Geri v. Dept. Of Veterans Affairs , 412 F. App'x 287 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MICHAEL R. GERI,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7055
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-1224, Judge Lawrence B.
Hagel.
__________________________
Decided: February 2, 2011
__________________________
MICHAEL D.J. EISENBERG, Law Offices of Michael D.J.
Eisenberg, of Washington, DC, for claimant-appellant.
DAWN E. GOODMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
On the brief were TONY WEST, Assistant Attorney Gen-
GERI v. DVA 2
eral, JEANNE E. DAVIDSON, Director, MARTIN F. HOCKEY,
JR., Assistant Director. Of counsel on the brief were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
and MARTIE ADELMAN, Attorney, Office of the General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before GAJARSA, DYK, and PROST, Circuit Judges.
PROST, Circuit Judge.
Appellant Michael R. Geri appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the Board of Veterans’
Appeals’ (“Board’s”) denial of his request for an increased
disability rating for epilepsy and headaches. Geri v.
Shinseki, No. 08-1224, 2009 WL 3720581 (Vet. App. Nov.
9, 2009) (“Veterans Court Decision”). Because the Veter-
ans Court correctly interpreted its jurisdictional statute
in concluding that Mr. Geri’s objections to the Board’s
decision were beyond the jurisdiction of the Veterans
Court, we affirm.
BACKGROUND
Mr. Geri served on active duty in the U.S. Army from
June 1977 until February 1984. In July 1984, Mr. Geri
filed claims for disability benefits for several conditions,
including grand mal epilepsy, headaches, and atypical
personality disorder. In September 1984, the Department
of Veterans Affairs Regional Office (“RO”) granted Mr.
Geri a 100% disability rating for service-connected grand
mal epilepsy and a 30% disability rating for headaches,
effective from Mr. Geri’s discharge from the service in
February 1984. In December 1986, the RO reduced Mr.
Geri’s disability ratings for epilepsy and headaches to
3 GERI v. DVA
10% for each disability (“1986 RO Disability Ratings
Reduction”). Mr. Geri appealed these reductions to the
Board. In September 1991, the Board granted an increase
in Mr. Geri’s disability rating for headaches to 30%,
effective from the time of the 1986 RO Disability Ratings
Reduction, but denied an increase in his disability rating
in excess of 10% for epilepsy (“September 1991 Board
Decision”). Mr. Geri did not appeal the September 1991
Board Decision.
In June 1999, Mr. Geri sought to reopen his claims for
disability benefits for epilepsy and headaches based on
increased symptom severity. In June 2000, Mr. Geri filed
a separate claim for total disability based on individual
unemployability (“TDIU”) for a psychiatric disorder. In
July 2000, the RO denied Mr. Geri an increased disability
rating for epilepsy and headaches as well as his TDIU
claim.
In December 2005, the RO granted Mr. Geri a 100%
disability rating for dementia, effective from June 2000,
and concluded that this rating rendered moot Mr. Geri’s
TDIU claim. In a separate Supplemental Statement of
the Case, also issued in December 2005, the RO found
insufficient evidence to increase Mr. Geri’s disability
ratings for epilepsy and headaches.
In December 2005, Mr. Geri filed an appeal to the
Board, requesting that the Board (1) vacate or reverse the
September 1991 Board Decision or (2) reverse the 1986
RO Disability Ratings Reduction. The Board certified Mr.
Geri’s appeal, defining the issues on appeal as whether
Mr. Geri was entitled to an increased disability rating for
epilepsy and headaches. In August 2007, the Board
issued a decision on Mr. Geri’s appeal (“August 2007
Board Decision”). The Board found that the Department
GERI v. DVA 4
of Veterans Affairs (“VA”) had complied with its duty to
notify and assist Mr. Geri. The Board determined that
the only issues on appeal were Mr. Geri’s entitlement to a
disability rating in excess of 10% for epilepsy and in
excess of 30% for headaches. Upon analysis, the Board
denied Mr. Geri an increased disability rating for both
epilepsy and headaches.
