Mark W. Breeden v. Anthony J. Principi

17 Vet. App. 475, 2004 U.S. Vet. App. LEXIS 127, 2004 WL 491039
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 15, 2004
Docket01-2095
StatusPublished
Cited by78 cases

This text of 17 Vet. App. 475 (Mark W. Breeden v. Anthony J. Principi) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mark W. Breeden v. Anthony J. Principi, 17 Vet. App. 475, 2004 U.S. Vet. App. LEXIS 127, 2004 WL 491039 (Cal. 2004).

Opinions

ORDER

PER CURIAM:

On December 14, 2001, the veteran filed a Notice of Appeal (NOA) as to an August 27, 2001, Board of Veterans’ Appeals (Board or BVA) remand of his claim for service connection for post-traumatic stress disorder (PTSD). The Secretary-moves to dismiss the appeal for lack of jurisdiction on the ground that the August 2001 Board remand is not a final decision as to any matter. We will grant the motion and dismiss for lack of jurisdiction.

I.

The veteran served on active duty from December 1968 to March 1970, including service in Vietnam. On July 5, 2000, the Board issued a decision that, inter alia, denied the veteran entitlement to service connection for PTSD. Mark W. Breeden, BVA 93-05991 (July 5, 2000). In its decision, the Board found that the veteran had not engaged in combat for purposes of applying the reduced evidentiary burden afforded by 38 U.S.C. § 1154(b) (allowing veterans who engaged in combat to establish service connection through “satisfactory lay or other evidence”), and that his diagnosis of PTSD had been based on unverified stressors. Id. at 3, 10-15. The veteran appealed the July 2000 Board decision, and on January 4, 2001, the parties filed a joint motion for remand. The joint motion called for the veteran to be reexamined by a VA psychiatrist and for any evidence of in-service stressors to be made available to the examiner. The motion also stated that the Board was required to reconsider whether the veteran had engaged in combat.

On January 16, 2001, the Court, by order of the Clerk of the Court, granted the parties’ motion, vacated in part the July 2000 Board decision, and remanded the appellant’s claim for service connection for PTSD. Breeden v. Gober, U.S. Vet.App. No. 00-1700 (Jan. 16, 2001). On August 27, 2001, the Board remanded the case to a VA regional office (RO). Mark W. Breeden, BVA 93-05991 (Aug. 27, 2001). In its remand, the Board first noted that a remand was required to comply with the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat. 2096. See Breeden, BVA 93-05991, at 4. The Board then instructed that on remand the veteran should be examined by a VA psychiatrist to determine whether he suffers from PTSD. Id. at 5. The Board also provided a limited list of stressors to be considered as the basis for a diagnosis of PTSD. Id. The remand instructions did not address the issue of whether the veteran had engaged in combat. See id.

Although it does not bear upon the issue presently before the Court, in the interest of completeness, we note that, on November 12, 2003, the appellant informed the Court that while this appeal has been pending the RO continued to develop the appellant’s PTSD claim and issued a decision. On August 11, 2003, the Board again remanded the claim after determining that the RO had failed to provide a psychiatric examination that complied with the August 2001 remand instructions.

II.

On December 14, 2001, the appellant filed an NOA, seeking review of “those portions of the [Board] decision dated August 27, 2001, which denied the veteran’s PTSD claim except insofar as PTSD is related only to specific stressors deemed verified by the Board, denied that the vet[477]*477eran participated in combat, and denied the veteran’s claim that other stressors were or could be verified.” On January 17, 2002, the Secretary filed a motion to dismiss and to stay proceedings arguing that under 38 U.S.C. §§ 7252(a) and 7266(a) this Court’s jurisdiction is limited to review of final decisions of the Board and that Board remands in general, and this remand in particular, are not final decisions. Secretary’s Motion to Dismiss and to Stay Proceedings (Mot, to Dismiss) at 3-5. On March 6, 2002, the appellant filed a response asserting that the Board’s August 2001 remand constituted a final decision with respect to the issues of combat status and stressors and that those aspects of the remand are final and appeal-able. Appellant’s Response (Resp.) to Mot. to Dismiss at 3-4, 7-8. In the alternative, the appellant argued that the Court should interpret 38 U.S.C. §§ 7252(a) and 7266(a) “to permit it to exercise jurisdiction over [non-final] BVA decisions that alter the evidentiary burdens, that limit the evidence an RO can consider in support of a claim[,] or that contain a misrepresentation of the law.” Appellant’s Resp. to Mot. to Dismiss at 4-7.

On July 9, 2002, the Court ordered that the parties file supplemental responses addressing the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Williams v. Principi, 275 F.3d 1361 (Fed.Cir.2002). In Williams, the Federal Circuit adopted an exception to the requirement of finality with respect to its jurisdiction to review decisions of this Court. In his supplemental response, the Secretary contends that the exception adopted by the Federal Circuit in Williams is not applicable to appeals to this Court. Secretary’s Resp. to Appellant’s Resp. to Mot. to Dismiss at 5-7. In the alternative, the Secretary claims that “the facts of this case do not support an exercise of jurisdiction under Williams.” Id. at 7. In his supplemental response, the appellant maintains that the challenged aspects of the Board’s remand are final and, in the alternative, that the Court should voluntarily adopt the Williams exception and exercise jurisdiction over this appeal based on that exception. See Appellant’s Supplemental (Supp.) Resp. to Mot. to Dismiss at 3-9. The appellant also argues that the Court has jurisdiction to address the Board’s August 2001 remand pursuant to its authority to compel compliance with the January 2001 remand order issued by the Clerk of the Court. See id. at 5.

Oral argument was heard on November 17, 2003.

III.

This Court’s jurisdiction derives exclusively from statutory grants and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). Our jurisdiction is limited to appeals from final decisions of the Board. Section 7252 of title 38 of the U.S.Code, which is entitled “Jurisdiction; finality of decisions,” specifically provides that “[t]he Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the [Board]. 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.” See also 38 U.S.C. § 7266

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17 Vet. App. 475, 2004 U.S. Vet. App. LEXIS 127, 2004 WL 491039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-w-breeden-v-anthony-j-principi-cavc-2004.