Jerome Cohens v. David J. Shulkin, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEROME COHENS,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1195
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1864, Judge Mary J. Schoelen.
______________________
Decided: April 10, 2017
______________________
J EROME COHENS , Miami, FL, pro se.
I SAAC B. ROSENBERG, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, R OBERT E. K IRSCHMAN, J R.,
MARTIN F. H OCKEY ; B RIAN D. G RIFFIN, BRANDON A. J ONAS ,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________

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COHENS v. SHULKIN 2
Before P ROST , Chief Judge, D YK and HUGHES , Circuit
Judges.
P ER CURIAM .
Jerome Cohens seeks review of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
order dismissing his appeal on jurisdictional grounds in
Jerome Cohens v. Robert A. McDonald, Secretary of Veter-
ans Affairs, No. 16-1864 (Vet. App. Aug. 24, 2016). In that
case, the Veterans Court dismissed an appeal from a
decision of the Board of Veterans’ Appeals (“Board”) for
lack of a final decision. Because the Veterans Court
correctly dismissed the appeal, we affirm.
I
Mr. Cohens served on active duty in the U.S. Marine
Corps from December 1978 to February 1979. Following
the conclusion of Mr. Cohens’s service, the Department of
Veterans Affairs Regional Office in St. Petersburg, Flori-
da (“Regional Office”) granted him service connection for
low-back strain and assigned him a non-compensable
disability rating. On April 9, 1998, Mr. Cohens filed a
claim with the Regional Office for an increased disability
rating. In response, the Regional Office increased his
rating from 10% to 60% effective as of that date. Mr.
Cohens appealed the effective date to the Board, but the
Board denied his claim in February 2005.
After that decision, Mr. Cohens filed a series of ap-
peals and motions for reconsideration including an appeal
in which Mr. Cohens argued that the Board committed
clear and unmistakable error (“CUE”) with respect to its

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COHENS v. SHULKIN 3
February 2005 decision. The Board denied his CUE claim,
and the Veterans Court affirmed in October 2009.1
In August 2015, Mr. Cohens filed a pleading with the
Veterans Court that disputed the court’s October 2009
determination. Treating this pleading as a writ of man-
damus, the Veterans Court denied Mr. Cohen relief
because, among other reasons, it determined that the
October 2009 decision was final and that his writ could
not be used as a surrogate for the appeal process. In
February 2016, Mr. Cohens sent a letter to the Board
expressing his desire to seek reconsideration of the Veter-
ans Court’s October 2009 decision. The Board responded,
explaining that the October 2009 decision was final and
that he could either appeal to this court or reopen his
claim at the Regional Office if he had new and material
evidence to present.
In April 2016, Mr. Cohens sent a letter to the Board
asking it “to advance” his claim to the Board’s docket.
Appellee’s App. 36. The Board responded on May 19,
2016, indicating that it no longer had jurisdiction over his
appeal. In response Mr. Cohens noticed his appeal, which
the Board dismissed for lack of jurisdiction because it
found that “no final decision dated May 19, 2016, ha[d]
been issued by the Board.” Id. at 1. After a series of
motions for reconsideration, the Veterans Court entered
judgment in the Secretary’s favor. Mr. Cohens timely
appealed to this court.
II
On appeal, Mr. Cohens asks us to reverse the Veter-
ans Court and “grant [his] claim for Rule 21 [extraordi-
nary relief] immediately.” Appellant’s Br. 2. In support,
he focuses on events relating to the Board’s October 2009
1 We addressed Mr. Cohens’s previous claims in
Cohens v. Shinseki, 549 F. App’x 1004 (Fed. Cir. 2013).

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COHENS v. SHULKIN 4
decision and appears to challenge decisions that the
Veterans Court made (or did not make) in other appeals
he previously litigated in that court. Id. at 1. The govern-
ment argues that the Veterans Court correctly concluded
that the May 19, 2016 letter was not a final decision
within the meaning of the statute. See Appellee’s Br. 11–
12 (arguing that this letter merely explained that the
Board could not advance his claim). The government thus
submits that the Veterans Court lacked jurisdiction to
entertain his appeal. We agree.
Under the relevant statute, the Veterans Court has
jurisdiction to review only “decision[s]” of the Board. 38
U.S.C. § 7252(a). A decision of the Board under this
provision, and for the purposes of Mr. Cohen’s appeal, “is
the decision with respect to the benefit sought by the
veteran.” Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364
(Fed. Cir. 2005) (citation omitted). In other words, a
decision is one in which the Board either grants or denies
veterans their benefits. Id.; see also 38 U.S.C. § 7104(d)(2)
(requiring that each decision adjudicate the merits of the
veteran’s claim).
Here, the Board concluded that the May 19, 2016 let-
ter was not a decision within the meaning of this statute.
Appellee’s App. 1. Although Mr. Cohen appears to dispute
this conclusion, the law does not allow us to disturb these
findings on appeal unless they present a constitutional
issue. See 38 U.S.C. § 7292(d)(2). Thus, because the
Veterans Court did not have jurisdiction, we conclude
that it properly dismissed the appeal. Accordingly, we
affirm the Veterans Court’s dismissal for lack of jurisdic-
tion.
AFFIRMED
COSTS
The parties shall bear their own costs.

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