Case: 20-1353 Document: 81 Page: 1 Filed: 08/04/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDDY JEAN PHILIPPEAUX,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1353
______________________
Appeals from the United States Court of Appeals for
Veterans Claims in No. 18-1961, Senior Judge Mary J.
Schoelen.
______________________
Decided: August 4, 2020
______________________
EDDY JEAN PHILIPPEAUX, Miami, FL, pro se.
LIRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
ETHAN P. DAVIS, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.; AMANDA BLACKMON, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 20-1353 Document: 81 Page: 2 Filed: 08/04/2020
2 PHILIPPEAUX v. WILKIE
______________________
Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Eddy J. Philippeaux appeals from an order of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”) remanding to the Board of Veterans’ Appeals
(“Board”) Philippeaux’s claim for entitlement to service
connection for traumatic brain injury (“TBI”), or residuals
thereof. Philippeaux v. Wilkie, No. 18-1961, 2019 WL
4007850 (Vet. App. Aug. 26, 2019). Because the Veterans
Court’s remand order is not a final decision, we dismiss
Philippeaux’s appeal for lack of jurisdiction.
I. BACKGROUND
Philippeaux served on active duty with the Navy from
1972 to 1980 and on active duty with the Air Force from
1984 to 1985. In October 1977, while serving in the Navy,
Philippeaux was medically evaluated after hitting his head
against a wall. The examination revealed a one-centimeter
laceration of the left eye, which was treated with two
stiches, and a small abrasion of the right eye. Philippeaux
was then cleared to return to duty.
In December 2009, Philippeaux filed a claim for enti-
tlement to service connection for traumatic brain injury
(“TBI”) or residuals thereof. He underwent a series of ex-
aminations through the VA. In February 2010, a VA ex-
aminer concluded that Philippeaux’s screening for TBI was
positive and referred Philippeaux for further examination.
Records of the follow-up appointments in March and April
do not contain a TBI diagnosis and one physician concluded
TBI was unlikely. On that record, a May 2010 rating deci-
sion denied Philippeaux service connection. On May 28,
2010, after the rating decision, VA records show that a VA
clinician again diagnosed Philippeaux with TBI.
Philippeaux appealed the rating decision to the Board.
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PHILIPPEAUX v. WILKIE 3
In February 2015, Philippeaux underwent additional
examination and the examiner determined that
Philippeaux did not have, and never had, TBI. In March
2018, the Board denied Philippeaux service connection for
TBI. It determined that the evidence from 2010 and 2015
did not establish a diagnosis of TBI. 1 The Board, however,
did not discuss the May 28, 2010 diagnosis. Philippeaux
thus appealed to the Veterans Court
The Veterans Court found that, by failing to address
the May 28, 2010 diagnosis, the Board gave an inadequate
statement of reasons for denying service connection for
TBI. It held that the evidence may support service connec-
tion and remanded to the Board for further consideration.
It explained that reversal was inappropriate because the
Board had not yet completed the required fact finding.
Philippeaux filed a motion for reconsideration or, in the
alternative, a motion for panel decision. On December 18,
2019, panel review was granted, and the Veterans Court
adopted the single-judge decision as the decision of the
court.
Philippeaux appeals.
II. DISCUSSION
Due to prudential considerations, we “typically will not
review remand orders by the [Veterans Court] ‘because
they are not final judgments.’” Williams v. Principi, 275
F.3d 1361, 1364 (Fed. Cir. 2002) (quoting Winn v. Brown,
110 F.3d 56, 57 (Fed. Cir. 1997)). We will exercise jurisdic-
tion over such appeals in limited circumstances:
1 The Board also denied a host of Philippeaux’s other
requests. Philippeaux, 2019 WL 4007850, at *1 n.1.
Philippeaux made no argument to the Veterans Court on
those issues and the court deemed them abandoned. Id.
Accordingly, we do not address them here.
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4 PHILIPPEAUX v. WILKIE
(1) there must have been a clear and final decision
of a legal issue that (a) is separate from the remand
proceedings, (b) will directly govern the remand
proceedings or, (c) if reversed by this court, would
render the remand proceedings unnecessary; (2)
the resolution of the legal issues must adversely af-
fect 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.
Id. (footnotes omitted). None of these criteria are met here.
Most importantly, the Veterans Court did not finally
decide any legal issues. The Veterans Court remanded
Philippeaux’s claim because the Board did not satisfy its
obligation pursuant to 38 U.S.C. § 7104(d)(1) to address all
material facts. The Veterans Court did not elaborate on
the meaning of § 7104(d)(1) or any other statute or regula-
tion, and simply applied settled law to the facts. And the
Veterans Court’s resolution of the issue in this case, i.e.
identifying the Board’s failure to address evidence favora-
ble to Philippeaux and remanding, was not adverse to
Philippeaux. It was, in fact, a small victory.
Accordingly, the Veterans Court’s remand order is not
properly subject to our review.
III. CONCLUSION
For the reasons discussed above, we dismiss
Philippeaux’s appeal for lack of jurisdiction. 2
2 On February 14, 2020, Philippeaux filed with this
court a motion requesting that we strike title 38 U.S.C.
§ 511 as unconstitutional and appoint him counsel. ECF
No. 28. Because we lack jurisdiction to entertain
Philippeaux’s appeal, we dismiss his motion.
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PHILIPPEAUX v. WILKIE 5
DISMISSED
COSTS
No costs.