Keel v. Wilkie

Case: 20-1733 Document: 24 Page: 1 Filed: 10/07/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

DAVID O. KEEL, Claimant-Appellant

v.

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

2020-1733 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-3786, Judge Joseph L. Toth. ______________________

Decided: October 7, 2020 ______________________

DAVID O. KEEL, Hualapai, AZ, pro se.

JOSHUA E. KURLAND, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent-appellee. Also represented by JEFFREY B. CLARK, MARTIN F. HOCKEY, JR., ROBERT EDWARD KIRSCHMAN, JR. ______________________

Before DYK, MOORE, and TARANTO, Circuit Judges. Case: 20-1733 Document: 24 Page: 2 Filed: 10/07/2020 2 KEEL v. WILKIE

PER CURIAM. David Keel appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) that dismissed in part and vacated and remanded in part an appeal from the Board of Veterans’ Appeals (“Board”). We affirm the Veterans Court’s dismissal of the appeal from the Board’s remand decision. We dismiss Mr. Keel’s appeal of the Veterans Court’s order vacating and remand- ing for lack of jurisdiction. BACKGROUND Mr. Keel served in the Army from May to December 1980. Since 1981, Mr. Keel has repeatedly sought disabil- ity benefits from the Department of Veterans Affairs (“VA”), and his requests have been repeatedly rejected. In 2011, Mr. Keel filed a claim for benefits, seeking (1) to reopen previously denied claims for service connection for bilateral hip disorder, ischemic heart disease, gas- troesophageal reflux disease (“GERD”), and low back dis- order, and (2) benefits based on various other new conditions. His claims were denied by the VA regional of- fice (“RO”). Mr. Keel appealed to the Board. As part of Mr. Keel’s appeal, he participated in a Board hearing in October 2017, held by video conference. According to Mr. Keel, the tran- script he received of the hearing was unreadable, omitted testimony, and “ran together” text. He also claimed that, at the hearing, his representative from Disabled American Veterans, a veterans service organization, improperly tes- tified against him. App’x 3. 1 In a July 2018 order, the Board denied Mr. Keel’s re- quest to reopen service connection claims for a bilateral hip

Case: 20-1733 Document: 24 Page: 3 Filed: 10/07/2020 KEEL v. WILKIE 3

disorder, ischemic heart disease, and GERD. The Board granted Mr. Keel’s request to reopen a claim for service connection for a low back disorder and remanded that claim and the three other new claims for further record de- velopment. Mr. Keel appealed the Board’s order to the Veterans Court. First, Mr. Keel raised perceived errors with the transcript of the October 2017 Board hearing. The Secre- tary conceded error in that there was no evidence that Mr. Keel had been advised of his right to review the hear- ing transcript and seek correction of any perceived errors, and the Secretary requested the Veterans Court to remand so that Mr. Keel could seek correction of any transcript er- rors from the Board. The Veterans Court accepted the Sec- retary’s concession of error, vacated the Board’s decision, and remanded “to allow Mr. Keel to submit a request for correction of any perceived errors in the transcript of the October 2017 Board hearing” in accordance with the Board’s procedural rules. App’x 4. Second, Mr. Keel argued that the conduct of a repre- sentative from Disabled American Veterans at the October 2017 Board hearing had been improper. “Mr. Keel as- sert[ed] that the representative ‘testified against’ him and otherwise took actions on his behalf with which he disa- greed.” Id. (internal citation and punctuation omitted); see also Reply Br. 4. The Veterans Court rejected his argu- ment, finding that, “[e]ven assuming for present purposes that Mr. Keel’s assertions are accurate, a representative from a veterans service organization is not a VA employee over whom the Secretary has authority or a legal practi- tioner over whom the Court has oversight.” App’x 4–5. Third, Mr. Keel appealed the portion of the Board’s or- der that remanded the low back service-connection claim and three other issues to the RO. The Veterans Court found that it did not have jurisdiction over the Board’s re- mand because it was not a final Board decision.

Case: 20-1733 Document: 24 Page: 4 Filed: 10/07/2020 4 KEEL v. WILKIE

Mr. Keel appeals. DISCUSSION Mr. Keel on appeal seeks review of the Veterans Court’s remand order and the Board’s remand order. I We first conclude that we have no jurisdiction to review the Veterans Court’s decision remanding claims to the Board. “[W]e generally do not review the Veterans Court’s remand orders because they are not final decisions.” Ebel v. Shinseki, 673 F.3d 1337, 1340 (Fed. Cir. 2012). “Such a finality requirement is based on prudential considera- tions.” Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002). We will depart from this strict rule of finality when three conditions (“the Williams conditions”) are met: (1) [T]here must have been a clear and final deci- sion of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the re- mand proceedings or, (c) if reversed by this court, would render the remand proceedings unneces- sary; (2) the resolution of the legal issues must ad- versely affect the party seeking review; and, (3) there must be a substantial risk that the deci- sion would not survive a remand, i.e., that the re- mand proceeding may moot the issue. Id. at 1364 (footnotes omitted). The Veterans Court’s remand order regarding the tran- script does not meet these conditions. There has been no showing that any legal ruling would be mooted by the re- mand. Because Mr. Keel’s appeal of the Veterans Court’s order to remand does not meet the Williams conditions, we dismiss it for lack of jurisdiction.

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II Mr. Keel also appeals the Veterans Court’s rejection of his complaints regarding the representative from Disabled Veterans of America’s conduct during the October 2017 board hearing. That issue concerns the claims that have been remanded to the Board and as to which there is no final decision. While we are uncertain that the asserted conduct of the representative would not be proper grounds for an appeal to the Veterans Court, this issue can be raised again before the Veterans Court on appeal of a new deci- sion by the Board as to those claims and then, if necessary, to this court. III Finally, we affirm the Veterans Court’s judgment that it lacked jurisdiction over the low back service-connection claim and other issues that the Board remanded to the RO. Although we lack jurisdiction to review the Veterans Court’s remand order regarding the hearing transcript, that does not deprive us of jurisdiction to consider other claims on appeal that are separate from the remanded claims. “This court has consistently recognized that the various claims of a veteran’s overall ‘case’ may be treated as distinct for jurisdictional purposes.” Elkins v. Gober, 229 F.3d 1369, 1374 (Fed. Cir. 2000). Here, the claims for low back service connection and the three other issues re- manded by the Board to the RO are distinct from the claims for service connection for bilateral hip disorder, ischemic heart disease, and GERD, which the Veterans Court re- manded to the Board in connection with the hearing tran- script. We review the Veterans Court’s determination of its own jurisdiction de novo. Maggitt v. West, 202 F.3d 1370, 1374 (Fed. Cir. 2000). The Veterans Court “shall have ex- clusive jurisdiction to review decisions of the Board of Vet- erans’ Appeals.” 38 U.S.C. § 7252. “Our case law and [38 U.S.C § 7104(d)(3)] define a Board decision as including an

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order granting appropriate relief or denying relief.” Kirk- patrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2005) (Board’s remand “for additional medical examinations” was not a “decision” because it did not grant or deny relief). Here, the Board’s remand for further record development did not grant or deny relief. Thus, the Board’s remand did not constitute a decision within the Veterans Court’s juris- diction. AFFIRMED IN PART, DISMISSED IN PART COSTS No costs.

Footnotes

[1] “App’x” refers to the appendix attached to the gov- ernment’s response brief.