Murray v. Gibson

Case: 14-7076 Document: 12 Page: 1 Filed: 06/17/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE P. MURRAY, JR.,
Claimant-Appellant,
v.
SLOAN D. GIBSON, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee.
______________________
2014-7076
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 06-3271, Judge Mary J. Schoelen.
______________________
ON MOTION
______________________
Before PROST, Chief Judge, WALLACH and CHEN, Circuit
Judges.
PER CURIAM.
ORDER
The Acting Secretary of Veterans Affairs moves for
the court to dismiss this appeal.
George P. Murray served in the Army from July 1970
until July 1973. He sought disability compensation for an
Case: 14-7076 Document: 12 Page: 2 Filed: 06/17/2014
2 MURRAY v. GIBSON
acquired psychiatric disorder, including post-traumatic
stress disorder (PTSD) in 1999. A Department of Veter-
ans Affairs (DVA) medical examination diagnosed him
with, among other things, PTSD.
A June 2006 Board of Veterans’ Appeals (Board) deci-
sion determined that DVA’s duty to assist had been
satisfied. The Board then denied his claim for disability
compensation because Murray’s PTSD stressors had not
been independently and objectively corroborated in ac-
cordance with the governing regulations then in effect.
The United States Court of Appeals for Veterans
Claims (Veterans Court) remanded Murray’s claim for the
Board to apply the amended version of 38 C.F.R.
§ 3.304(f)(3) to determine if his PTSD stressors could be
verified and for the Board to provide an adequate state-
ment of reasons or bases as to whether it made reasonable
efforts to obtain Murray’s service records. Murray ap-
peals the remand order.
This court has held that remand orders of the Veter-
ans Court are not normally immediately appealable,
because appeal should await entry of a final decision. See
Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006);
Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002);
Adams v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001).
Our decision in Williams provides a limited exception
to the general rule that remand orders are not immediate-
ly appealable. We will depart from the strict rule of
finality when a veteran establishes: (1) the Veterans
Court issued a clear and final decision on 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 sub-
stantial risk that the decision would not survive a re-
Case: 14-7076 Document: 12 Page: 3 Filed: 06/17/2014
MURRAY v. GIBSON 3
mand, i.e., that the remand proceeding may moot the
issue. Williams, 275 F.3d at 1364.
Because Murray’s appeal does not present any issues
that would evade further review by this court and because
Murray has not appealed from a final order or judgment,
we grant the motion to dismiss for lack of jurisdiction. We
waive the requirements of Fed. Cir. R. 27(f) which would
otherwise require that jurisdictional issues be raised in a
responsive brief after the filing of the appellant’s brief.
Murray may of course later appeal from a final Veterans
Court decision if one is entered in a subsequent appeal to
that court.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s26
ISSUED AS A MANDATE: June 17, 2014