NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

GEIRY L. MATHIS,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2015-7054

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 14-386, Judge Coral Wong Pietsch.

______________________ 

Decided: August 10, 2015

______________________ 

GEIRY L. MATHIS, Home, PA, pro se.

AMELIA LISTER-SOBOTKIN ̧ Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent-appellee. Also 

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., SCOTT D. AUSTIN; DAVID J. BARRANS,

CHRISTINA LYNN GREGG, Office of General Counsel, United States Department of Veterans Affairs. 
2 MATHIS v. MCDONALD

______________________ 

Before PROST, Chief Judge, NEWMAN and TARANTO, Circuit Judges.

PER CURIAM. 

Geiry L. Mathis appeals the decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”) that dismissed, for lack of jurisdiction, Mr. 

Mathis’s appeal of a remand decision of the Board of 

Veterans’ Appeals (“Board”). Mr. Mathis’s central contention in this case is that he has wrongly been denied total 

disability due to individual employability (“TDIU”) resulting from an injury sustained during combat service. 

Because the Veterans Court correctly determined that it 

lacked jurisdiction to review the Board’s remand decision, 

we affirm that portion of the Veterans Court’s decision. 

Because we lack jurisdiction over the remaining portions 

of this appeal, they are dismissed. 

BACKGROUND

Mr. Mathis served on active duty in the U.S. Army 

from June 1968 to September 1969, and was engaged in 

combat service in the Republic of Vietnam. During his 

service, Mr. Mathis was injured by a gunshot wound to 

the left side of his head. In October 1969, the U.S. Department of Veterans Affairs regional office (“RO”)

awarded Mr. Mathis a disability rating of 20%, wherein 

the first 10% arose from a scar as a residual of the gunshot wound, and the second 10% arose from headaches 

and tinnitus as a result of the trauma, under diagnostic 

code 9304 for organic brain syndrome (“OBS”). In January 1979, the RO increased Mr. Mathis’s disability rating 

for OBS from 10% to 50%, resulting in a combined disability rating of 60%, which satisfied one criterion for TDIU. 

See 38 C.F.R. § 4.16(a). The RO also found individual 

unemployability and granted Mr. Mathis TDIU with an 

effective date of October 17, 1978. 
MATHIS v. MCDONALD 3

In March 1979, the RO requested a new medical examination and, this time, the examiner determined there 

was no basis for Mr. Mathis’s OBS diagnosis. Finding 

that the evidence no longer warranted sustaining a 50% 

rating, the RO reduced Mr. Mathis’s disability rating for 

OBS from 50% to 30%. As a result, the RO concluded that 

Mr. Mathis no longer met the requirements for TDIU.

From the RO’s March 1979 decision sprung a number 

of appeals and remands. The first line of decisions addressed an issue not on appeal here—Mr. Mathis’s contention that the March 1979 decision to reduce his

disability rating from 50% to 30% contained clear and 

unmistakable error (“CUE”). Specifically, the Board 

found the RO’s decision did not contain CUE, but the 

Veterans Court vacated and remanded. The Board, on 

remand, again determined that the 1979 decision did not 

contain CUE, but the Veterans Court again reversed and 

remanded, this time with directions for the Board to 

restore Mr. Mathis’s 50% disability rating for OBS. 

Important to the present appeal, the Veterans Court 

noted in its 2008 decision that it lacked jurisdiction to 

address Mr. Mathis’s additional argument that the March 

1979 decision also involved CUE with respect to the 

denial of TDIU, as this was a distinct theory of CUE that 

had not been previously presented to the RO and adjudicated by the Board. On remand, the Board restored Mr. 

Mathis’s disability rating for OBS to 50%, found that it, 

too, lacked jurisdiction over the issue of whether there 

was CUE in the March 1979 denial of TDIU, and remanded that matter back to the RO. Thereafter, the Veterans 

Court affirmed the Board’s restoration of Mr. Mathis’s 

50% disability rating for OBS as well as its referral of the 

TDIU matter back to the RO. On appeal to this court, we 

summarily affirmed and dismissed-in-part. 

Meanwhile, in a second line of decisions relevant to 

this appeal, the RO found in February 2011 that its

March 1979 decision to deny Mr. Mathis entitlement to 
4 MATHIS v. MCDONALD

TDIU did not contain CUE. Mr. Mathis filed a notice of 

disagreement, but no further action was taken by the RO. 

In December 2013, the Board determined that because 

the RO had not taken any action in response to Mr. 

Mathis’s notice of disagreement, the matter must be 

remanded to the RO for issuance of a statement of the 

case (“SOC”), during which proceedings Mr. Mathis could 

submit additional evidence and argument. Mr. Mathis 

appealed the Board’s remand decision to the Veterans 

Court. In a single-judge order in August 2014, that court 

dismissed his appeal for lack of jurisdiction on grounds 

that the Board’s remand decision for a SOC was not a 

final appealable decision. In that same decision, the 

Veterans Court also denied Mr. Mathis’s motions for an 

extension of a stay of proceedings to obtain counsel and 

for reassignment of the case to another judge. Following 

the single-judge decision, Mr. Mathis filed a motion for 

panel review (which was granted, following which the 

panel adopted the single-judge order as the decision of the 

court) and a motion for panel and full-court reconsideration (which was denied). Mr. Mathis now appeals to us.

