Case: 20-2172 Document: 34 Page: 1 Filed: 03/23/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE D. PREWITT,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-2172
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5262, Judge Joseph L. Falvey,
Jr.
______________________
Decided: March 23, 2021
______________________
GEORGE DUNBAR PREWITT, JR., Greenville, MS, pro se.
ANTHONY F. SCHIAVETTI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, TARA K. HOGAN, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Case: 20-2172 Document: 34 Page: 2 Filed: 03/23/2021
2 PREWITT v. MCDONOUGH
Before PROST, Chief Judge, CLEVENGER and HUGHES,
Circuit Judges.
PER CURIAM.
George D. Prewitt appeals from the memorandum de-
cision of the United States Court of Appeals for Veterans
Claims, which affirmed in part, remanded in part, and dis-
missed in part Mr. Prewitt’s appeal from the decision of the
Board of Veterans’ Appeals. For the reasons listed below,
we dismiss Mr. Prewitt’s appeal. 1
I
Mr. Prewitt served on active duty in the United States
Army from March 1968 to March 1970. While in combat in
Vietnam, he suffered a gunshot wound to the neck. In June
1970, a VA regional office (RO) granted him service connec-
tion for gunshot wound residuals with a 30 percent disabil-
ity rating. In that same decision, the RO denied his claim
of service connection for hypertension.
On January 2, 1980, Mr. Prewitt applied for an in-
creased rating for the gunshot wound residuals, and after
an initial denial, the RO increased his disability rating for
gunshot wound residuals from 30 to 40 percent, effective
January 2, 1980. The RO also granted him separate 10 per-
cent ratings for scarring on his neck and an injury to his
fifth cranial nerve, effective January 2, 1980. In March
2005, Mr. Prewitt also submitted a claim for service
1 Mr. Prewitt’s motion filed on February 8, 2021,
Docket No. 28, which we construe as a motion for leave to
supplement the appendix, is hereby granted. Mr. Prewitt’s
motion for clarification of our order directing the parties to
submit supplemental briefing, filed on February 5, 2021,
Docket No. 27, is hereby dismissed as moot because Mr.
Prewitt submitted a supplemental brief in response to the
order.
Case: 20-2172 Document: 34 Page: 3 Filed: 03/23/2021
PREWITT v. MCDONOUGH 3
connection for tinnitus, which, after several appeals and
remands, was granted with an effective date of March 30,
2005. In March 2006, Mr. Prewitt submitted an application
to reopen his claim for hypertension that had been denied
in 1970, and he was granted an effective date of November
20, 2006, for hypertension.
This appeal concerns an April 17, 2019, decision of the
Board of Veterans’ Appeals, in which Mr. Prewitt had ap-
pealed eight distinct issues. After the Board issued a deci-
sion that dismissed in part, denied in part, and remanded
in part, Mr. Prewitt appealed the following issues to the
Veterans Court: (1) the denial of an earlier effective date
for tinnitus; (2) the denial of a rating greater than 10%
from March 12, 1970, to January 1, 1980, for gunshot
wound residuals; (3) the denial of his motion to revise the
June 1970 rating decision on the basis of clear and unmis-
takable error (CUE); (4) the denial of an earlier effective
date than June 2, 1980, for left cranial nerve 12 palsy; and
(5) the denial of an effective date earlier than November
20, 2006, for hypertension. Mr. Prewitt also appealed the
two issues remanded by the Board, (1) entitlement to a rat-
ing in excess of 40 percent from January 2, 1980, for gun-
shot wound residuals and (2) entitlement to a total
disability rating based on individual unemployability due
to service-connected disabilities (TDIU). App’x 35. 2
The Veterans Court affirmed the Board’s denial of an
effective date earlier than March 30, 2005, for tinnitus and
the denial of a rating greater than 10% from March 12,
1970, to January 1, 1980, for gunshot wound residuals.
Id. at 36–38. The Veterans Court remanded part of the
Board’s decision regarding error in the June 1970 decision
for several reasons, upon the Secretary’s agreement that
2 Citations to App’x refer to the appendix filed by
Mr. Prewitt and reflect the pagination applied by this
court’s electronic case files system, Docket No. 11.
Case: 20-2172 Document: 34 Page: 4 Filed: 03/23/2021
4 PREWITT v. MCDONOUGH
the Board (1) failed to address all evidence in determining
whether Mr. Prewitt was provided notice of his right to ap-
peal and thus whether the June 1970 rating decision is fi-
nal; (2) failed to rate Mr. Prewitt’s cranial nerve and
muscle injuries separately; and (3) failed to address
whether relevant service treatment records were associ-
ated with the claims file since the June 1970 rating deci-
sion. Id. at 38–40. Additionally, the Veterans Court
remanded the Board’s denial of an effective date earlier
than November 20, 2006, for hypertension for the Board to
address the relevance of certain documents that both the
RO and the Board did not address. Id. at 41–42.
