Barber v. Peake ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7105
GLENN BARBER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Glenn Barber, of Houston, Texas, pro se.
Sean B. McNamara, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the
brief were Michael J. Timinski, Deputy Assistant General Counsel, and Jamie L.
Mueller, Staff Attorney, Office of the General Counsel, United States Department of
Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7105
GLENN BARBER,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans
Claims in 06-0174, Judge Robert N. Davis.
____________________________
DECIDED: December 3, 2008
____________________________
Before LOURIE, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Glenn Barber appeals from the decision of the United States Court of Appeals for
Veterans Claims (“the Veterans Court”) affirming in part, reversing in part, and
remanding the decision of the Board of Veterans’ Appeals (“the Board”) denying
entitlement to an initial disability rating in excess of 20% for a herniated intervertebral
disc. Barber v. Peake, No. 06-0174, 2008 U.S. App. Vet. Claims LEXIS 212 (U.S. App.
Vet. Cl. Feb. 13, 2008). We dismiss Barber’s claims for lack of jurisdiction because the
decision of the Veterans Court was not final.
BACKGROUND
Barber was in active military service from July 1972 to December 1975 and from
June 1981 to February 1995. He was granted a 20% noncompensable disability rating,
effective June 1995, for a herniated intervertebral disc that he developed during his
service. In December 1999, the Board denied Barber’s claim for a disability rating in
excess of 20%. Barber appealed, and, in October 2000, the Veterans Court granted the
parties’ joint motion for remand for, among other things, an “additional medical
examination.” The court stated that “[a]ny medical conclusions that the Board reaches
must be supported by independent medical evidence, such as an advisory opinion or
recognized medical treatise(s).” The Board then obtained a medical opinion from a
medical examiner at the Department of Veterans’ Affairs (“the VA”).
In September 2003, the Board mailed Barber a letter stating that he could submit
additional evidence and argument within 90 days. The letter further stated that the VA
would have the opportunity to review his case “[a]fter we receive your response, or at
the end of the 90-day period, whichever comes first.” Later that month, Barber’s
representative informed the VA that “VA Regional Office consideration is waived and
evidence is submitted to [the Board].” The Board then issued a decision in December
2003, again remanding the case to the VA Regional Office. On January 9, 2006, the
Board found that there was no evidence that Barber’s lower back disability met the
criteria for a disability rating in excess of 20%.
Barber appealed the Board’s decision. The Veterans Court affirmed in part, but
set aside the Board’s decision, remanding for further proceedings. The court affirmed
the Board’s findings that: (1) Barber’s herniated disc claim was not inextricably
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intertwined with an earlier claim for disability based on hemangioma of the lumbar spine
because the hemangioma claim had been finally decided when Barber failed to appeal
the VA’s decision, and because Barber had not alleged a causal relationship between
the two disabilities; (2) the medical examination did not have to be performed by an
independent medical examiner rather than the VA examiner; and (3) Barber’s
constitutional right to be heard was not violated when the Board issued the December
2003 decision prior to the expiration of the 90-day period following the mailing of the
September 2003 letter. The court reversed the Board’s finding that the VA had provided
Barber with adequate notice of the essential elements of the Veterans Claims
Assistance Act of 2000, required by 38 U.S.C. § 5103(a). The court thus remanded the
case to require that the VA comply with § 5103(a) by providing Barber with an
opportunity to submit new evidence and raise new arguments.
Barber timely appealed to this court. Our jurisdiction in appeals from the
Veterans Court rests on 38 U.S.C. § 7292.
DISCUSSION
The scope of our review of a Veterans Court decision is limited by statute. See
38 U.S.C. § 7292 (2000). Under § 7292(a), we may review a decision by the Veterans
Court with respect to the validity 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.” Absent a constitutional issue, we may not
review challenges to factual determinations or challenges to the application of a law or
regulation to facts. Id. § 7292(d)(2).
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Our jurisdiction is further limited to final judgments of the Veterans Court. See
Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006) (citations omitted). We only
depart from the strict rule of finality when the Veterans Court has remanded for further
proceedings if three conditions are satisfied: (1) there must have been 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 issues must
adversely affect the party seeking review; and, (3) there must be a substantial risk that
the decision would not survive a remand, i.e., that the remand proceeding may moot the
issue. Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002).
Because there was no final judgment on Barber’s claim for a disability rating in
excess of 20% for his herniated disc, the rule of finality bars Barber’s appeal, as the
three Williams conditions have not been satisfied. Here, there was not a resolution of
an issue that was separate from the remand, will directly govern the remand, or could
render the remand unnecessary. The matter was remanded to provide Barber with
appropriate notice regarding the evidence required to reopen his appeal on that claim.
The three issues affirmed by the Veterans Court relate to the same alleged injury and
whether Barber is entitled to a disability rating in excess of 20% for his herniated disc.
Thus, Barber’s entire claim was resolved in a way that was not adverse to Barber, and
he will have the chance to appeal any adverse ruling when the Veterans Court has
finally decided the issue of his disability for his herniated disc. Finally, there is no
substantial risk that the Veterans Court’s decision will not survive a remand.
Accordingly, we cannot review Barber’s appeal.
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For the foregoing reasons, we dismiss Barber’s appeal.
COSTS
No costs.
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