Richard Jasmin v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD JASMIN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2359
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-698, Chief Judge Margaret C.
Bartley.
______________________
Decided: January 14, 2025
______________________
RICHARD JASMIN, Eldridge, MO, pro se.
STEPHANIE FLEMING, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also
represented by BRIAN M. BOYNTON, WILLIAM JAMES
GRIMALDI, PATRICIA M. MCCARTHY.
______________________
Case: 23-2359 Document: 31 Page: 1 Filed: 01/14/2025

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JASMIN v. MCDONOUGH 2
Before REYNA, TARANTO, and STARK, Circuit Judges.
PER CURIAM.
Richard Jasmin, proceeding pro se, appeals from an
order of the Court of Appeals for Veterans Claims
(“Veterans Court”) dismissing his appeal for lack of
jurisdiction. We affirm.
I
Mr. Jasmin served in the United States Navy from
2003 to 2008. Subsequent to his active service, Mr. Jasmin
filed several claims for various types of benefits. The
relevant claims and decisions of the Secretary of Veterans
Affairs (“Secretary”) are noted below.
Most pertinent to this appeal is Mr. Jasmin’s filing of a
Notice of Appeal (“Notice”) in the Veterans Court on
February 6, 2023. See S. App’x 1.1 In his Notice, Mr.
Jasmin purported to be appealing from a January 10, 2023
decision of the Board of Veterans Appeals (“Board”). Id.
The Secretary moved to dismiss Mr. Jasmin’s appeal,
contending that no January 10, 2023 Board decision exists
in relation to Mr. Jasmin. To the contrary, according to the
Secretary, the most recent Board decision concerning Mr.
Jasmin was issued in October 2022, when the Board
addressed claims based on gastroesophageal reflux disease
(“GERD”) and other gastrointestinal disabilities, including
irritable colon disorder. The Secretary reported that Mr.
Jasmin’s record also contained a January 10, 2023 letter
from a Department of Veterans Affairs Regional Office
(“RO”), enclosing a January 9, 2023 RO decision reducing
Mr. Jasmin’s disability rating for psychotic disorder and,
consequently, eliminating his eligibility for Total Disability
based on Individual Unemployability (“TDIU”).
1 “S. App’x.” refers to the supplemental appendix filed
with the Secretary’s brief.
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JASMIN v. MCDONOUGH 3
The Veterans Court ordered Mr. Jasmin to show cause
as to why his appeal should not be dismissed for lack of
jurisdiction, instructing him to provide a copy of the
decision he was intending to appeal. Mr. Jasmin’s response
did not include a copy of any decision, nor did it identify
any decision from the Board issued on January 10, 2023.
As a result, the Veterans Court determined that Mr.
Jasmin “fail[ed] to identify any final adverse Board
decision that would be the subject of [its] jurisdiction,”
because the only Board decision issued on his claims, the
October 2022 decision, was neither adverse nor final. S.
App’x 3.
Mr. Jasmin timely appealed.
II
Before us, Mr. Jasmin makes clear that the issue he
wishes to appeal is the deprivation of his entitlement to
TDIU, which stems from the RO’s decision to reduce his
rating for psychotic disorder. The problem for Mr. Jasmin
is that these determinations were made by the RO, not by
the Board, and the Veterans Court only has jurisdiction to
review decisions of the Board. See 38 U.S.C. § 7252(a)
(“[The Veterans Court] shall have exclusive jurisdiction to
review decisions of the Board of Veterans’ Appeals.”).
A person affected by a decision of the Secretary,
including a decision of an RO, may appeal that decision to
the Board. See 38 C.F.R. § 20.104(a). Before such a person
may take an appeal to the Veterans Court, however, he
must first “present a request for a benefit to the Board,
then receive a decision on that request.” Maggitt v. West,
202 F.3d 1370, 1376 (Fed. Cir. 2000). Mr. Jasmin did not
do so. Instead, he attempted to appeal the January 2023
decision of the RO, which the Veterans Court lacked
jurisdiction to review without an intervening appeal of the
RO’s decision to the Board. See 38 U.S.C. § 7266(a); see also
May v. McDonough, 61 F.4th 963, 965-66 (Fed. Cir. 2023)
(explaining that final decision by Board is generally
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JASMIN v. MCDONOUGH 4
required to appeal to Veterans Court). Thus, the Veterans
Court correctly dismissed Mr. Jasmin’s appeal.
To the extent Mr. Jasmin wishes to appeal the RO’s
January 2023 determinations, he must first present them
to the Board, which he has not yet done. If, alternatively,
Mr. Jasmin seeks review of the Board’s October 2022
decision, the Veterans Court lacks jurisdiction over that
decision because it is neither final (since it ordered a
remand for further consideration of Mr. Jasmin’s claim for
irritable colon disorder) nor adverse (as it granted Mr.
Jasmin’s service connection claim for GERD).
III
We have considered Mr. Jasmin’s remaining arguments
and find them unpersuasive.2 In particular, we can well
understand Mr. Jasmin’s frustration at having his 70%
disability rating for a psychotic disorder reduced to 10%,
and then losing his eligibility for TDIU, based (at least in
part) on his failure to appear for a recommended
evaluation. But our sympathy cannot alter the jurisdiction
of the Veterans Court. If Mr. Jasmin wishes to invoke the
jurisdiction of the Veterans Court, he must first obtain a
final and adverse decision from the Board. As he did not
do so here, the Veterans Court did not err in dismissing his
appeal.
For the reasons stated above, we affirm the order of the
Veterans Court dismissing Mr. Jasmin’s appeal.
AFFIRMED
COSTS
No costs.
2 As the Secretary notes, “Mr. Jasmin does not make
any specific allegations of fraud but, to the extent he
believes it is occurring, he may report these allegations to
the Office of the Inspector General.” Gov’t Br. at 9 n.2.
Case: 23-2359 Document: 31 Page: 4 Filed: 01/14/2025

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