Seth A. Hooper v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SETH A. HOOPER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1262
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-4351, Chief Judge Margaret C.
Bartley, Judge Coral Wong Pietsch, Judge William S.
Greenberg.
______________________
Decided: May 9, 2024
______________________
S ETH HOOPER, Ocean, NJ, pro se.
MILES J ARRAD W RIGHT , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, MARTIN F. HOCKEY , J R., P ATRICIA M.
MCCARTHY ; CARLING K AY BENNETT , BRIAN D. G RIFFIN,
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HOOPER v. MCDONOUGH 2
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before D YK, CLEVENGER , and STOLL , Circuit Judges.
P ER CURIAM .
Seth Hooper appeals from a decision of the Court of Ap-
peals for Veterans Claims (“Veterans Court”), which re-
manded in part and dismissed in part. The Veterans Court
remanded one claim to the Board for Veterans’ Appeals
(“Board”) and dismissed the other two claims for lack of ju-
risdiction because there was no final decision by the Board.
We dismiss.
BACKGROUND
Mr. Hooper served on active duty during a variety of
intervals from 2000 to 2011. Mr. Hooper’s appeal here con-
cerns three claims: a claim for an earlier effective date for
a traumatic brain injury (“TBI”), a claim for an earlier ef-
fective date for his 100% disability rating, and a claim for
dental disability.
As to the effective date for the TBI, the Veterans Court
found “that the Board failed to provide adequate reasons or
bases to support its decision.” Hooper v. McDonough, No.
22-4351, 2023 WL 5436388, at *4 (Vet. App. Aug. 24,
2023).1 Because the Board’s decision lacked “sufficient
analysis of Mr. Hooper’s arguments, including factual find-
ings concerning the nature of his original claim and a dis-
cussion of how the Board applied the law,” the Veterans
Court remanded the TBI claim. Id. at *5. The Veterans
Court pointed out that it lacked jurisdiction over his dental
claim because the Board had remanded, not denied, his
1 S.A. refers to the supplemental appendix attached
to Appellee’s Informal Brief, ECF No. 6.
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HOOPER v. MCDONOUGH 3
dental claim so it was not a final decision under 38 U.S.C.
§ 7252. As to Mr. Hooper’s 100% disability rating claim,
the Veterans Court again found that, because the claim
was “not before the Board in the decision on appeal, it is
also not before the Court at this time” and dismissed the
claim. Id.
This appeal followed.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. We have
exclusive jurisdiction to “review and decide any challenge
to the validity of any statute or regulation or any interpre-
tation thereof” and to “interpret constitutional and statu-
tory provisions.” Id. § 7292(c). We may not, however,
“[e]xcept to the extent that an appeal under this chapter
presents a constitutional issue,” review “a challenge to a
factual determination,” nor a “challenge to a law or regula-
tion as applied to the facts of a particular case.” Id.
§ 7292(d)(2).
I. Earlier Effective Date for Traumatic Brain Injury
Mr. Hooper appeals a remand order from the Veterans
Court regarding the effective date for his TBI claim. The
remand order explained that the Board failed to provide
adequate reasons or bases to support its decision. Hooper,
2023 WL 5436388, at *4. “As a general matter, this court
reviews only final decisions of [the Veterans Court].”
Chavez v. McDonough, ___ F.4th ___, No. 2022-1942, 2024
WL 1685140, at *2 (Fed. Cir. Apr. 19, 2024); see also Duch-
esneau v. Shinseki, 679 F.3d 1349, 1352 (Fed. Cir. 2012);
Donnellan v. Shinseki, 676 F.3d 1089, 1091 (Fed. Cir.
2012).
Our cases establish that we will depart from the
strict rule of finality when the [Veterans Court] has
remanded for further proceedings only if three con-
ditions are satisfied: (1) there must have been a
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HOOPER v. MCDONOUGH 4
clear and final decision of a legal issue that (a) is
separate from the remand proceedings, (b) will di-
rectly govern the remand proceedings or, (c) if re-
versed by this court, would render the remand
proceedings unnecessary; (2) the resolution of the
legal issues must adversely affect 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.
Williams v. Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002)
(footnotes omitted).
None of these conditions is satisfied here. The Veter-
ans Court remanded for further explanation of the Board’s
decision so that the court could discharge its duty on appel-
late review. The first factor has not been satisfied. There
has been no legal issue decided at all. Second, because
there has been no decision of a legal issue, Mr. Hooper can-
not make a showing that the resolution of a legal issue has
adversely affected him. The third Williams condition has
also not been satisfied.
II. Earlier Effective Date for 100% Disability
The Veterans Court dismissed Mr. Hooper’s claim for
an earlier effective date for lack of jurisdiction. The Veter-
ans Court’s jurisdiction is limited to review of “decisions of
the Board.” 38 U.S.C. § 7252(a). “[W]hen the Board has
not rendered a decision on a particular issue, the [Veterans
Court] has no jurisdiction to consider it under section
7252(a).” Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir.
2000); see also Ledford v. West, 136 F.3d 776, 779 (Fed. Cir.
1998). Because this issue was never raised to the Board,
“the court had no jurisdiction to consider the issue.” Led-
ford, 136 F.3d at 779. Mr. Hooper alleges no plausible error
as to the Veterans Court’s determination that it lacked ju-
risdiction over this issue, and we therefore lack jurisdiction
over his appeal.
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HOOPER v. MCDONOUGH 5
III. Dental Disability
As to Mr. Hooper’s claim regarding his dental disabil-
ity, the Veterans Court held that it lacked jurisdiction over
the claim because the Board had remanded the claim for
further factual development. Because the remand order
“contains no order granting or denying relief,” it is not a
“decision” within the meaning of section 7252(a). Kirkpat-
rick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2005). Mr.
Hooper argues that the Veterans Court “arbitrarily re-
fuse[d] to exercise jurisdiction,” Appellant’s Informal Op.
Br. 2, but he offers no coherent legal argument as to why
this is so. We therefore lack jurisdiction.
On appeal, Mr. Hooper makes the argument that he
“has met the evidentiary standard for award of Dental
Class IIa.” Id. at 10. To the extent that Mr. Hooper asks
us to make a factual determination about the evidence in
his case, we are without jurisdiction to do so. See 38 U.S.C.
§ 7292(d)(2).
We have considered Mr. Hooper’s remaining argu-
ments, including the argument that he is being denied due
process by the Veterans Court, and find them unpersua-
sive.
DISMISSED
COSTS
No costs.
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