Betzaida P. Jernigan v. Robert L. Wilkie, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

BETZAIDA P. JERNIGAN,
Claimant-Appellant

v.

ROBERT L. WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2019-2235
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-2918, Judge Amanda L. Mere-
dith.
______________________

Decided: April 10, 2020
______________________

B
ETZAIDA P. JERNIGAN, Lake Helen, FL, pro se.

ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
J
OSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.; Y. KEN LEE, JULIE HONAN, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
Case: 19-2235 Document: 24 Page: 1 Filed: 04/10/2020

JERNIGAN v. WILKIE
2
______________________

Before PROST, Chief Judge, O’MALLEY and TARANTO,
Circuit Judges.
PER CURIAM.
Betzaida P. Jernigan appeals from a decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”) dismissing her appeal of a January 29, 2018
decision of the Board of Veterans’ Appeals (“Board”) for
lack of jurisdiction. Jernigan v. Wilkie, No. 18-2918, 2019
WL 273140 (Vet. App. Jan. 22, 2019). Because the Veter-
ans Court correctly concluded that it lacked jurisdiction
over Jernigan’s appeal, we affirm.
B
ACKGROUND
Jernigan served on active duty in the United States
Navy from April 1989 until May 1995.
In a decision dated January 29, 2018, the Board
granted Jernigan service connection for right shoulder ar-
thritis with tendinitis and right upper extremity cervical
radiculopathy. Resp’t Suppl. App. (“S. App.”) 11–26. In the
“Introduction” section of that decision, the Board explained
relevant procedural history, including that the issue on ap-
peal before it was one of several issues addressed by an ear-
lier, June 2016 Board decision. Id. at 1. Specifically, the
Board indicated that the 2016 decision: (1) remanded Jer-
nigan’s claim for entitlement to service connection for a
right shoulder disorder (the sole issue before the 2018
Board); and (2) explained that Jernigan’s “claims of entitle-
ment to earlier effective dates for grants of service connec-
tion for gastroesophageal disease, a lumbar spine disorder,
and appendectomy scar were no longer in appellate status
as [she] had exhausted her remedies.” Id. at 13.
Jernigan filed a Notice of Appeal to the Veterans Court,
challenging the Board’s January 2018 decision. Jernigan,
2019 WL 273140, at *1. Jernigan later clarified that she
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JERNIGAN v. WILKIE
3
was only appealing the Board’s January 2018 remarks in
its introduction that her earlier effective date claims for
gastroesophageal disease, lumbar spine disorder, and ap-
pendectomy scar were not in appellate status. Id. Because
the Board’s 2018 decision on appeal was favorable to Jer-
nigan, and because Jernigan stated that she only objected
to statements in that decision regarding a prior, now final
claim, the Veterans Court ordered Jernigan to show cause
why her appeal should not be dismissed for lack of jurisdic-
tion. Id.
In response, Jernigan reiterated that she was not chal-
lenging the Board’s January 2018 grant of benefits for right
shoulder arthritis. Instead, she disputed “an unfavorable
conclusion” in the Board’s decision that, according to Jer-
nigan, changed her “appeal status relating to a separate
matter . . . submitted on a valid Notice of Disagreement in
June 2014.” Id.
In a decision dated January 22, 2019, the Veterans
Court dismissed Jernigan’s appeal for lack of jurisdiction.
In doing so, the court explained that the Board’s January
2018 decision was favorable to Jernigan and that the re-
marks in the introduction section of the Board’s decision
did not change the appellate status of her other earlier ef-
fective date claims. Id. The court further explained that
Jernigan’s earlier effective date claims—for gastroesopha-
geal disease, a lumbar spine disorder, and an appendec-
tomy scar—were previously appealed to the Veterans
Court and were denied. Id. at *1 n.2 (citing Jernigan v.
Shinseki, 25 Vet. App. 220 (2012), aff’d 521 F. App’x 931
(Fed. Cir. 2013), cert. denied 572 U.S. 1062 (2014)). Those
earlier claims were not before the Board when it rendered
its 2018 decision and are not before this court on appeal.
Jernigan moved for reconsideration by a panel. S. App.
6. The Veterans Court granted the motion, and the panel
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JERNIGAN v. WILKIE
4
held that the January 2019 single-judge order would re-
main the decision of the court. The court entered final
judgment on April 12, 2019. This appeal followed.
DISCUSSION
Our jurisdiction to review Veterans Court decisions is
limited by statute. Pursuant to 38 U.S.C. § 7292(a), the
court may 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) that was relied on by the [Veterans]
Court in making the decision.” Unless the case presents a
constitutional issue, we “may not review (A) a challenge to
a factual determination, or (B) a challenge to a law or reg-
ulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2). We have recognized, however, that the
“jurisdictional reach of the Veterans Court presents a ques-
tion of law for our plenary review.” Maggitt v. West, 202
F.3d 1370, 1374 (Fed. Cir. 2000).
On appeal, the government argues that we should dis-
miss this appeal for lack of jurisdiction because, although
Jernigan asserts in her informal brief that the Veterans
Court’s decision involved the validity or interpretation of a
statute or regulation, review of the court’s decision makes
clear it did not engage in that type of analysis. Nor did it
decide any constitutional issues.
1
Instead, the Veterans
Court dismissed Jernigan’s appeal for lack of jurisdiction.
By statute, the Veterans Court’s jurisdiction is limited
to review of final Board decisions that are adverse to the
claimant. 38 U.S.C. § 7266(a); Bond v. Derwinksi, 2 Vet.
App. 376, 377 (1992). A claimant therefore must be “ad-