Mr. Geri appealed the August 2007 Board Decision to
the Veterans Court. On appeal, Mr. Geri argued (1) that
he submitted an informal claim for TDIU and for disabil-
ity benefits for a psychological disorder when he initially
filed for benefits in 1984 and the Board erred by failing to
address the effective date of his benefits based on this
informal claim and (2) the Board erred in concluding that
the VA satisfied its duty to assist in developing his claim
for a psychological disorder because the VA did not obtain
a medical examination in 1984. Veterans Court Decision
at *2.
On November 9, 2009, the Veterans Court affirmed
the August 2007 Board Decision. Id. at *1, *3. First, the
Veterans Court determined that it lacked jurisdiction to
address Mr. Geri’s argument regarding his alleged infor-
mal claims for TDIU and for disability benefits for a
psychological disorder, because Mr. Geri did not raise the
issue in his appeal before the Board and thus the August
2007 Board Decision did not address the issue. Id. at *2.
Further, the Veterans Court concluded that it did not
have jurisdiction to address Mr. Geri’s duty to assist
argument, because the argument was unrelated to the
only claims Mr. Geri raised before the Board, namely his
claims for disability benefits for epilepsy and headaches.
See id. at *2-3.
5 GERI v. DVA
Mr. Geri timely appealed to this court. We have ju-
risdiction under 38 U.S.C. § 7292(c).
DISCUSSION
“Our jurisdiction to review the decisions of the [Veter-
ans Court] is limited by statute.” Summers v. Gober, 225
F.3d 1293, 1295 (Fed. Cir. 2000). Under 38 U.S.C.
§ 7292(d)(2), we may not review (1) “a challenge to a
factual determination” or (2) “a challenge to a law or
regulation as applied to the facts of a particular case”
unless the challenge presents a constitutional issue.
Section 7292(a), however, provides that we may review
the validity of the Veterans Court’s decision “on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof” that the Veterans Court relied on in making
its decision. 38 U.S.C. § 7292(a).
On appeal, Mr. Geri argues that the Veterans Court
erred in interpreting its jurisdictional statute in holding
that it was barred from considering his arguments re-
garding his alleged informal claim as well as the VA’s
failure to comply with its duty to assist. 1 We have juris-
1 In response to the government’s argument that we
lack jurisdiction over Mr. Geri’s case, Mr. Geri, in his
reply brief, also argues that he was denied his constitu-
tional right to due process and notice. Appellant’s Reply
Br. 1, 4. Mr. Geri merely references these constitutional
rights and does not flesh out his constitutional argument
in any detail. As such, we reject this frivolous constitu-
tional argument. Further, we note that Mr. Geri waived
the argument because he does not appear to have raised
the argument before the Board or the Veterans Court and
he did not raise it on appeal until his reply brief. See
Monsanto Co. v. Bayer Bioscience N.V., 514 F.3d 1229,
1240 n.16 (Fed. Cir. 2008) (“[A]n issue not raised by an
appellant in its opening brief . . . is waived.”).
GERI v. DVA 6
diction to address Mr. Geri’s appeal “because the appeal
concerns the Veterans Court’s interpretation of its juris-
dictional statute, 38 U.S.C. § 7252(a).” Andre v. Principi,
301 F.3d 1354, 1358 (Fed. Cir. 2002). We review such
legal issues without deference. Id.
We hold that the Veterans Court did not err in inter-
preting its jurisdictional statute in concluding that it
lacked jurisdiction to consider Mr. Geri’s arguments.
Section 7252(a) defines the jurisdiction of the Veterans
Court and provides that the Veterans Court “shall have
exclusive jurisdiction to review decisions of the Board of
Veterans’ Appeals. . . . 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).
