NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

VIVIAN M. JOHNSON,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-1977

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-4384, Judge Joseph L. Falvey 

Jr.

______________________ 

Decided: March 14, 2022

______________________ 

VIVIAN M. JOHNSON, Nashua, NH, pro se. 

 MATTHEW JUDE CARHART, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,

PATRICIA M. MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, 

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC. 

Case: 21-1977 Document: 19 Page: 1 Filed: 03/14/2022
2 JOHNSON v. MCDONOUGH

 ______________________ 

Before DYK, PROST, and REYNA, Circuit Judges. 

PER CURIAM. 

Vivian M. Johnson appeals a decision of the U.S. Court 

of Appeals for Veterans Claims (Veterans Court) remanding to the Board of Veterans’ Appeals (Board). See Johnson 

v. McDonough, No. 20-4384, 2021 WL 1226582 (Vet. App. 

Apr. 2, 2021) (Veterans Court Decision). Ms. Johnson 

claims that she is entitled to a larger monthly death pension from the Department of Veterans Affairs (VA). We 

dismiss.

BACKGROUND

Ms. Johnson is the surviving spouse of Air Force veteran Edward G. Tremblay. In October 2013, a VA Regional 

Office (RO) awarded Ms. Johnson a death pension benefit. 

In September 2015, Ms. Johnson notified the VA that she 

would begin receiving Social Security benefits the following 

month. In light of this increased income, the RO determined that Ms. Johnson’s monthly death pension benefit 

should be reduced to zero, effective November 1, 2015. 

Death pension benefits are subject to certain income limitations. See 38 U.S.C. § 1541; 38 C.F.R. §§ 3.3(b)(4), 

3.23(a)(5), (b), (d)(5). 

Ms. Johnson appealed the RO’s determination to the 

Board.1 While that appeal was pending, the RO partially 

granted Ms. Johnson death pension benefits in the amount 

1 Ms. Johnson also appealed the RO’s determination 

that she had received an overpayment in benefits that 

would be collected as a debt. As that debt was later waived, 

and the issue resolved in Ms. Johnson’s favor, see Veterans 

Court Decision, at *1–2, the overpayment issue is not relevant to this appeal. 

Case: 21-1977 Document: 19 Page: 2 Filed: 03/14/2022
JOHNSON v. MCDONOUGH 3

of $37 per month for 2015 because it found healthcare costs 

had temporarily decreased her income. However, the RO 

determined that the pension should be terminated as of

January 1, 2016. Thereafter, the Board dismissed Ms. 

Johnson’s appeal after concluding that there were no further issues of law or fact to decide.

On appeal, the Veterans Court found the Board’s dismissal of Ms. Johnson’s claim was erroneous on the ground 

that there remained “a continuing controversy over the 

amount of monthly benefits . . . .” Veterans Court Decision,

at *2. The Veterans Court observed that whereas the VA 

maintained that “Ms. Johnson should have received $37 

per month in 2015 and nothing in 2016[,] . . . Ms. Johnson 

maintain[ed] that she [wa]s entitled to more.” Id. The Veterans Court thus ordered a remand for the Board to address whether Ms. Johnson “is entitled to a compensable 

monthly death pension benefit.” Id. Ms. Johnson appeals 

the Veterans Court’s decision to this court. This court has 

jurisdiction to review final decisions of the Veterans Court. 

See 38 U.S.C. § 7292. 

DISCUSSION

In appeals from the Veterans Court, we have “generally declined to review non-final orders,” including remand 

orders. Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 

2002) (quoting Adams v. Principi, 256 F.3d 1318, 1320 

(Fed. Cir. 2001)). This “finality requirement is based on 

prudential considerations,” id., and “serves the important 

purpose of promoting efficient judicial administration,” id.

at 1364 (quoting Firestone Tire & Rubber Co. v. Risjord, 

449 U.S. 368, 374 (1981)). Although we have articulated 

narrow exceptions to this finality requirement,2 see id., 

none is satisfied here. 

2 “Our cases establish that we will depart from the 

strict rule of finality when the [Veterans Court] has 

Case: 21-1977 Document: 19 Page: 3 Filed: 03/14/2022
4 JOHNSON v. MCDONOUGH

We therefore dismiss Ms. Johnson’s appeal of the Veterans Court’s decision. If Ms. Johnson is dissatisfied with 

the final Board remand decision, she may then appeal to 

the Veterans Court and, if necessary, to this court. 

DISMISSED

COSTS

No costs. 

remanded for further proceedings only if three conditions 

are satisfied: (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 affect 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.” Williams, 275 F.3d at

1364 (citations omitted). 

Case: 21-1977 Document: 19 Page: 4 Filed: 03/14/2022