1
Indeed, Jernigan expressly indicates in her infor-
mal brief that the Veterans Court’s decision did not decide
a constitutional issue. Appellant Informal Br. 1, item 3.
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JERNIGAN v. WILKIE
5
versely affected” by a decision of the Board in order to ap-
peal to the Veterans Court. Zevalkink v. Brown, 102 F.3d
1236, 1243 (Fed. Cir. 1996) (noting that the Veterans Court
“considers this a ‘standing’ requirement and that a party
must, therefore, show some actual or threatened injury”).
Accordingly, the Veterans Court lacks jurisdiction over
Board decisions that are favorable to the veteran. Woods
v. Shinseki, 492 F. App’x 112, 114 (Fed. Cir. 2012) (“Be-
cause the Board’s holding reinstated his benefits and was
therefore favorable to [the veteran], the Veterans Court ap-
propriately dismissed his appeal.”).
Here, the Board’s January 2018 decision that Jernigan
appealed to the Veterans Court addressed a single issue:
entitlement to service connection for a right shoulder dis-
order. The Board granted that claim, awarding service
connection for right shoulder arthritis with tendinitis and
right upper extremity cervical radiculopathy.
Before the Veterans Court, Jernigan made clear that
she is not dissatisfied with the Board’s decision in this ap-
peal—only with its recitation of procedural history relating
to other claims that were separately adjudicated in full.
2

Because the Board’s 2018 decision granted Jernigan the
benefits she sought and thus was entirely in her favor,
there was no adverse action she could appeal to the Veter-

2
As the Veterans Court noted, Jernigan’s earlier ef-
fective date claims for gastroesophageal reflux disease, a
lumbar spine disorder, and an appendectomy scar were
considered and denied by the Board in 2010, the Veterans
Court in 2012, and this court in 2013. Jernigan, 2019 WL
273140, at *1, n.2. To the extent Jernigan’s informal brief
seeks to assert clear and unmistakable error relating to
those claims, she cannot do so for the first time on appeal.
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JERNIGAN v. WILKIE
6
ans Court. See 38 U.S.C. § 7266(a). Accordingly, the Vet-
erans Court did not err when it dismissed Jernigan’s ap-
peal for lack of jurisdiction.
CONCLUSION
Because the Veterans Court correctly concluded that it
lacked jurisdiction over Jernigan’s appeal, we affirm.
AFFIRMED
COSTS
No costs.
Case: 19-2235 Document: 24 Page: 6 Filed: 04/10/2020