Date: 08-10-2015

Case Style: Geiry L. Mathis v. Robert A. McDonald

Case Number: 2015-7054

Judge: Per Curiam

Court: United States Court of Appeals for the Federal Circuit (District of Columbia)

Plaintiff's Attorney: GEIRY L. MATHIS, Home, PA, pro se.

Defendant's Attorney: AMELIA LISTER-SOBOTKIN¸ Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., SCOTT D. AUSTIN; DAVID J. BARRANS,
CHRISTINA LYNN GREGG, Office of General Counsel, United
States Department of Veterans Affairs.

Description: Geiry L. Mathis appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) that dismissed, for lack of jurisdiction, Mr.
Mathis’s appeal of a remand decision of the Board of
Veterans’ Appeals (“Board”). Mr. Mathis’s central contention
in this case is that he has wrongly been denied total
disability due to individual employability (“TDIU”) resulting
from an injury sustained during combat service.
Because the Veterans Court correctly determined that it
lacked jurisdiction to review the Board’s remand decision,
we affirm that portion of the Veterans Court’s decision.
Because we lack jurisdiction over the remaining portions
of this appeal, they are dismissed.
BACKGROUND
Mr. Mathis served on active duty in the U.S. Army
from June 1968 to September 1969, and was engaged in
combat service in the Republic of Vietnam. During his
service, Mr. Mathis was injured by a gunshot wound to
the left side of his head. In October 1969, the U.S. Department
of Veterans Affairs regional office (“RO”)
awarded Mr. Mathis a disability rating of 20%, wherein
the first 10% arose from a scar as a residual of the gunshot
wound, and the second 10% arose from headaches
and tinnitus as a result of the trauma, under diagnostic
code 9304 for organic brain syndrome (“OBS”). In January
1979, the RO increased Mr. Mathis’s disability rating
for OBS from 10% to 50%, resulting in a combined disability
rating of 60%, which satisfied one criterion for TDIU.
See 38 C.F.R. § 4.16(a). The RO also found individual
unemployability and granted Mr. Mathis TDIU with an
effective date of October 17, 1978.
MATHIS v. MCDONALD 3
In March 1979, the RO requested a new medical examination
and, this time, the examiner determined there
was no basis for Mr. Mathis’s OBS diagnosis. Finding
that the evidence no longer warranted sustaining a 50%
rating, the RO reduced Mr. Mathis’s disability rating for
OBS from 50% to 30%. As a result, the RO concluded that
Mr. Mathis no longer met the requirements for TDIU.
From the RO’s March 1979 decision sprung a number
of appeals and remands. The first line of decisions addressed
an issue not on appeal here—Mr. Mathis’s contention
that the March 1979 decision to reduce his
disability rating from 50% to 30% contained clear and
unmistakable error (“CUE”). Specifically, the Board
found the RO’s decision did not contain CUE, but the
Veterans Court vacated and remanded. The Board, on
remand, again determined that the 1979 decision did not
contain CUE, but the Veterans Court again reversed and
remanded, this time with directions for the Board to
restore Mr. Mathis’s 50% disability rating for OBS.
Important to the present appeal, the Veterans Court
noted in its 2008 decision that it lacked jurisdiction to
address Mr. Mathis’s additional argument that the March
1979 decision also involved CUE with respect to the
denial of TDIU, as this was a distinct theory of CUE that
had not been previously presented to the RO and adjudicated
by the Board. On remand, the Board restored Mr.
Mathis’s disability rating for OBS to 50%, found that it,
too, lacked jurisdiction over the issue of whether there
was CUE in the March 1979 denial of TDIU, and remanded
that matter back to the RO. Thereafter, the Veterans
Court affirmed the Board’s restoration of Mr. Mathis’s
50% disability rating for OBS as well as its referral of the
TDIU matter back to the RO. On appeal to this court, we
summarily affirmed and dismissed-in-part.
Meanwhile, in a second line of decisions relevant to
this appeal, the RO found in February 2011 that its
March 1979 decision to deny Mr. Mathis entitlement to
4 MATHIS v. MCDONALD
TDIU did not contain CUE. Mr. Mathis filed a notice of
disagreement, but no further action was taken by the RO.
In December 2013, the Board determined that because
the RO had not taken any action in response to Mr.
Mathis’s notice of disagreement, the matter must be
remanded to the RO for issuance of a statement of the
case (“SOC”), during which proceedings Mr. Mathis could
submit additional evidence and argument. Mr. Mathis
appealed the Board’s remand decision to the Veterans
Court. In a single-judge order in August 2014, that court
dismissed his appeal for lack of jurisdiction on grounds
that the Board’s remand decision for a SOC was not a
final appealable decision. In that same decision, the
Veterans Court also denied Mr. Mathis’s motions for an
extension of a stay of proceedings to obtain counsel and
for reassignment of the case to another judge. Following