The Veterans Court also dismissed several of
Mr. Prewitt’s claims. The Veterans Court found that
Mr. Prewitt made a separate argument that the June 1970
rating decision contained CUE because the decision did not
grant separate or increased ratings for cranial nerve 7 spe-
cifically, or for an upper radicular peripheral nerve disor-
der. Finding that Mr. Prewitt made these arguments for
the first time on appeal, the Veterans Court dismissed for
lack of jurisdiction. Id. at 40. The Veterans Court also
found that it lacked jurisdiction to consider the appeal of
the remanded claims for gunshot wound residuals and
TDIU, as they are not final decisions of the Board. Id. at
40–41. And it dismissed Mr. Prewitt’s appeal requesting an
earlier effective date for cranial nerve 12 palsy, finding
that he “ma[de] no discernable argument regarding [that]
claim.” Id. at 36.
Mr. Prewitt now appeals from the decision of the Vet-
erans Court.
II
A
This court has limited jurisdiction to review decisions
of the Veterans Court. We decide “all relevant questions of
law, including interpreting constitutional and statutory
Case: 20-2172 Document: 34 Page: 5 Filed: 03/23/2021
PREWITT v. MCDONOUGH 5
provisions.” 38 U.S.C. § 7292(d)(1). But we lack jurisdiction
to review factual issues and the application of law to fact,
unless a constitutional question is presented. Cook v. Prin-
cipi, 353 F.3d 937, 939 (Fed. Cir. 2003); 38 U.S.C.
§ 7292(d)(2).
In addition, while this jurisdictional statute “does not
expressly premise appellate review on the finality of [the
Veterans Court’s] decision,” we have “generally declined to
review non-final orders of the Veterans Court.” Williams v.
Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002). Thus, we
“typically will not review remand orders by the [Veterans
Court].” Id. at 1364. “[U]nder some circumstances review
is available for a claim for which final judgment has been
entered even if other, separate claims have been re-
manded,” but “we will not review final judgments on sepa-
rable claims where other claims are still pending if our
review would disrupt the orderly process of adjudication—
for example, where the appealed claim is inextricably in-
tertwined with the remanded claim.” Joyce v. Nicholson,
443 F.3d 845, 850 (Fed. Cir. 2006) (internal quotation
marks and citations omitted).
B
We begin by noting that the Veterans Court remanded
four of Mr. Prewitt’s claims: (1) whether the June 1970 RO
decision was final; (2) whether the June 1970 decision con-
tained error for failing to rate his cranial nerve and muscle
injuries separately; (3) whether relevant service treatment
records were associated with his claims file since the June
1970 RO decision; and (4) whether he is entitled to an ef-
fective date earlier than November 20, 2006, for hyperten-
sion. We decline to review any of these decisions, as they
are non-final. We also decline to review Mr. Prewitt’s con-
stitutional challenges, which include an Equal Protection
claim, a Due Process claim, and a Takings Clause claim, as
they are “inextricably intertwined” with the remanded
Case: 20-2172 Document: 34 Page: 6 Filed: 03/23/2021
6 PREWITT v. MCDONOUGH
portions of the Veterans Court’s decision. Joyce, 443 F.3d
at 850.
Four of Mr. Prewitt’s claims are separable from the re-
manded claims: (1) the denial of an earlier effective date
for tinnitus; (2) the denial of a rating greater than 10%
from March 12, 1970, to January 1, 1980, for gunshot re-
siduals; (3) the denial of his CUE claim regarding cranial
nerve 7 and upper radicular peripheral nerve disorder; and
(4) the denial of an earlier effective date for his cranial
nerve 12 palsy claim. However, because Mr. Prewitt’s ar-
guments related to these claims concern only issues of fact
or application of law to fact, we do not have jurisdiction to
review them. 38 U.S.C. § 7292(d)(2); Butler v. Shinseki,
603 F.3d 922, 926 (Fed. Cir. 2010) (“[T]he factual findings
of when a disability was claimed or service connection es-
tablished are not subject to our review.”).
Finally, Mr. Prewitt makes an argument regarding the
“nullification” of the Board’s orders by a “lower tribunal.”
Appellant’s Br. at 8, 28–29. 3 Mr. Prewitt contends that a
June 7, 2019, decision by “an unidentified RO” nullified
several portions of the Board’s April 17, 2019, decision.
Id. at 28. However, because this issue was not presented to
the Board or to the Veterans Court, we decline to review it.
Jackson v. Wilkie, 732 F. App’x 872, 875 (Fed. Cir. 2018).
III
Because Mr. Prewitt’s appeal contains only claims that
are not reviewable and claims over which we do not have
jurisdiction, we dismiss.
DISMISSED
3 Citations to Mr. Prewitt’s informal brief (and the
pages and documents included therein) reflect the pagina-
tion applied by this court’s electronic case files system,
Docket No. 3.
Case: 20-2172 Document: 34 Page: 7 Filed: 03/23/2021
PREWITT v. MCDONOUGH 7
COSTS
No costs.