Shulman v. Collins

• Court: Court of Appeals for the Federal Circuit
• Decided: June 17, 2025
• Docket: 23-2003
• Status: Unpublished

Opinion

Case: 23-2003 Document: 42 Page: 1 Filed: 06/17/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

BENJAMIN PHILLIP SHULMAN, Claimant-Appellant

v.

DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2023-2003 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 21-3301, Judge William S. Green- berg. ______________________

Decided: June 17, 2025 ______________________

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka, KS, argued for claimant-appellant. Also represented by PAUL JENNINGS, TRICIA PATTEN PETEK, MilVet Law Firm PLLC, Lacey, WA.

AUGUSTUS JEFFREY GOLDEN, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., Case: 23-2003 Document: 42 Page: 2 Filed: 06/17/2025

PATRICIA M. MCCARTHY; CHRISTINA LYNN GREGG, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________

Before HUGHES, MAYER, and STOLL, Circuit Judges. STOLL, Circuit Judge. Benjamin Shulman appeals the decision of the United States Court of Appeals for Veterans Claims dismissing his challenge to the Board of Veterans’ Appeals remand order for lack of jurisdiction. Because the Board remanded his case for further development and did not reach a decision on his claims, we affirm the Veterans Court’s dismissal. BACKGROUND Mr. Shulman served on active duty in the United States Army from August 2000 to July 2007. He initially agreed to a three-year enlistment period that ended on Au- gust 24, 2003. During his second enlistment period, Mr. Shulman went absent without leave (AWOL), and he was dishonorably discharged on June 6, 2007. The Regional Office for the Department of Veterans Af- fairs initially determined that Mr. Shulman’s dishonorable discharge barred him from receiving VA benefits for his en- tire enlistment: August 24, 2000, to June 6, 2007. In a No- vember 30, 2020 order, however, the Board separated Mr. Shulman’s two periods of service and found his first pe- riod of service to be honorable. “The Board note[d] that in light of this favorable finding [Mr. Shulman was] entitled to apply for VA benefits including service connection claims based upon his period of honorable service between August 2000 and August 24, 2003.” J.A. 100. The Board then re- manded the matter to the RO to further develop “the issue of [Mr. Shulman’s] mental state at the time of his AWOL,” J.A. 102, which could impact whether or not his discharge Case: 23-2003 Document: 42 Page: 3 Filed: 06/17/2025

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barred his receipt of benefits for his second period of ser- vice. Mr. Shulman subsequently filed a Notice of Disagree- ment with the Board related to an RO decision that issued shortly before the Board’s November 30, 2020 order. Mr. Shulman challenged the RO’s findings on service con- nection and character of service, which had listed his entire period of service as dishonorable. In response to the NOD, the Board issued a May 14, 2021 order again remanding “[t]he issue of whether the character of [Mr. Shulman’s] discharge for the period of service from August 25, 2003, to June 6, 2007, constitutes a bar to receipt of VA benefits,” J.A. 120, and allowing for factual development from its No- vember 30, 2020 order to continue. The May 14, 2021 order was not related to Mr. Shulman’s first period of service, and Mr. Shulman’s claims for benefits stemming from that period are moving forward in separate proceedings before the VA. Mr. Shulman appealed the Board’s May 14, 2021 order to the Veterans Court. The Veterans Court dismissed the appeal for lack of jurisdiction because the Board had “not grant[ed] or den[ied] benefits in the May 14, 2021, decision; in the decision the Board remanded the only matter at is- sue.” J.A. 141. Mr. Shulman appeals. We have jurisdiction under 38 U.S.C. § 7292(c). DISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292. We have ju- risdiction to review “the validity of a decision of the [Veter- ans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter).” Id. § 7292(a). Whether the Veterans Court lacks jurisdiction is an issue we review de novo. Howard v. Gober, 220 F.3d 1341, 1343 Case: 23-2003 Document: 42 Page: 4 Filed: 06/17/2025

(Fed. Cir. 2000) (first citing Ledford v. West, 136 F.3d 776, 778 (Fed. Cir. 1998); and then citing Hensley v. West, 212 F.3d 1255, 1259 (Fed. Cir. 2000)). The Veterans Court has “exclusive jurisdiction to re- view decisions of the Board.” 38 U.S.C. § 7252(a). “A ‘de- cision’ of the Board, for purposes of the Veterans Court’s jurisdiction under section 7252, is the decision with respect to the benefit sought by the veteran: those benefits are ei- ther granted . . . , or they are denied.” Kirkpatrick v. Ni- cholson, 417 F.3d 1361, 1364 (Fed. Cir. 2005) (alteration in original) (quoting Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000)). If the Board has not rendered a decision on a claim, that claim is outside the Veterans Court’s juris- diction. See id. at 1364–66; see also Ledford, 136 F.3d at 779. A remand from the Board that “contains no order granting or denying relief” is not a “decision” by the Board. Kirkpatrick, 417 F.3d at 1364. Here, the only issue the Board addressed in its May 14, 2021 order was whether the character of Mr. Shulman’s discharge constitutes a bar to the receipt of VA benefits for his second period of service. The Board remanded this issue to the VA to further develop facts and did not grant or deny relief on any claim. Without a decision on a claim, the order is outside the Veterans Court’s appellate jurisdiction. Mr. Shulman contends that the Board implicitly de- nied claims related to his first period of service in the May 14, 2021 order. We disagree. His first period of ser- vice was not before the Board in that order—as recognized by the Board, the Veterans Court, and the Secretary in this appeal—and so the associated claims could not have been implicitly denied, as only the issue related to his second pe- riod of service was considered and remanded. See J.A. 120–21; J.A. 140–42; Oral Arg. at 13:37–13:58, 16:34– 17:06, https://oralarguments.cafc.uscourts.gov/default. aspx?fl=23-2003_03032025.mp3. Moreover, Mr. Shulman conceded at oral argument that the Veterans Court cor- rectly dismissed his appeal if only his second period of Case: 23-2003 Document: 42 Page: 5 Filed: 06/17/2025

SHULMAN v. COLLINS 5

service was before the Board in the May 14, 2021 order. Oral Arg. at 8:40–9:22. CONCLUSION We have considered Mr. Shulman’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm the Veterans Court’s decision dismissing Mr. Shulman’s appeal for lack of jurisdiction. AFFIRMED COSTS No costs.