Jimmie Harvey, Jr. v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JIMMIE HARVEY, JR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1423
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-6927, Judge Amanda L.
Meredith.
______________________
Decided: January 8, 2025
______________________
JIMMIE HARVEY, JR., Auburn, WA, pro se.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also
represented by BRIAN M. BOYNTON, ELIZABETH MARIE
HOSFORD, PATRICIA M. MCCARTHY; MATTHEW ALBANESE,
BRIAN D. GRIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
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______________________
Before MOORE, Chief Judge, STOLL, Circuit Judge, and
GILSTRAP, Chief District Judge.1
PER CURIAM.
Veteran Jimmie Harvey, Jr. appeals the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming in part, vacating in part, and
remanding his action to the Board of Veterans’ Appeals
(“Board”). Because the sole claim Mr. Harvey raises on
appeal was not at issue before the Veterans Court in this
case, we dismiss for lack of jurisdiction.
BACKGROUND
Mr. Harvey served in the United States Army from
May 1974 to March 1975. Mr. Harvey has sought benefits
for various conditions from the United States Department
of Veterans Affairs (“VA”). The instant appeal is from the
Veterans Court’s November 30, 2023 decision. In that
decision, the Veterans Court affirmed the Board’s denial of
entitlement to disability compensation for hypertension,
hepatitis C, a skin condition, a seizure disorder, and a
dental condition, but vacated the Board’s denial of a
compensable rating for right foot plantar warts and
remanded for further proceedings.
Mr. Harvey now appeals, arguing service connection
should be granted for herpes. But Mr. Harvey’s herpes
claim was not part of the Veterans Court’s November 2023
decision now on appeal. Rather, Mr. Harvey’s herpes claim
was at issue in a separate appeal, which the Veterans
1 Honorable Rodney Gilstrap, Chief Judge,
United States District Court for the Eastern District of
Texas, sitting by designation.
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Court remanded in a separate August 2022 decision for
further development.
DISCUSSION
“This court’s jurisdiction to review decisions by the
Veterans Court is limited.” Wanless v. Shinseki, 618 F.3d
1333, 1336 (Fed. Cir. 2010). We have held that 38 U.S.C.
§ 7292 is a jurisdictional bar to our consideration of a legal
issue or argument on appeal absent at least one of two
conditions: (1) the Veterans Court addressed the issue or
argument, or (2) the issue or argument was raised by a
party to the Veterans Court. Belcher v. West, 214 F.3d
1335, 1337 (Fed. Cir. 2000); Smith v. West, 214 F.3d 1331,
1333–34 (Fed. Cir. 2000); Linville v. West, 165 F.3d 1382,
1384–85 (Fed. Cir. 1999). Neither of these conditions
occurred here.
The merits of Mr. Harvey’s herpes claim were not at
issue before the Veterans Court in the November 2023
decision that is now on appeal. Mr. Harvey’s herpes claim
was neither presented to nor addressed by the Veterans
Court in this case, and therefore is not properly before this
court. Because we lack jurisdiction to consider
Mr. Harvey’s herpes claim, we dismiss his current appeal.
Furthermore, even if Mr. Harvey were challenging the
Veterans Court’s separate August 2022 decision
remanding his herpes claim for further adjudication, his
appeal would be premature. As the government notes, the
“claim is presently active with VA in the veterans benefits
process—specifically, the [VA regional office] issued a[]
[Supplemental Statement of the Case] on Mr. Harvey’s
herpes claim on July 24, 2024.” Appellee’s Br. 9 (citing
SAppx1032). “In due course, the herpes claim will
2 “SAppx” refers to the supplemental appendix
accompanying Appellee’s Response Brief, ECF No. 17.
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automatically be returned to the Board,” the Board will
issue a decision, and Mr. Harvey can appeal to the
Veterans Court and then to this court, if necessary. Id.
CONCLUSION
For the foregoing reasons, we dismiss this appeal.
DISMISSED
COSTS
No costs.
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