Smithers v. McDonald

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BOICE F. SMITHERS, JR.,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7079
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2835, Judge Margaret C.
Bartley.
______________________
Decided: December 18, 2015
______________________
BOICE F. SMITHERS, Jr., Rome, NY, pro se.
JANA MOSES, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD; JONATHAN ELLIOTT TAYLOR,
DAVID J. BARRANS, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
2 SMITHERS v. MCDONALD
______________________
Before PROST, Chief Judge, CLEVENGER, and MOORE,
Circuit Judges.
PER CURIAM.
Boice F. Smithers, Jr., appeals from the memorandum
decision of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”) affirming the Board of
Veterans’ Appeals (“Board”) decision denying him enti-
tlement to a non-service-connected pension. We dismiss
for lack of jurisdiction.
BACKGROUND
Mr. Smithers served on active duty in the U.S. Navy.
In August 2001, Mr. Smithers filed an application for
Department of Veterans Affairs (“VA”) disability compen-
sation for multiple conditions. In 2004, the regional office
denied all of Mr. Smithers’ claims. Mr. Smithers ap-
pealed to the Board and the Veterans Court, and on
remand, testified via videoconference before the Board. In
July 2012, the Board denied service connection for all of
Mr. Smithers’ claimed conditions. The Board also denied
Mr. Smithers’ claim for a non-service-connected pension,
concluding that he did not serve in the military during a
“period of war,” as required by 38 U.S.C. § 1521. On
March 20, 2012, the Veterans Court issued a memoran-
dum decision setting aside the Board’s denials of service
connection and remanding for readjudication. The Veter-
ans Court affirmed the Board’s denial of entitlement to a
non-service-connected pension. Mr. Smithers 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
SMITHERS v. MCDONALD 3
. . . 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 do not have jurisdiction over Veterans Court re-
mands because they are not final judgments. Winn v.
Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). However, when
a veteran’s case involves multiple claims and the Veter-
ans Court remands some of the claims but reaches a final
judgment on others, we can review the claims which have
been fully and finally adjudicated. Elkins v. Gober, 229
F.3d 1369, 1374 (Fed. Cir. 2000). In this case, we may
review claims finally decided by the Veterans Court that
are not intertwined with the remanded claims. See Allen
v. Principi, 237 F.3d 1368, 1374 (Fed. Cir. 2001).
Mr. Smithers appeals the Veterans Court’s remand of
his service-connected disability claims and its affirmance
of the denial of his claim for a non-service-connected
pension. Mr. Smithers’ service-connected disability
claims have been remanded to the Board, and are there-
fore not final. We lack jurisdiction to review these claims.
The Veterans Court has, however, reached a final decision
on Mr. Smithers’ claim for a non-service-connected pen-
sion. And because it is not intertwined with the remand-
ed claims, we are not barred from reviewing this claim on
the grounds that it is not a final judgment.
Nonetheless, because Mr. Smithers only challenges
fact findings or the application of law to fact, we lack
jurisdiction over the appeal of the Veterans Court’s denial
of the claim for a non-service-connected pension under
§ 7292. To obtain a non-service-connected pension, the
veteran must have served during a “period of war.” 38
U.S.C. § 1521(a); see also 38 C.F.R. § 3.2(f), (i) (2013)
(defining “period of war” to include the Persian Gulf War,
4 SMITHERS v. MCDONALD
from August 2, 1990 until the present). Mr. Smithers
challenges the Veterans Court’s fact finding that he only
served until 1989, arguing instead that he served until
1992. See Appellant’s Inf. Br. 7. Mr. Smithers also ar-
gues that he should receive a non-service-connected
pension because he “spent more time overseas than at
home” during his service. Appellant’s Inf. Br. 3–4. Mr.
Smithers challenges the Veterans Court’s factual deter-
minations and its application of the law to the facts of his
case. We do not have jurisdiction to review these chal-
lenges.
CONCLUSION
For the foregoing reasons, the appeal is dismissed for
lack of jurisdiction.
DISMISSED
COSTS
No costs.