Baker v. Shinseki , 413 F. App'x 257 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GILBERT BAKER, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7040
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 08-195, Chief Judge Bruce E.
Kasold.
__________________________
Decided: March 11, 2011
__________________________
GILBERT BAKER, JR., of Jackson, Mississippi, pro se.
MICHAEL S. MACKO, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and STEVEN
J. GILLINGHAM, Assistant Director. Of counsel on the
2 BAKER v DVA
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, and KRISTIANA M. BRUGGER, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before RADER, Chief Judge, CLEVENGER, and LINN, Circuit
Judges
PER CURIAM.
Gilbert Baker, Jr. (“Baker”) appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming in part, setting aside in part,
and remanding for further adjudication a November 16,
2007, decision of the Board of Veterans Appeals (“the
Board”). See Baker v. Shinseki, No. 08-195, (Vet. App.
Sept. 28, 2010) (“Decision”). For the following reasons,
this court affirms in part and dismisses in part.
BACKGROUND
Baker served in the United States Army from 1965 to
1968. The procedural history of this case is long, compli-
cated, and mostly irrelevant to this appeal. What is
pertinent here is that sometime after his service, Baker
filed claims for service-connected disability benefits with
a Department of Veterans Affairs regional office (“RO”)
for a variety of medical conditions: (1) asthma; (2) ulcers;
(3) emphysema; (4) bilateral leg condition; (5) bilateral
ankle condition; (6) psychiatric condition; (7) sarcoidosis;
and (8) hemorrhoids.
On August 14, 2003, the RO denied service connection
for the first six conditions listed above, but did not ad-
dress Baker’s two remaining claims (sarcoidosis and
hemorrhoids). Baker appealed to the Board of Veterans’
Appeals (“Board”), which denied benefits for all six condi-
tions addressed in the RO decision. For each of these
BAKER v DVA 3
conditions, the Board found that Baker’s medical records
first showed evidence of the condition (or worsening of the
condition) subsequent to Baker’s service and that no
competent medical evidence had shown a relationship
between his current conditions and an in-service injury or
disease. The Board remanded the two conditions not
addressed by the RO for further development and adjudi-
cation because the RO had not sufficiently addressed
Baker’s pending disagreements on those issues.
On appeal, the Veterans Court held that it lacked
jurisdiction to assess Baker’s claims relating to sarcoido-
sis and hemorrhoids because those claims had been
remanded to the RO and therefore the court had no final
decision to consider. Next, the court affirmed the Board’s
decision denying benefits for emphysema finding that the
Board’s conclusions on that issue were not erroneous.
Finally, the Veterans Court remanded the remaining five
issues (asthma, ulcers, bilateral leg disorder, bilateral
ankle disorder, and psychiatric condition) to the Board for
further adjudication because the Board failed to discuss
all the relevant laws and regulations and failed to address
certain medical evidence in the record related to those
conditions.
Baker timely appealed the Veterans Court’s decision.
We have jurisdiction pursuant to 38 U.S.C. § 7292.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Under 38 U.S.C. § 7292(a),
this court has jurisdiction over rules of law or the validity
of any statute or regulation, or an interpretation thereof
relied on by the Veterans Court in its decision. In appeals
from the Veterans Court not presenting a constitutional
question, this court “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.” 38
4 BAKER v DVA
U.S.C. § 7292(d)(2). In other words, this court generally
has no jurisdiction to review challenges to the Board’s
factual determinations. See, e.g., Johnson v. Derwinski,
949 F.2d 394, 395 (Fed. Cir. 1991).
In his informal brief, Baker recites his medical history
and contends that he submitted sufficient evidence to
show he is entitled to service-connected disability benefits
for all of his eight claims.
With respect to Baker’s claims of sarcoidosis and
hemorrhoids, we affirm the Veterans Court’s dismissal for
lack of jurisdiction. Section 7252 confers jurisdiction to
the Veterans Court over final Board decisions. Howard v.
Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). The Veter-
ans Court does not have jurisdiction to consider any issue
on which the Board has not rendered a decision.
Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir.
2005). Since the Board’s remand of these two issues was
not a decision under § 7252, the Veterans Court properly
dismissed for lack of jurisdiction.
Similarly, this court generally reviews only final deci-
sions of the Veterans Court. Williams v. Principi, 275
F.3d 1361, 1363 (Fed. Cir. 2002). And we depart from
that rule only under various exceptional conditions not
present here. Id. In fact, Baker effectively won his case
at the Veterans Court with respect to his claims of service
connection for five of his claims because that court set
aside the Board’s decisions rejecting those claims and
remanded them for further adjudication. See Decision at
2-4. This remand gives Baker another chance to receive
the outcome he desires. Thus, this court dismisses
Baker’s claims regarding service connection for asthma,
ulcers, bilateral leg disorder, bilateral ankle disorder, and
psychiatric disorder because the Veterans Court’s remand
is not sufficiently final for purposes of our review.
BAKER v DVA 5
The Veterans Court did make a final decision on
Baker’s remaining claim of service connection for emphy-
sema by affirming the Board’s denial of benefits. The
Veterans Court reviewed the Board’s factual findings and
the evidence of record and found that Baker did not
demonstrate error in the Board’s denial. Decision at 4. In
his informal brief, Baker reasserts the medical history
behind this claim and argues that there is substantial
evidence for a finding of service connection. To review
this issue, this court would have to reexamine the record
evidence, determine whether the Board’s factual conclu-
sions were correct, and determine whether the Board
correctly applied the laws pertaining to service-connected
disability to those facts. These determinations are not
within this court’s jurisdiction. 38 U.S.C. § 7292(d)(2).
Thus, we must dismiss Baker’s claim of service connection
for emphysema for lack of jurisdiction.
Finally, Baker alleges that at least one of the claims
filed with the RO was fraudulent in that it was stamped
as received by the Houston, Texas RO instead of the
Mississippi RO, the RO where he purportedly filed the
claim. Apparently, Baker believes that his claims were
denied as unsupported solely because the “fraudulent”
claim did not include all the supporting evidence included
with his “true claim.” Neither the Veterans Court opinion
nor the government’s response brief addresses this alleged
discrepancy. Since the Veterans Court remanded most of
Baker’s issues to the Board for consideration of all the
record evidence, regardless of when or where it was
submitted, Baker’s allegation of fraud is irrelevant to this
appeal. Even if it were germane, review of this allegation
would require this court to examine evidence for the first
time on appeal. This court, however, “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 particu-
lar case.” 38 U.S.C. § 7292(d)(2). Thus, Baker’s claim of
6 BAKER v DVA
fraud does not present a question that this court has
jurisdiction to review.
CONCLUSION
This court affirms the Veterans Court’s determination
that it lacked jurisdiction to review Baker’s claims of
service connection for sarcoidosis and hemorrhoids. This
court dismisses Baker’s claim for service connection for
emphysema for lack of jurisdiction and dismisses Baker’s
remaining claims because the Veterans Court’s remand
order is not sufficiently final for purposes of review. The
appeal is therefore affirmed in part and dismissed in part.
AFFIRMED IN PART AND DISMISSED IN PART
COSTS
Each party shall bear its own costs.