the single-judge decision, Mr. Mathis filed a motion for
panel review (which was granted, following which the
panel adopted the single-judge order as the decision of the
court) and a motion for panel and full-court reconsideration
(which was denied). Mr. Mathis now appeals to us.
DISCUSSION
Mr. Mathis asks this court to finally resolve his claim
that he has wrongly been denied TDIU. He argues that,
now that the agency has correctly found that the March
1979 disability rating reduction was the result of CUE,
the agency must also recognize that the March 1979
denial of TDIU cannot stand. It is Mr. Mathis’s position
that the agency’s continuous appeals and remands, without
resolving the TDIU issue, constitutes a misapplication
of 38 C.F.R. §§ 3.105(a), 4.1, 4.2, 4.41, and 4.42 and violation
of his due process and constitutional rights.
Our ability to act is bound by the jurisdictional and
procedural rules that govern appeals of veterans’ claims
through the agency, the Veterans Court, and this court.
In this case, Mr. Mathis is appealing from the Veterans
MATHIS v. MCDONALD 5
Court’s decision that it lacks jurisdiction over the Board’s
remand decision. Whether the Veterans Court possessed
jurisdiction over Mr. Mathis’s appeal is an issue of statutory
construction that we review without deference. 38
U.S.C. § 7292; Howard v. Gober, 220 F.3d 1341, 1343
(Fed. Cir. 2000).
The Veterans Court correctly determined that it
lacked jurisdiction. Section 7252(a) of Title 38 of the
United States Code Annotated provides in relevant part:
§ 7252. Jurisdiction; finality of decisions
The Court of Appeals for Veterans Claims shall
have exclusive jurisdiction to review decisions of
the Board of Veterans’ Appeals. The Secretary
may not seek review of any such decision. The
Court shall have power to affirm, modify, or reverse
a decision of the Board or to remand the
matter, as appropriate.
38 U.S.C. § 7252(a). As we explained in Howard, “the
Court of Appeals for Veterans Claims’ jurisdiction ‘is
premised on and defined by the Board’s decision concerning
the matter being appealed,’ and when the Board has
not rendered a decision on a particular issue, the [Veterans]
[C]ourt has no jurisdiction to consider it under section
7252(a).” 220 F.3d at 1344 (quoting Ledford v. West,
136 F.3d 776, 1343 (Fed. Cir. 1998)). Here, the Veterans
Court dismissed on grounds that the Board’s remand
decision for a SOC was not a final appealable decision
that addressed the merits of Mr. Mathis’s challenge to the
TDIU determination. The Veterans Court was correct to
do so, as a Board remand decision is “not a decision within
the meaning of section 7252(a).” Kirkpatrick v. Nicholson,
417 F.3d 1361, 1365 (Fed. Cir. 2005).
Our inability to act at this stage, however, does not
mean that Mr. Mathis cannot obtain the relief he seeks.
The issue of CUE in the March 1979 denial of TDIU has
6 MATHIS v. MCDONALD
been remanded to the RO. In that forum, Mr. Mathis can
present his arguments that certain regulations have been
misapplied, and that his now correctly restored 50% OBS
disability rating gives rise to a combined rating that
entitles him to TDIU. If Mr. Mathis disagrees with the
RO’s determination, he can, at that time, seek further
review.
We also conclude that we lack jurisdiction to consider
the Veterans Court’s denials of Mr. Mathis’s motions for
an extension of a stay of proceedings to obtain counsel
and for reassignment of the case to another judge. With
respect to the stay motion, the Veterans Court noted that
it had already granted Mr. Mathis multiple stays to
obtain counsel, and thus opted to exercise its discretion
under Rule 5(a)(3) of its Rules of Practice and Procedure
in denying an additional extension. This determination
was a factual one, does not present any question of law,
and is therefore outside our jurisdiction. 38 U.S.C.
§ 7292. Likewise, with respect to Mr. Mathis’s motion for
reassignment to Judge Schoelen (who has handled other
of Mr. Mathis’s matters), the Veterans Court noted that
the motion to dismiss was properly assigned to Judge
Pietsch according to the court’s Internal Operating Procedures,
and that no exception to the usual rules applied.
Nevertheless, the Veterans Court went on to further
consider Mr. Mathis’s motion in the exercise of its discretion,
but concluded that reassignment was not warranted
in this case. Again, this determination was a factual one,
does not present any question of law, and is therefore
outside our jurisdiction. 38 U.S.C. § 7292.
For the foregoing reasons, we affirm the Veterans
Court’s dismissal of the Board’s remand decision, and
dismiss the remaining portions of this appeal.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
MATHIS v. MCDONALD 7
COSTS
Each party shall bear their own costs.

Outcome: AFFIRMED-IN-PART AND DISMISSED-IN-PART

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Defendant's Experts:

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