NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ROBERT J. MAY, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2010-7066 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in Case No. 08-3958, 

Judge Mary J. Schoelen. 

____________________________ 

Decided: October 7, 2010 

____________________________ 

ROBERT J. MAY, of Port Townsend, Washington, pro 

se. 

A. BONDURANT ELEY, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondentappellee. With her on the brief were TONY WEST, Assis-
MAY v. DVA 2

tant Attorney General, JEANNE E. DAVIDSON, Director, 

and MARTIN F. HOCKEY, JR., Assistant Director. Of 

counsel on the brief were DAVID J. BARRANS, Deputy 

Assistant General Counsel, and JAMIE L. MUELLER, Attorney. Of counsel was MICHAEL G. DAUGHERTY, Attorney, Office of the General Counsel, United States 

Department of Veterans Affairs, of Washington, DC. 

__________________________ 

Before NEWMAN, LOURIE, and BRYSON, Circuit Judges. 

PER CURIAM. 

Robert J. May appeals from the judgment of the 

United States Court of Appeals for Veterans Claims (“the 

Veterans Court”), which (1) dismissed May’s appeal of an 

order by the Board of Veterans’ Appeals (“the Board”) to 

remand his claims, and (2) affirmed the Board’s order to 

dismiss with prejudice May’s motion to revise an earlier 

decision of the Board. May v. Shinseki, No. 08-3958, 2009 

WL 2730493 (Vet. App. Aug. 31, 2009). Because the 

Veterans Court correctly determined that the Board’s 

remand order was not a “decision” under 38 U.S.C. 

§ 7252, and because we lack jurisdiction to review the 

Veterans Court’s dismissal of May’s motion under 38 

C.F.R. § 20.1400(b), we affirm in part and dismiss in part. 

BACKGROUND

May served on active duty from August 1974 to November 1986. In a series of decisions between August 

1995 and June 2002, the Regional Office of the Department of Veterans Affairs (“the RO”) granted service 

connection and assigned a disability rating of 10% for 

incomplete paralysis of the sciatic nerve and denied May’s 

claims for service connection for thoracic spine and back 
3 MAY v. DVA

disabilities. May appealed to the Board, and on March 7, 

2003, the Board issued a decision affirming the RO’s 

determinations. May then filed with the Board a motion 

for revision of the Board’s decision based on clear and 

unmistakable error (“the CUE motion”) and a motion for 

reconsideration. The Board denied both motions. May 

appealed the denial of his CUE motion to the Veterans 

Court. While that appeal was pending, May also directly 

appealed the Board’s decision to the Veterans Court. The 

Veterans Court vacated and remanded the Board’s denial 

of May’s CUE motion, ordering the Board to hold the 

matter in abeyance under 38 C.F.R. § 20.1410 until the 

Veterans Court decided the direct appeal of the Board 

decision. May v. Nicholson, 19 Vet. App. 310, 320 (2005). 

The Veterans Court then decided the direct appeal, vacating and remanding the Board’s decision for additional 

factual determinations. May v. Nicholson, No. 04-1057, 

2007 WL 2115179, at *1 (Vet. App. July 19, 2007). 

On July 18, 2008, the Board issued two orders. In one 

order (“Board Order 1”), the Board remanded May’s 

disability claims to the RO for additional evidence and 

examination. In the other order (“Board Order 2”), the 

Board dismissed with prejudice the CUE motion. May 

appealed both orders to the Veterans Court. 

On August 31, 2009, the Veterans Court decided 

May’s appeals. The court dismissed the appeal of Board 

Order 1 for lack of jurisdiction. The court determined 

that Board Order 1 was not a “decision” within the meaning of 38 U.S.C. §§ 7252(a) and 7266(a), and therefore 

May’s appeal was outside its jurisdiction. May, 2009 WL 

2730493, at *2. In addition, the court affirmed Board 

Order 2, reasoning that 38 C.F.R. § 20.1400(b) prohibits a 

CUE motion relating to a Board decision that has been 

appealed to the Veterans Court. Id. at *3. 
MAY v. DVA 4

May timely appealed to this court. Our jurisdiction in 

appeals from the Veterans Court rests on 38 U.S.C. 

§ 7292. 

DISCUSSION

The scope of our review of a Veterans Court decision 

is governed by 38 U.S.C. § 7292. Under § 7292(a), we may 

review a decision by the Veterans Court with respect to 

the validity of “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 may not, absent a constitutional issue, review challenges to factual determinations 

or challenges to the application of a law or regulation to 

facts. Id. § 7292(d)(2). Whether the Veterans Court 

possessed jurisdiction over May’s appeal is a legal issue 

that we review without deference. See Howard v. Gober, 

220 F.3d 1341, 1343 (Fed. Cir. 2000). 

With regard to Board Order 1, we must determine 

whether the Veterans Court properly dismissed the 

appeal for lack of jurisdiction. May argues that the 

Veterans Court had jurisdiction to review Board Order 1. 

