NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EZEKIEL GAINES,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7126
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2488, Judge William A. Moor-
man.
______________________
Decided: January 12, 2015
______________________
EZEKIEL GAINES, of Decatur, Georgia, pro se.
CHRISTOPHER L. HARLOW, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were JOYCE R. BRANDA,
Acting Assistant Attorney General, ROBERT E.
KIRSCHMAN, Director, and ALLISON KIDD-MILLER, Assis-
tant Director. Of counsel on the brief were YOU KEN LEE,
2 GAINES v. MCDONALD
Deputy Assistant General Counsel, and TRACEY PARKER
WARREN, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before MOORE, WALLACH, and CHEN, Circuit Judges.
PER CURIAM.
Ezekiel Gaines appeals from a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) dismissing his appeal. Gaines v. Gibson, No. 13-
2488, 2014 WL 3451489 (Vet. App. July 16, 2014). For
the reasons set forth below, we affirm.
BACKGROUND
Mr. Gaines served on active duty in the United States
Air Force from June 1970 until February 1974. In 1972,
while working at U-Tapao airfield in Thailand, Mr.
Gaines sustained cervical spinal injuries when he fell
from the wheel well of a B-52 airplane. In 1979, the
Regional Office found service-connection for Mr. Gaines’s
spinal injuries and granted him a twenty percent disabil-
ity rating. Since that time, the Regional Office has peri-
odically increased Mr. Gaines’s disability rating. Most
recently, in 2007, Mr. Gaines was granted a disability
rating of fifty percent.
In 2010, Mr. Gaines challenged this rating and also
commenced new claims for special monthly compensation
(SMC) and a total disability rating based on individual
unemployability (TDIU). The Board of Veterans’ Appeals
(Board) remanded Mr. Gaines’s request for a higher
disability rating to the Regional Office for issuance of a
Supplemental Statement of the case. In addition, the
Board dismissed Mr. Gaines’s SMC and TDIU claims as
abandoned. On appeal, the Veterans Court concluded
that because the Board had remanded Mr. Gaines’s
request for a disability rating in excess of fifty percent,
GAINES v. MCDONALD 3
the Veterans Court lacked jurisdiction to hear the appeal.
The court also noted that nothing in Mr. Gaines’s brief on
appeal could be construed as challenging the Board’s
dismissal of his SMC and TDIU claims. Accordingly, the
Veterans Court dismissed the appeal. The present appeal
followed.
DISCUSSION
Our jurisdiction over claims appealed from the Veter-
ans Court is limited. Under 38 U.S.C. § 7292(a), we may
review only the “validity of a decision of the [Veterans]
Court on a rule of law or any statute or regulation . . . or
any interpretation thereof (other than a determination as
to a factual matter) that was relied on by the [Veterans]
Court in making the decision.” We are not permitted to
review “a challenge to a factual determination” or a
“challenge to a law or regulation as applied to the facts of
a particular case,” unless the appeal presents a constitu-
tional issue. Id. § 7292(d)(2)(A)–(B).
Mr. Gaines disagrees with the Veterans Court’s dis-
missal of his appeal and requests that a decision be made
on his claim. The Veterans Court’s jurisdiction is limited
by 38 U.S.C. § 7252(a) to “decisions” by the Board. But,
as we recognized in Kirkpatrick v. Nicholson, a Board
remand is not a “decision” within the meaning of
§ 7252(a). 417 F.3d 1361, 1365–66 (Fed. Cir. 2005). Here,
because the Board remanded Mr. Gaines’s claim for a
higher disability rating to the Regional Office, the Veter-
ans Court was required by statute, as interpreted by
Kirkpatrick, to dismiss Mr. Gaines’s appeal for lack of
jurisdiction.
Mr. Gaines notes that his appeal began in 2010, and
urges this Court to “make a decision on [his] appeal.”
Informal Br. at 2. However, the statute governing our
jurisdiction, 38 U.S.C. § 7292, does not permit us to
examine Mr. Gaines’s medical records and determine for
ourselves whether he is entitled to a disability rating in
4 GAINES v. MCDONALD
excess of fifty percent. If Mr. Gaines is ultimately dissat-
isfied with the Regional Office’s decision on remand, he
may then again avail himself of the appellate process.
Mr. Gaines also asserts that the Veterans Court’s de-
cision “has done nothing but prolong [his] attempt to
obtain the compensation that [he] believe[s] [is] due.”
Informal Br. at 1. Even if we were to construe this state-
ment as a request for a writ of mandamus compelling
action by either the Department of Veterans Affairs or the
Veterans Court, such a request would fail. A writ of
mandamus “is a ‘drastic and extraordinary’ remedy
‘reserved for really extraordinary causes.’” Cheney v. U.S.
Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (quoting Ex
parte Fahey, 332 U.S. 258, 259–60 (1947)). We cannot
issue a writ unless: (1) the petitioner has no other ade-
quate alternative means to attain the desired relief; (2)
the petitioner has established a clear and indisputable
right to the writ; and (3) the court is satisfied that the
writ is appropriate under the circumstances. Id. at 380–
81. Mr. Gaines cannot establish any of these elements.
Mr. Gaines’s claims are pending before the Regional
Office and there is no indication that the Regional Office
will fail to reach a decision in due course. See Lamb v.
Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002)
(“[E]xtraordinary writs cannot be used as substitutes for
appeals even though hardship may result from delay.”).
Finally, the Veterans Court did not err in reaching its
conclusion that Mr. Gaines previously abandoned his
SMC and TDIU claims. Specifically, the Veterans Court
determined that “even liberally interpreting the appel-
lant’s informal brief, the Court can discern no argument
with regard to the Board’s dismissal of the matters of
TDIU and SMC.” Gaines v. Gibson, 2014 WL 3451489, at
*2. The Veterans Court relied on the established juris-
prudential maxim that an issue not raised on appeal is
waived. Id. (citing Breeden v. West, 13 Vet. App. 250, 250
(2000) (per curiam order) (“It is not the task of the Court
GAINES v. MCDONALD 5
to search the record to try and uncover errors not identi-
fied by the appellant.”); Ford v. Gober, 10 Vet. App. 531,
535 (1997) (noting that arguments not raised before the
Veterans Court are considered abandoned)); see also
Andre v. Principi, 301 F.3d 1354, 1363 (Fed. Cir. 2002)
(finding no error in the Veterans Court’s determination
that the veteran waived arguments by failing to raise
them in his principal brief). Therefore, even to the extent
Mr. Gaines raises these issues on appeal, the Veterans
Court’s determination that these claims were abandoned
was not erroneous.
For these reasons, we affirm the Veterans Court’s
dismissal of Mr. Gaines’s appeal.
AFFIRMED
COSTS
No costs.