May v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT J. MAY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7066
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-3958,
Judge Mary J. Schoelen.
____________________________
Decided: October 7, 2010
____________________________
ROBERT J. MAY, of Port Townsend, Washington, pro
se.
A. BONDURANT ELEY, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
MAY v. DVA 2
tant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and JAMIE L. MUELLER, At-
torney. Of counsel was MICHAEL G. DAUGHERTY, Attor-
ney, Office of the General Counsel, United States
Department of Veterans Affairs, of Washington, DC.
__________________________
Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.
Robert J. May appeals from the judgment of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”), which (1) dismissed May’s appeal of an
order by the Board of Veterans’ Appeals (“the Board”) to
remand his claims, and (2) affirmed the Board’s order to
dismiss with prejudice May’s motion to revise an earlier
decision of the Board. May v. Shinseki, No. 08-3958, 2009
WL 2730493 (Vet. App. Aug. 31, 2009). Because the
Veterans Court correctly determined that the Board’s
remand order was not a “decision” under 38 U.S.C.
§ 7252, and because we lack jurisdiction to review the
Veterans Court’s dismissal of May’s motion under 38
C.F.R. § 20.1400(b), we affirm in part and dismiss in part.
BACKGROUND
May served on active duty from August 1974 to No-
vember 1986. In a series of decisions between August
1995 and June 2002, the Regional Office of the Depart-
ment of Veterans Affairs (“the RO”) granted service
connection and assigned a disability rating of 10% for
incomplete paralysis of the sciatic nerve and denied May’s
claims for service connection for thoracic spine and back
3 MAY v. DVA
disabilities. May appealed to the Board, and on March 7,
2003, the Board issued a decision affirming the RO’s
determinations. May then filed with the Board a motion
for revision of the Board’s decision based on clear and
unmistakable error (“the CUE motion”) and a motion for
reconsideration. The Board denied both motions. May
appealed the denial of his CUE motion to the Veterans
Court. While that appeal was pending, May also directly
appealed the Board’s decision to the Veterans Court. The
Veterans Court vacated and remanded the Board’s denial
of May’s CUE motion, ordering the Board to hold the
matter in abeyance under 38 C.F.R. § 20.1410 until the
Veterans Court decided the direct appeal of the Board
decision. May v. Nicholson, 19 Vet. App. 310, 320 (2005).
The Veterans Court then decided the direct appeal, vacat-
ing and remanding the Board’s decision for additional
factual determinations. May v. Nicholson, No. 04-1057,
2007 WL 2115179, at *1 (Vet. App. July 19, 2007).
On July 18, 2008, the Board issued two orders. In one
order (“Board Order 1”), the Board remanded May’s
disability claims to the RO for additional evidence and
examination. In the other order (“Board Order 2”), the
Board dismissed with prejudice the CUE motion. May
appealed both orders to the Veterans Court.
On August 31, 2009, the Veterans Court decided
May’s appeals. The court dismissed the appeal of Board
Order 1 for lack of jurisdiction. The court determined
that Board Order 1 was not a “decision” within the mean-
ing of 38 U.S.C. §§ 7252(a) and 7266(a), and therefore
May’s appeal was outside its jurisdiction. May, 2009 WL
2730493, at *2. In addition, the court affirmed Board
Order 2, reasoning that 38 C.F.R. § 20.1400(b) prohibits a
CUE motion relating to a Board decision that has been
appealed to the Veterans Court. Id. at *3.
MAY v. DVA 4
May 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 governed by 38 U.S.C. § 7292. Under § 7292(a), we may
review a decision by the Veterans Court with respect to
the validity of “any statute or regulation . . . or any inter-
pretation thereof (other than a determination as to a
factual matter) that was relied on by the [Veterans] Court
in making the decision.” We may not, absent a constitu-
tional issue, review challenges to factual determinations
or challenges to the application of a law or regulation to
facts. Id. § 7292(d)(2). Whether the Veterans Court
possessed jurisdiction over May’s appeal is a legal issue
that we review without deference. See Howard v. Gober,
220 F.3d 1341, 1343 (Fed. Cir. 2000).
With regard to Board Order 1, we must determine
whether the Veterans Court properly dismissed the
appeal for lack of jurisdiction. May argues that the
Veterans Court had jurisdiction to review Board Order 1.
He asserts that the Veterans Court misinterpreted 38
U.S.C. § 7252(a) in concluding that it lacked jurisdiction
to review the Board’s remand order. He further asserts
that the Board, in deciding to remand to the RO, made
implicit final decisions relating to his disability claims,
and that the Veterans Court had jurisdiction on account
of these implicit decisions.
In response, the Secretary of Veterans Affairs (“the
Secretary”) argues that the Veterans Court correctly
determined that it lacked jurisdiction over Board Order 1.
