Matthews v. Principi , 2001 U.S. Vet. App. LEXIS 218 ( 2001 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 00-1872
ALLAN S. MATTHEWS, APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, STEINBERG, and GREENE, Judges.
ORDER
On October 2, 2000, the appellant filed a Notice of Appeal listing June 6, 2000, as the date
of the Board of Veterans' Appeals (BVA or Board) decision being appealed. The Court notes that
the BVA in its June 6, 2000, decision determined that a claim of entitlement to service connection
for post-traumatic stress disorder was well grounded and remanded the claim to a Department of
Veterans Affairs (VA) regional office for further development.
The Secretary later moved to dismiss for lack of jurisdiction, asserting that the appellant has
failed to exhaust his administrative remedies in that the Board has not yet issued a final decision.
On November 8, 2000, the appellant, through counsel, filed a response in opposition to the
Secretary's motion to dismiss. The appellant argues that the Court has jurisdiction to review
decisions that adversely affect a claimant. The adverse decision in this case, he argues, was the
determination by the Board regarding the applicability of the reduced evidentiary burden on an
appellant under 38 U.S.C. § 1154(b). The appellant contends that the Board's decision in this matter
misinterprets that provision in such a manner as to adversely affect the remanded proceedings.
Further, the appellant asserts that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
recently addressed this same problem under 38 U.S.C. § 7292 in Dambach v. Gober, 223 F.3d 1376(Fed. Cir. 2000).
In Dambach, the Federal Circuit determined that it had jurisdiction to review a nonfinal
decision of this Court when that decision contains a statutory interpretation that will affect the
remand proceeding and that legal issue might evade further review. Id. at 1379. The Federal Circuit
indicated that this Court had interpreted section 1154(b) and its applicability to the case and then
directed the Board on remand to disregard the section 1154(b) contention because, the Federal
Circuit stated, this Court had held that the provision did not apply to a veteran with a service medical
report. Ibid. The Federal Circuit determined that such an interpretation altered the evidentiary
burdens for service connection in the remand proceedings and that the result of the remand may
make unreviewable any such determination that section 1154(b) cannot be applied to a veteran with
a service medical report that showed at least one in-service illness. Id. at 1380. The Federal Circuit
concluded in Dambach, therefore, that it was proper for that court to assert its jurisdiction. Id. at
1379.
In the instant appeal, the Court holds that, unlike in Dambach, the allegations here of any
misinterpretation of section 1154(b) raised by the appellant would not evade judicial review in this
Court. Pursuant to 38 U.S.C. § 7266(a), in order for a claimant to obtain review of a BVA decision
by this Court, that decision must be final. See McCartt v. West, 12 Vet.App. 164, 167 (1999)
(dismissing appeal as to claim "[b]ecause a final decision has not been issued by the BVA with
respect to [that] claim" (citing, inter alia, § 7266(a); Hampton v. Gober, 10 Vet.App. 481, 483
(1997); and In re Quigley, 1 Vet.App. 1, 1-2 (1990)); cf. 38 U.S.C. § 7292(a), (d)(2) (Federal Circuit
jurisdiction over this Court's decisions limited to review of decisions regarding "validity of any
statute or regulation . . . or any interpretation thereof (other than a determination as to a factual
matter)"; Federal Circuit "may not review (A) a challenge to a factual determination or (B) challenge
to a law or regulation as applied to the facts of a particular case"). Here, no final decision has been
issued by the BVA. If and when a final Board decision is issued on remand, any matter determined
in such a decision may be appealed, without any limitation on our jurisdiction, to this Court as of
right. See 38 U.S.C. §§ 7252(a), 7261, 7266(a).
Upon consideration of the foregoing, it is
ORDERED that the Secretary's motion is granted and this appeal is DISMISSED for lack of
jurisdiction.
DATED: March 14, 2001 PER CURIAM.
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