Deshner v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: March 9, 2023
• Docket: 21-2341
• Status: Unpublished

Opinion

Case: 21-2341 Document: 34 Page: 1 Filed: 03/09/2023

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

CHARLES E. DESHNER, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2021-2341 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 20-2156, Judge Amanda L. Mere- dith. ______________________

Before DYK, REYNA, and STARK, Circuit Judges.

PER CURIAM. ORDER Appellant appeals the determination by the United States Court of Appeals for Veterans Claims (“Veterans Court”) that he was not eligible for total disability individ- ual unemployability (“TDIU”) status before 2016 based on appellant’s theory that two of his disabilities were combin- able in 2015 because they resulted from a “common etiol- ogy.” 38 C.F.R. § 4.16(a). The Veterans Court concluded Case: 21-2341 Document: 34 Page: 2 Filed: 03/09/2023

that this theory had not been raised before the Board of Veterans’ Appeals (“Board”). Because of the remand in this case to the Board, the Board has before it the question of when appellant became entitled to schedular TDIU as a re- sult of his 70% post-traumatic stress disorder disability. Appellant’s theories (1) in this appeal that his eligibility date for schedular TDIU precedes 2016 because of a combi- nation of two of his disabilities and (2) in the remand pro- ceeding that he is owed TDIU before 2016 because of his PTSD alone are part of a single claim. We “generally decline[] to review non-final orders of the Veterans Court.” Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002) (citation omitted). Under Williams, all the- ories to entitlement stemming from a single claim must be finally rejected by the Veterans Court to be fit for our re- view, with narrow exceptions not applicable here. Accordingly, IT IS ORDERED THAT: The appeal is dismissed. Each party shall bear its own costs.

FOR THE COURT

March 9, 2023 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court