The Secretary asserts that the Veterans Court may not
5 MAY v. DVA
review a Board remand order, because it is neither a
“decision” under 38 U.S.C. § 7252(a) nor a “final decision”
under 38 U.S.C. § 7266(a).
In Kirkpatrick v. Nicholson, we considered whether
an order to remand a claim to an RO is a “decision” of the
Board under 38 U.S.C. § 7252(a). 417 F.3d 1361, 1362
(Fed. Cir. 2005). In that case, the Veterans Court had
dismissed the veteran’s appeal of a Board remand order
on the basis that it was not a final decision over which the
Veterans Court had jurisdiction. On appeal, we stated
that “[o]ur case law and section 7104(d)(2) define a Board
decision as including an order granting appropriate relief
or denying relief.” Id. at 1364. We noted that the Board’s
remand order contained no decision granting or denying
relief, and we concluded that the veteran’s contentions
that the Board’s order contained an implicit denial of
relief were without merit. Id. at 1364–65. We therefore
held that the Board remand order was not a decision
under § 7252(a) and that the Veterans Court correctly
concluded that it lacked jurisdiction over the veteran’s
appeal. Id. at 1364.
Like the remand order in Kirkpatrick, Board Order 1
does not grant or deny relief. It merely remands May’s
case to the RO for additional factual development. Board
Order 1 does not reach the merits of May’s claims, and
following remand, May retains the right to pursue appel-
late review of an adverse final decision of the Board.
Moreover, the Board did not implicitly deny May’s claims
by failing to address them in the remand order. As we
have explained, if the Board does not render a decision on
an issue, the Veterans Court has no jurisdiction to con-
sider the issue under § 7252(a). Howard, 220 F.3d at
1344. Thus, the Board’s silence on a particular issue in
Board Order 1 is not an implicit denial of that issue
MAY v. DVA 6
serving to confer jurisdiction on the Veterans Court. See
Kirkpatrick, 417 F.3d at 1365 (stating that the veteran’s
“claim that the Board’s refusal to address his arguments
should be reviewed as a decision of the Board is without
merit.”). We therefore conclude that the Veterans Court
correctly determined that it did not have jurisdiction over
May’s appeal of Board Order 1.
With regard to Board Order 2, we must as a threshold
matter determine whether May raises an issue over
which we have jurisdiction. As we stated above, although
we may review the Veterans Court’s interpretation of a
regulation, we may not review a challenge to the applica-
tion of a regulation to the facts. 38 U.S.C. § 7292(d). May
argues that the Veterans Court, in affirming the Board’s
dismissal of the CUE motion, misinterpreted 38 C.F.R.
§ 20.1400. May argues that the Veterans Court lacked
authority to affirm the dismissal of his CUE motion,
because the CUE motion had already been vacated by the
Veterans Court. Thus, May asserts that “the Board never
should have reviewed the ‘dead [CUE] motion’ in the first
place.”
In response, the Secretary argues that the Veterans
Court did not interpret 38 C.F.R. § 20.1400, but merely
applied this regulation to the facts of May’s case. The
Secretary asserts that the court did not discuss or expand,
and thus did not interpret, this regulation.
Section 20.1400(b) provides that a final Board deci-
sion may not be reviewed for CUE if the decision was
“appealed to and decided by a court of competent jurisdic-
tion.” Here, the Veterans Court affirmed the Board’s
dismissal of May’s CUE motion, reasoning that “§ 1400(b)
prohibits CUE motions as to Board decisions that have
been appealed to this Court.” May, 2009 WL 2730493, at
7 MAY v. DVA
*3. We fail to see how the court’s decision involved an
interpretation of § 1400(b). The Veterans Court merely
restated the language of the regulation before applying it
to the facts of May’s case; the court did not interpret or
elaborate upon the meaning of the regulation. Even if the
Veterans Court did interpret § 20.1400(b), we do not
perceive any error in the court’s decision. Moreover, to
the extent that May challenges the court’s application of
§ 20.1400(b) to the facts of his case, we lack jurisdiction to
consider any such challenge. We therefore dismiss May’s
appeal regarding Board Order 2 for lack of jurisdiction.
We have considered May’s other arguments regarding
Board Orders 1 and 2, and we find them unpersuasive.
CONCLUSION
The Veterans Court correctly determined that it did
not have jurisdiction to consider May’s appeal of the
Board’s order remanding May’s case to the RO. Moreover,
we lack jurisdiction to hear May’s appeal of the Veterans
Court’s decision to dismiss May’s CUE motion. We there-
fore affirm in part and dismiss in part.
AFFIRMED IN PART and DISMISSED IN PART
COSTS
No costs.