DISCUSSION

Mr. Mathis asks this court to finally resolve his claim 

that he has wrongly been denied TDIU. He argues that, 

now that the agency has correctly found that the March 

1979 disability rating reduction was the result of CUE, 

the agency must also recognize that the March 1979 

denial of TDIU cannot stand. It is Mr. Mathis’s position 

that the agency’s continuous appeals and remands, without resolving the TDIU issue, constitutes a misapplication 

of 38 C.F.R. §§ 3.105(a), 4.1, 4.2, 4.41, and 4.42 and violation of his due process and constitutional rights.

Our ability to act is bound by the jurisdictional and 

procedural rules that govern appeals of veterans’ claims 

through the agency, the Veterans Court, and this court. 

In this case, Mr. Mathis is appealing from the Veterans 
MATHIS v. MCDONALD 5

Court’s decision that it lacks jurisdiction over the Board’s 

remand decision. Whether the Veterans Court possessed 

jurisdiction over Mr. Mathis’s appeal is an issue of statutory construction that we review without deference. 38 

U.S.C. § 7292; Howard v. Gober, 220 F.3d 1341, 1343

(Fed. Cir. 2000).

The Veterans Court correctly determined that it 

lacked jurisdiction. Section 7252(a) of Title 38 of the 

United States Code Annotated provides in relevant part: 

§ 7252. Jurisdiction; finality of decisions

The Court of Appeals for Veterans Claims shall 

have exclusive jurisdiction to review decisions of 

the Board of Veterans’ Appeals. The Secretary 

may not seek review of any such decision. The 

Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the 

matter, as appropriate.

38 U.S.C. § 7252(a). As we explained in Howard, “the 

Court of Appeals for Veterans Claims’ jurisdiction ‘is 

premised on and defined by the Board’s decision concerning the matter being appealed,’ and when the Board has 

not rendered a decision on a particular issue, the [Veterans] [C]ourt has no jurisdiction to consider it under section 7252(a).” 220 F.3d at 1344 (quoting Ledford v. West, 

136 F.3d 776, 1343 (Fed. Cir. 1998)). Here, the Veterans 

Court dismissed on grounds that the Board’s remand 

decision for a SOC was not a final appealable decision

that addressed the merits of Mr. Mathis’s challenge to the 

TDIU determination. The Veterans Court was correct to 

do so, as a Board remand decision is “not a decision within the meaning of section 7252(a).” Kirkpatrick v. Nicholson, 417 F.3d 1361, 1365 (Fed. Cir. 2005). 

Our inability to act at this stage, however, does not 

mean that Mr. Mathis cannot obtain the relief he seeks. 

The issue of CUE in the March 1979 denial of TDIU has 
6 MATHIS v. MCDONALD

been remanded to the RO. In that forum, Mr. Mathis can 

present his arguments that certain regulations have been 

misapplied, and that his now correctly restored 50% OBS 

disability rating gives rise to a combined rating that 

entitles him to TDIU. If Mr. Mathis disagrees with the 

RO’s determination, he can, at that time, seek further 

review. 

We also conclude that we lack jurisdiction to consider

the Veterans Court’s denials of Mr. Mathis’s motions for 

an extension of a stay of proceedings to obtain counsel 

and for reassignment of the case to another judge. With 

respect to the stay motion, the Veterans Court noted that 

it had already granted Mr. Mathis multiple stays to 

obtain counsel, and thus opted to exercise its discretion

under Rule 5(a)(3) of its Rules of Practice and Procedure

in denying an additional extension. This determination 

was a factual one, does not present any question of law,

and is therefore outside our jurisdiction. 38 U.S.C. 

§ 7292. Likewise, with respect to Mr. Mathis’s motion for 

reassignment to Judge Schoelen (who has handled other 

of Mr. Mathis’s matters), the Veterans Court noted that 

the motion to dismiss was properly assigned to Judge 

Pietsch according to the court’s Internal Operating Procedures, and that no exception to the usual rules applied. 

Nevertheless, the Veterans Court went on to further 

consider Mr. Mathis’s motion in the exercise of its discretion, but concluded that reassignment was not warranted

in this case. Again, this determination was a factual one, 

does not present any question of law, and is therefore 

outside our jurisdiction. 38 U.S.C. § 7292.

For the foregoing reasons, we affirm the Veterans 

Court’s dismissal of the Board’s remand decision, and 

dismiss the remaining portions of this appeal. 

AFFIRMED-IN-PART AND DISMISSED-IN-PART
MATHIS v. MCDONALD 7

COSTS

Each party shall bear their own costs.