Geiry L. Mathis v. Robert A. McDonald

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

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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.

AFFIRMED-IN-PART AND DISMISSED-IN-PART