue adversely affects the party
seeking review; and (3) there is a substantial risk that the
decision would not survive a remand, i.e., that the re-
mand proceeding may moot the issue. Williams, 275 F.3d
at 1364.
In the present case, the parties agree that Mr. Cullen
satisfies the first two Williams factors. Mr. Cullen argues
that the third Williams factor is satisfied because “there
is no effective remedy for the Veterans Court’s erroneous
interpretation other than the present appeal.” Nothing in
the remand proceedings, however, will moot the issue Mr.
Cullen raises in the present appeal, a point which Mr.
Cullen conceded both in his opening brief and during oral
argument, oral arg. at 32:43–32:57, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
11-7005.mp3. On remand, Mr. Cullen may present evi-
dence that he is entitled to a 40% rating evaluation for his
service-connected degenerative joint disease of the tho-
racic spine. He may win or lose on the facts he presents
without regard to the Veterans Court’s interpretation of
§ 4.71a. After completion of the remand proceedings and
entry of a final judgment, Mr. Cullen is free to file a
second appeal and raise his argument regarding the
CULLEN v. DVA 6
Veterans Court’s interpretation of 38 C.F.R. § 4.71a. See
Myore, 323 F.3d at 1351-52; Winn, 110 F.3d at 57. While
Mr. Cullen’s legal argument may be the rule of the case in
the Veterans Court, his appeal to this court “may raise
any objections to the judgment that was entered [by the
Veterans Court], whether the errors arose from the origi-
nal [Veterans Court’s] decision or the second and final
decision.” Joyce v. Nicholson, 443 F.3d 845, 850 (Fed. Cir.
2006).
CONCLUSION
Because Mr. Cullen’s appeal does not present any is-
sues that would evade further review by this court and
because Mr. Cullen has not appealed from a final order or
judgment, we dismiss the appeal for lack of jurisdiction.
COSTS
Each party shall bear its own costs.
DISMISSED