NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BETTYE J. SMITH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7132
__________________________
Appeal from the United States Court of Appeals for Vet-
erans Claims in Case No. 10-968, Judge Kenneth B.
Kramer.
___________________________
Decided: January 19, 2011
___________________________
BETTYE J. SMITH, Crossett, Arkanasas, pro se.
RENEE GERBER, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, of Washington, DC, for respondent-appellee. With her
on the brief were TONY WEST, Attorney General, JEANNE E.
SMITH v. DVA 2
DAVIDSON, Director, and MARTIN HOCKEY, Assistant Direc-
tor.
__________________________
Before NEWMAN, GAJARSA, AND MOORE, Circuit Judges.
NEWMAN, Circuit Judge.
Ms. Bettye J. Smith appeals the decision of the United
States Court of Appeals for Veterans Claims, dismissing her
appeal of a decision of the Board of Veterans Appeals deny-
ing her request for dependency and indemnity compensation
(“DIC”) and other benefits as daughter of James A. Spencer,
a veteran who died in October 1996. Ms. Smith asserts that
she cared for Spencer in his final years, that she was dis-
abled, and that it was his desire that she be looked after
upon his death.
In 2006, the Regional Office (“RO”) in Little Rock, Ar-
kansas denied her claims. The RO found that Ms. Smith
could not receive accrued benefits because the veteran was
not owed anything by the VA at the time of his death. The
RO also found that Ms. Smith was not eligible for depend-
ency benefits because she was not a surviving spouse of the
veteran; and because she had previously been married, said
marriage terminating entitlement to any award as child of
the veteran; and because her disability began after age 18.
Ms. Smith appealed to the Board of Veterans Appeals.
In June 2009 the Board remanded to the RO, finding that
Ms. Smith had requested a Travel Board hearing, and was
entitled to have such a hearing and to present evidence.
The record does not state that the hearing occurred, and on
March 19, 2010 Ms. Smith appealed the Board’s decision to
the Veterans Court. In her appeal to the Veterans Court,
Ms. Smith presented argument as to her eligibility for the
benefits sought. The Veterans Court held that, because the
3 SMITH v. DVA
Board had remanded the case to the RO, there was not a
final decision of the Board that was ripe for appeal. The
Veterans Court therefore dismissed the appeal for lack of
jurisdiction. Ms. Smith now appeals this dismissal.
DISCUSSION
This court has previously considered whether the
Board’s order to remand a claim to an RO is an appealable
decision under 38 U.S.C. § 7252(a). In Kirkpatrick v.
Nicholson, 417 F.3d 1361, 1362 (Fed. Cir. 2005), the Veter-
ans Court had dismissed the appeal of a Board remand
order on the basis that it was not a final decision. On
appeal, we stated that "[o]ur case law and section 7104(d)(2)
define a Board decision as including an order granting
appropriate relief or denying relief." Id. at 1364. Because
the Board's remand order contained no decision granting or
denying relief, we rejected that the veteran's contention that
the Board's order contained an implicit denial of relief. Id.
at 1364-65. This court held that the Board’s remand order
was not a decision under § 7252(a), and was not appealable.
Id. at 1364. In considering this issue again in May v.
Shinseki, 2010 U.S. App. LEXIS 20685 (Fed. Cir. 2010), this
court explained:
Like the remand order in Kirkpatrick, [the order]
does not grant or deny relief. It merely remands
May's case to the RO for additional factual devel-
opment. [The order] does not reach the merits of
May's claims, and following remand, May retains
the right to pursue appellate review of an adverse
final decision of the Board. Moreover, the Board did
not implicitly deny May's claims by failing to ad-
dress them in the remand order. As we have ex-
plained, if the Board does not render a decision on
SMITH v. DVA 4
an issue, the Veterans Court has no jurisdiction to
consider the issue under § 7252(a).
Id. at *6. Ms. Smith similarly remains entitled to the
hearing that was ordered by the Board on remand, and to
appellate review of any decision resulting from that hearing.
CONCLUSION
The Veterans Court correctly determined that it lacked
jurisdiction to consider Ms. Smith's appeal of the Board's
order remanding her case to the RO. We therefore affirm.
No costs.
AFFIRMED