Fredrick B. Norfleet v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FREDRICK B. NORFLEET,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2260
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-6038, Judge Joseph L. Falvey
Jr.
______________________
Decided: March 8, 2022
______________________
F REDRICK N ORFLEET , Memphis, TN, pro se.
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON , T ARA K. HOGAN, P ATRICIA M.
MCCARTHY ; AMANDA BLACKMON, BRIAN D. G RIFFIN, Y. K EN
L EE , Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
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NORFLEET v. MCDONOUGH 2
______________________
Before L OURIE, D YK, and REYNA, Circuit Judges.
P ER CURIAM .
Fredrick B. Norfleet appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) that set aside and remanded part of a
Board of Veterans’ Appeals (“the Board”) decision that de-
nied service connection for sleep apnea and dismissed the
remainder of the appeal. Norfleet v. McDonough, No. 20-
6038, 2021 WL 3185607 (Vet. App. July 28, 2021) (“Deci-
sion”). For the reasons detailed below, we dismiss Nor-
fleet’s appeal for lack of jurisdiction.
BACKGROUND
Norfleet served on active duty from February 1991 to
October 1994. In November 2012, a Department of Veter-
ans Affairs (“VA”) regional office (“RO”) denied Norfleet’s
claims for service connection for sleep apnea and a head-
ache condition. In January 2014, the RO issued a State-
ment of the Case, which continued to deny service
connection for sleep apnea and the headache condition. In
April 2015, the RO issued a Supplemental Statement of the
Case (“SSOC”), which continued to deny Norfleet’s claims.
The RO also adjudicated a claim for total disability due to
individual unemployability (“TDIU”) based on service-con-
nected disability. In April 2020, the RO issued another
SSOC, continuing to deny the claims for service connection
for sleep apnea, headaches, and TDIU. Norfleet appealed
these holdings to the Board.
The Board granted service connection for Norfleet’s
headache disability but denied service connection for his
sleep apnea claim. The Board found that a decision on Nor-
fleet’s TDIU claim would be premature because it was in-
extricably intertwined with Norfleet’s claim that he was
unemployable in other pending appeals relating to service-
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NORFLEET v. MCDONOUGH 3
connected pseudofolliculitis barbae and depressive disor-
der. The Board remanded the TDIU issue for readjudica-
tion, subject to action by the RO on the appealed disability
rating claims and the assignment of an initial disability
rating for the headache disability. Norfleet appealed the
Board’s decision to the Veterans Court.
The Veterans Court determined that the VA failed to
satisfy its duty to assist with respect to the sleep apnea
claim. The court found that the medical examination re-
port on which the Board relied failed to address Norfleet’s
multiple statements regarding his in-service symptoms
and did not provide rationale in support of the examiner’s
conclusion that Norfleet’s sleep apnea was not related to
service. The court reversed the Board’s decision and re-
manded the sleep apnea claim for the Board to obtain an
adequate medical examination. The court held that it
lacked jurisdiction to address the remaining issues con-
cerning the appropriate disability rating and effective date
for Norfleet’s sleep apnea because these downstream issues
had not been the subject of a final Board decision. The
court also held that it lacked jurisdiction to review Nor-
fleet’s arguments concerning the appropriate disability rat-
ing for his headache disability because the appropriate
compensation must first be decided by the RO.
Turning to the TDIU claim, the Veterans Court noted
that the Board remanded the claim because it was inextri-
cably intertwined with a pending appeal of the disability
ratings assigned to other service-connected disabilities.
Because these pending rating decisions would be relevant
to a decision on the TDIU claim, the court agreed with the
Board that a decision on the TDIU claim prior to resolution
of the rating decisions would be premature. In the absence
of a final Board decision on the TDIU claim, the court found
that it lacked jurisdiction to hear this claim.
The Veterans Court also rejected Norfleet’s remaining
arguments that the Secretary erred in failing to provide
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NORFLEET v. MCDONOUGH 4
him with paper copies of his record. The Secretary gave
Norfleet a disc copy. The court concluded that Norfleet had
not demonstrated that providing an electronic record re-
sulted in prejudicial error. The court also noted that Nor-
fleet could obtain a paper copy by submitting a written
request. Lastly, the court rejected Norfleet’s request to in-
clude his informal reply brief as part of the record of pro-
ceedings. The court explained that review must be based
on the record of proceedings before the Board, and because
Norfleet’s informal reply brief was not part of the record
before the Board, that document could not be included in
the record of proceedings.
