Smithers v. McDonald , 626 F. App'x 1011 ( 2015 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    BOICE F. SMITHERS, JR.,
    Claimant-Appellant
    v.
    ROBERT A. MCDONALD, SECRETARY OF
    VETERANS AFFAIRS,
    Respondent-Appellee
    ______________________
    2015-7079
    ______________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in No. 12-2835, Judge Margaret C.
    Bartley.
    ______________________
    Decided: December 18, 2015
    ______________________
    BOICE F. SMITHERS, Jr., Rome, NY, pro se.
    JANA MOSES, Commercial Litigation Branch, Civil Di-
    vision, United States Department of Justice, Washington,
    DC, for respondent-appellee. Also represented by
    BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
    ELIZABETH M. HOSFORD; JONATHAN ELLIOTT TAYLOR,
    DAVID J. BARRANS, Office of General Counsel, United
    States Department of Veterans Affairs, Washington, DC.
    2                                     SMITHERS   v. MCDONALD
    ______________________
    Before PROST, Chief Judge, CLEVENGER, and MOORE,
    Circuit Judges.
    PER CURIAM.
    Boice F. Smithers, Jr., appeals from the memorandum
    decision of the United States Court of Appeals for Veter-
    ans Claims (“Veterans Court”) affirming the Board of
    Veterans’ Appeals (“Board”) decision denying him enti-
    tlement to a non-service-connected pension. We dismiss
    for lack of jurisdiction.
    BACKGROUND
    Mr. Smithers served on active duty in the U.S. Navy.
    In August 2001, Mr. Smithers filed an application for
    Department of Veterans Affairs (“VA”) disability compen-
    sation for multiple conditions. In 2004, the regional office
    denied all of Mr. Smithers’ claims. Mr. Smithers ap-
    pealed to the Board and the Veterans Court, and on
    remand, testified via videoconference before the Board. In
    July 2012, the Board denied service connection for all of
    Mr. Smithers’ claimed conditions. The Board also denied
    Mr. Smithers’ claim for a non-service-connected pension,
    concluding that he did not serve in the military during a
    “period of war,” as required by 38 U.S.C. § 1521. On
    March 20, 2012, the Veterans Court issued a memoran-
    dum decision setting aside the Board’s denials of service
    connection and remanding for readjudication. The Veter-
    ans Court affirmed the Board’s denial of entitlement to a
    non-service-connected pension. Mr. Smithers appeals.
    DISCUSSION
    Our jurisdiction to review decisions of the Veterans
    Court is limited by statute. We have jurisdiction to
    review a decision of the Veterans Court “with respect to
    the validity of a decision of the Court on a rule of law or of
    any statute or regulation . . . or any interpretation thereof
    SMITHERS   v. MCDONALD                                    3
    . . . that was relied on by the [Veterans Court] in making
    the decision.” 38 U.S.C. § 7292(a) (2012). Except where
    an appeal raises a constitutional issue, we lack jurisdic-
    tion to review a “challenge to a factual determination” or
    a “challenge to a law or regulation as applied to the facts
    of a particular case.” 
    Id. § 7292(d)(2).
        We do not have jurisdiction over Veterans Court re-
    mands because they are not final judgments. Winn v.
    Brown, 
    110 F.3d 56
    , 57 (Fed. Cir. 1997). However, when
    a veteran’s case involves multiple claims and the Veter-
    ans Court remands some of the claims but reaches a final
    judgment on others, we can review the claims which have
    been fully and finally adjudicated. Elkins v. Gober, 
    229 F.3d 1369
    , 1374 (Fed. Cir. 2000). In this case, we may
    review claims finally decided by the Veterans Court that
    are not intertwined with the remanded claims. See Allen
    v. Principi, 
    237 F.3d 1368
    , 1374 (Fed. Cir. 2001).
    Mr. Smithers appeals the Veterans Court’s remand of
    his service-connected disability claims and its affirmance
    of the denial of his claim for a non-service-connected
    pension.     Mr. Smithers’ service-connected disability
    claims have been remanded to the Board, and are there-
    fore not final. We lack jurisdiction to review these claims.
    The Veterans Court has, however, reached a final decision
    on Mr. Smithers’ claim for a non-service-connected pen-
    sion. And because it is not intertwined with the remand-
    ed claims, we are not barred from reviewing this claim on
    the grounds that it is not a final judgment.
    Nonetheless, because Mr. Smithers only challenges
    fact findings or the application of law to fact, we lack
    jurisdiction over the appeal of the Veterans Court’s denial
    of the claim for a non-service-connected pension under
    § 7292. To obtain a non-service-connected pension, the
    veteran must have served during a “period of war.” 38
    U.S.C. § 1521(a); see also 38 C.F.R. § 3.2(f), (i) (2013)
    (defining “period of war” to include the Persian Gulf War,
    4                                    SMITHERS   v. MCDONALD
    from August 2, 1990 until the present). Mr. Smithers
    challenges the Veterans Court’s fact finding that he only
    served until 1989, arguing instead that he served until
    1992. See Appellant’s Inf. Br. 7. Mr. Smithers also ar-
    gues that he should receive a non-service-connected
    pension because he “spent more time overseas than at
    home” during his service. Appellant’s Inf. Br. 3–4. Mr.
    Smithers challenges the Veterans Court’s factual deter-
    minations and its application of the law to the facts of his
    case. We do not have jurisdiction to review these chal-
    lenges.
    CONCLUSION
    For the foregoing reasons, the appeal is dismissed for
    lack of jurisdiction.
    DISMISSED
    COSTS
    No costs.