Case: 21-1977 Document: 19 Page: 1 Filed: 03/14/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VIVIAN M. JOHNSON,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1977
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4384, Judge Joseph L. Falvey
Jr.
______________________
Decided: March 14, 2022
______________________
VIVIAN M. JOHNSON, Nashua, NH, pro se.
MATTHEW JUDE CARHART, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
PATRICIA M. MCCARTHY; AMANDA BLACKMON, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 21-1977 Document: 19 Page: 2 Filed: 03/14/2022
2 JOHNSON v. MCDONOUGH
______________________
Before DYK, PROST, and REYNA, Circuit Judges.
PER CURIAM.
Vivian M. Johnson appeals a decision of the U.S. Court
of Appeals for Veterans Claims (Veterans Court) remand-
ing to the Board of Veterans’ Appeals (Board). See Johnson
v. McDonough, No. 20-4384,
2021 WL 1226582 (Vet. App.
Apr. 2, 2021) (Veterans Court Decision). Ms. Johnson
claims that she is entitled to a larger monthly death pen-
sion from the Department of Veterans Affairs (VA). We
dismiss.
BACKGROUND
Ms. Johnson is the surviving spouse of Air Force vet-
eran Edward G. Tremblay. In October 2013, a VA Regional
Office (RO) awarded Ms. Johnson a death pension benefit.
In September 2015, Ms. Johnson notified the VA that she
would begin receiving Social Security benefits the following
month. In light of this increased income, the RO deter-
mined that Ms. Johnson’s monthly death pension benefit
should be reduced to zero, effective November 1, 2015.
Death pension benefits are subject to certain income limi-
tations. See
38 U.S.C. § 1541;
38 C.F.R. §§ 3.3(b)(4),
3.23(a)(5), (b), (d)(5).
Ms. Johnson appealed the RO’s determination to the
Board. 1 While that appeal was pending, the RO partially
granted Ms. Johnson death pension benefits in the amount
1 Ms. Johnson also appealed the RO’s determination
that she had received an overpayment in benefits that
would be collected as a debt. As that debt was later waived,
and the issue resolved in Ms. Johnson’s favor, see Veterans
Court Decision, at *1–2, the overpayment issue is not rele-
vant to this appeal.
Case: 21-1977 Document: 19 Page: 3 Filed: 03/14/2022
JOHNSON v. MCDONOUGH 3
of $37 per month for 2015 because it found healthcare costs
had temporarily decreased her income. However, the RO
determined that the pension should be terminated as of
January 1, 2016. Thereafter, the Board dismissed Ms.
Johnson’s appeal after concluding that there were no fur-
ther issues of law or fact to decide.
On appeal, the Veterans Court found the Board’s dis-
missal of Ms. Johnson’s claim was erroneous on the ground
that there remained “a continuing controversy over the
amount of monthly benefits . . . .” Veterans Court Decision,
at *2. The Veterans Court observed that whereas the VA
maintained that “Ms. Johnson should have received $37
per month in 2015 and nothing in 2016[,] . . . Ms. Johnson
maintain[ed] that she [wa]s entitled to more.”
Id. The Vet-
erans Court thus ordered a remand for the Board to ad-
dress whether Ms. Johnson “is entitled to a compensable
monthly death pension benefit.”
Id. Ms. Johnson appeals
the Veterans Court’s decision to this court. This court has
jurisdiction to review final decisions of the Veterans Court.
See
38 U.S.C. § 7292.
DISCUSSION
In appeals from the Veterans Court, we have “gener-
ally declined to review non-final orders,” including remand
orders. Williams v. Principi,
275 F.3d 1361, 1363 (Fed. Cir.
2002) (quoting Adams v. Principi,
256 F.3d 1318, 1320
(Fed. Cir. 2001)). This “finality requirement is based on
prudential considerations,”
id., and “serves the important
purpose of promoting efficient judicial administration,”
id.
at 1364 (quoting Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 374 (1981)). Although we have articulated
narrow exceptions to this finality requirement, 2 see
id.,
none is satisfied here.
2 “Our cases establish that we will depart from the
strict rule of finality when the [Veterans Court] has
Case: 21-1977 Document: 19 Page: 4 Filed: 03/14/2022
4 JOHNSON v. MCDONOUGH
We therefore dismiss Ms. Johnson’s appeal of the Vet-
erans Court’s decision. If Ms. Johnson is dissatisfied with
the final Board remand decision, she may then appeal to
the Veterans Court and, if necessary, to this court.
DISMISSED
COSTS
No costs.
remanded for further proceedings only if three conditions
are satisfied: (1) there must have been a clear and final de-
cision of a legal issue that (a) is separate from the remand
proceedings, (b) will directly govern the remand proceed-
ings or, (c) if reversed by this court, would render the re-
mand proceedings unnecessary; (2) the resolution of the
legal issues must adversely affect the party seeking re-
view; and, (3) there must be a substantial risk that the de-
cision would not survive a remand, i.e., that the remand
proceeding may moot the issue.” Williams,
275 F.3d at
1364 (citations omitted).