He asserts that the Veterans Court misinterpreted 38 

U.S.C. § 7252(a) in concluding that it lacked jurisdiction 

to review the Board’s remand order. He further asserts 

that the Board, in deciding to remand to the RO, made 

implicit final decisions relating to his disability claims, 

and that the Veterans Court had jurisdiction on account 

of these implicit decisions. 

In response, the Secretary of Veterans Affairs (“the 

Secretary”) argues that the Veterans Court correctly 

determined that it lacked jurisdiction over Board Order 1. 

The Secretary asserts that the Veterans Court may not 
5 MAY v. DVA

review a Board remand order, because it is neither a 

“decision” under 38 U.S.C. § 7252(a) nor a “final decision” 

under 38 U.S.C. § 7266(a). 

In Kirkpatrick v. Nicholson, we considered whether 

an order to remand a claim to an RO is a “decision” of the 

Board under 38 U.S.C. § 7252(a). 417 F.3d 1361, 1362 

(Fed. Cir. 2005). In that case, the Veterans Court had 

dismissed the veteran’s appeal of a Board remand order 

on the basis that it was not a final decision over which the 

Veterans Court had jurisdiction. 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. We noted that the Board’s 

remand order contained no decision granting or denying 

relief, and we concluded that the veteran’s contentions 

that the Board’s order contained an implicit denial of 

relief were without merit. Id. at 1364–65. We therefore 

held that the Board remand order was not a decision 

under § 7252(a) and that the Veterans Court correctly 

concluded that it lacked jurisdiction over the veteran’s 

appeal. Id. at 1364. 

Like the remand order in Kirkpatrick, Board Order 1 

does not grant or deny relief. It merely remands May’s 

case to the RO for additional factual development. Board 

Order 1 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 address them in the remand order. As we 

have explained, if the Board does not render a decision on 

an issue, the Veterans Court has no jurisdiction to consider the issue under § 7252(a). Howard, 220 F.3d at 

1344. Thus, the Board’s silence on a particular issue in 

Board Order 1 is not an implicit denial of that issue 
MAY v. DVA 6

serving to confer jurisdiction on the Veterans Court. See

Kirkpatrick, 417 F.3d at 1365 (stating that the veteran’s 

“claim that the Board’s refusal to address his arguments 

should be reviewed as a decision of the Board is without 

merit.”). We therefore conclude that the Veterans Court 

correctly determined that it did not have jurisdiction over 

May’s appeal of Board Order 1. 

With regard to Board Order 2, we must as a threshold 

matter determine whether May raises an issue over 

which we have jurisdiction. As we stated above, although 

we may review the Veterans Court’s interpretation of a 

regulation, we may not review a challenge to the application of a regulation to the facts. 38 U.S.C. § 7292(d). May 

argues that the Veterans Court, in affirming the Board’s 

dismissal of the CUE motion, misinterpreted 38 C.F.R. 

§ 20.1400. May argues that the Veterans Court lacked 

authority to affirm the dismissal of his CUE motion, 

because the CUE motion had already been vacated by the 

Veterans Court. Thus, May asserts that “the Board never 

should have reviewed the ‘dead [CUE] motion’ in the first 

place.” 

In response, the Secretary argues that the Veterans 

Court did not interpret 38 C.F.R. § 20.1400, but merely 

applied this regulation to the facts of May’s case. The 

Secretary asserts that the court did not discuss or expand, 

and thus did not interpret, this regulation. 

Section 20.1400(b) provides that a final Board decision may not be reviewed for CUE if the decision was 

“appealed to and decided by a court of competent jurisdiction.” Here, the Veterans Court affirmed the Board’s 

dismissal of May’s CUE motion, reasoning that “§ 1400(b) 

prohibits CUE motions as to Board decisions that have 

been appealed to this Court.” May, 2009 WL 2730493, at 
7 MAY v. DVA

*3. We fail to see how the court’s decision involved an 

interpretation of § 1400(b). The Veterans Court merely 

restated the language of the regulation before applying it 

to the facts of May’s case; the court did not interpret or 

elaborate upon the meaning of the regulation. Even if the 

Veterans Court did interpret § 20.1400(b), we do not 

perceive any error in the court’s decision. Moreover, to 

the extent that May challenges the court’s application of 

§ 20.1400(b) to the facts of his case, we lack jurisdiction to 

consider any such challenge. We therefore dismiss May’s 

appeal regarding Board Order 2 for lack of jurisdiction. 

We have considered May’s other arguments regarding 

Board Orders 1 and 2, and we find them unpersuasive. 

CONCLUSION

The Veterans Court correctly determined that it did 

not have jurisdiction to consider May’s appeal of the 

Board’s order remanding May’s case to the RO. Moreover, 

we lack jurisdiction to hear May’s appeal of the Veterans 

Court’s decision to dismiss May’s CUE motion. We therefore affirm in part and dismiss in part. 

AFFIRMED IN PART and DISMISSED IN PART 

COSTS

No costs.