This statute makes clear that the Veterans Court’s “juris-
diction is premised on and defined by the Board’s decision
concerning the matter being appealed.” Ledford v. West,
136 F.3d 776, 779 (Fed. Cir. 1998). In other words, “the
jurisdiction of the Veterans Court by statute only reaches
to a ‘decision of the Board.’” Maggitt v. West, 202 F.3d
1370, 1375 (Fed. Cir. 2000). As such, where the veteran
raises claims before the Veterans Court “that ha[ve] never
been presented to or decided by the [Board],” there is “no
Board decision on th[e] claims” within the meaning of
§ 7252(a) and “the Veterans Court lack[s] jurisdiction to
adjudicate them.” Andre, 301 F.3d at 1360-61; see
Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir.
2005); Maggitt, 202 F.3d at 1376-77.
Here, the Veterans Court correctly interpreted its ju-
risdictional statute in holding that Mr. Geri’s arguments
were outside its jurisdiction because they involved claims
that he did not present to the Board and were not decided
in the Board’s decision. Specifically, Mr. Geri’s argu-
ments to the Veterans Court involved his claim for bene-
7 GERI v. DVA
fits for a psychological disorder and his alleged informal
claims for TDIU and for benefits for a psychological
disorder. The Board, however, has never issued a deci-
sion involving these claims. Indeed, the two Board deci-
sions on Mr. Geri’s claims involved only his claims for
disability benefits for epilepsy and headaches. First, the
September 1991 Board Decision granted an increase in
Mr. Geri’s disability rating for headaches to 30% but
denied an increase in his disability rating for epilepsy.
Second, in his appeal to the Board that resulted in the
August 2007 Board Decision, Mr. Geri challenged the
September 1991 Board Decision and the 1986 RO Disabil-
ity Ratings Reduction, both of which exclusively involved
his claims for disability benefits for epilepsy and head-
aches. In the 1986 RO Disability Ratings Reduction, the
RO reduced Mr. Geri’s disability ratings for epilepsy and
headaches to 10% for each disability. When Mr. Geri
appealed these reductions to the Board, the Board issued
the September 1991 Board Decision, wherein the Board
maintained his disability rating for epilepsy at 10% but
increased his disability rating for headaches to 30%. The
Board certified the issues on appeal as whether Mr. Geri
was entitled to an increased disability rating for epilepsy
and headaches, and Mr. Geri’s claims for disability bene-
fits for epilepsy and headaches are the only claims adjudi-
cated in the August 2007 Board Decision.
Because the only claims raised to and decided by the
Board were Mr. Geri’s claims for disability benefits for
epilepsy and headaches, there is no Board decision within
the meaning of 38 U.S.C. § 7252(a) regarding Mr. Geri’s
alleged informal claims or his claim for benefits for a
psychological disorder. 2 Thus, the Veterans Court cor-
2 In a footnote in both his opening and reply brief,
Mr. Geri argues that this case should be stayed because it
GERI v. DVA 8
rectly interpreted its jurisdictional statute in concluding
that it lacked jurisdiction to consider Mr. Geri’s argu-
ments regarding his alleged informal claims and claim for
benefits for a psychological disorder.
COSTS
Each party shall bear its own costs.
AFFIRMED
may be affected by the outcome of Henderson v. Shinseki,
which is currently pending before the Supreme Court.
Appellant’s Br. 11 n.1; Appellant’s Reply Br. 3 n.2. Hen-
derson, however, involves the applicability of equitable
tolling to 38 U.S.C. § 7266(a), which governs the time
limit for filing a notice of appeal with the Veterans Court.
589 F.3d 1201 (Fed. Cir. 2009). This issue is entirely
distinct from that presented in this case involving the
Veterans Court’s lack of jurisdiction, pursuant to 38
U.S.C. § 7252(a), over claims not presented to or decided
by the Board. Accordingly, there is no reason to stay this
case pending the Supreme Court’s decision in Henderson.