In August 2021, Norfleet filed a motion for reconsider-
ation that the Veterans Court subsequently denied. Nor-
fleet then filed the present notice of appeal to this court.
We have jurisdiction under 38 U.S.C. § 7292.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review the validity of a decision
with respect to a rule of law or interpretation of a statute
or regulation that was relied upon by the Veterans Court
in making its decision. 38 U.S.C. § 7292(a). However, ex-
cept with respect to constitutional issues, we may not re-
view challenges to factual determinations or challenges to
the application of a law or regulation to the facts of a case.
Id. § 7292(d)(2).
We generally decline to review decisions of the Veter-
ans Court that are not sufficiently final, regardless
whether a legal issue is presented. See Williams v. Prin-
cipi, 275 F.3d 1361, 1363 (Fed. Cir. 2002). This includes
review of Veterans Court remand orders, “because they are
not final judgments.” Id. at 1364 (internal quotation marks
omitted). The finality requirement “serves the important
purpose of promoting efficient judicial administration” and
“serves to avoid unnecessary piecemeal appellate review
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NORFLEET v. MCDONOUGH 5
without precluding later appellate review of the legal is-
sue.” Id.
A limited exception to the “strict rule of finality” exists
when a decision remanding a case to an administrative
agency renders an important legal question effectively un-
reviewable later in the litigation. Id. More specifically,
this exception applies only if the following three conditions
are satisfied:
(1) there must have been a clear and final decision
of a legal issue that (a) is separate from the remand
proceedings, (b) will directly govern the remand
proceedings or, (c) if reversed by this court, would
render the remand proceedings unnecessary; (2)
the resolution of the legal issues must adversely af-
fect the party seeking review; and, (3) there must
be a substantial risk that the decision would not
survive a remand, i.e., that the remand proceeding
may moot the issue.
Id. (footnotes omitted).
Norfleet argues that the Veterans Court’s decision
should be reversed or set aside and he should be awarded
a total and permanent disability rating with an effective
date of October 25, 1994. To support his argument, Nor-
fleet describes his sleep apnea symptomology.
The government responds that we lack jurisdiction to
review the Veterans Court’s application of 38 U.S.C.
§ 5103A, an uncontested legal standard, to the facts of Nor-
fleet’s case. The government adds that the Veterans
Court’s decision remanding Norfleet’s sleep apnea claim to
the Board for additional adjudication is non-final and Nor-
fleet has not asserted that an exception to the rule of final-
ity applies.
We agree with the government. As previously ex-
plained, we cannot review challenges to the application of
a law or regulation to the facts of a case. § 7292(d)(2).
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NORFLEET v. MCDONOUGH 6
Here, the Veterans Court applied a law to the facts of a
case. Specifically, the court remanded Norfleet’s sleep ap-
nea claim because the Board erroneously determined that
the VA had satisfied its obligation pursuant to § 5103A to
conduct an adequate medical examination. We lack juris-
diction to review the Veterans Court’s application of this
legal standard to the facts of Norfleet’s case.
In addition, the Veterans Court’s decision remanding
the sleep apnea claim to the Board is non-final and no ex-
ceptions to the rule of finality apply here. First, there has
been no “clear and final decision” on a legal issue—the Vet-
erans Court merely remanded the sleep apnea claim for
further development and readjudication. Second, Norfleet
has not shown that he was adversely affected by the Veter-
ans Court’s decision. Last, Norfleet has not shown that any
issue he seeks to raise would escape review following re-
mand.
Furthermore, as the Veterans Court explained, the ap-
propriate compensation level for Norfleet’s sleep apnea is
not ripe for judicial review because service connection has
not yet been established for this disability. See Decision at
*2 (“But the Court lacks jurisdiction to address these argu-
ments because our authority to review Board determina-
tions extends only to final Board decisions . . . and the
Board has not yet adjudicated those downstream issues.”).
Because we lack jurisdiction to review whether § 5103A
was improperly applied to the facts of Norfleet’s case and
because the Veterans Court’s decision remanding Nor-
fleet’s sleep apnea claim is non-final, we dismiss Norfleet’s
appeal.
CONCLUSION
We have considered Norfleet’s remaining arguments,
but we find them unpersuasive. For the foregoing reasons,
we dismiss his appeal.
DISMISSED
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NORFLEET v. MCDONOUGH 7
COSTS
No costs.
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