NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

EZEKIEL GAINES,

Claimant-Appellant,

v.

ROBERT A. MCDONALD, 

Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2014-7126

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 13-2488, Judge William A. Moorman.

______________________ 

Decided: January 12, 2015

______________________ 

EZEKIEL GAINES, of Decatur, Georgia, pro se. 

CHRISTOPHER L. HARLOW, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondentappellee. With him on the brief were JOYCE R. BRANDA,

Acting Assistant Attorney General, ROBERT E.

KIRSCHMAN, Director, and ALLISON KIDD-MILLER, Assistant Director. Of counsel on the brief were YOU KEN LEE,
2 GAINES v. MCDONALD

Deputy Assistant General Counsel, and TRACEY PARKER 

WARREN, Attorney, United States Department of Veterans 

Affairs, of Washington, DC. 

______________________ 

Before MOORE, WALLACH, and CHEN, Circuit Judges.

PER CURIAM. 

Ezekiel Gaines appeals from a decision of the United 

States Court of Appeals for Veterans Claims (Veterans 

Court) dismissing his appeal. Gaines v. Gibson, No. 13-

2488, 2014 WL 3451489 (Vet. App. July 16, 2014). For 

the reasons set forth below, we affirm.

BACKGROUND

Mr. Gaines served on active duty in the United States 

Air Force from June 1970 until February 1974. In 1972,

while working at U-Tapao airfield in Thailand, Mr. 

Gaines sustained cervical spinal injuries when he fell 

from the wheel well of a B-52 airplane. In 1979, the 

Regional Office found service-connection for Mr. Gaines’s 

spinal injuries and granted him a twenty percent disability rating. Since that time, the Regional Office has periodically increased Mr. Gaines’s disability rating. Most 

recently, in 2007, Mr. Gaines was granted a disability 

rating of fifty percent. 

In 2010, Mr. Gaines challenged this rating and also 

commenced new claims for special monthly compensation 

(SMC) and a total disability rating based on individual 

unemployability (TDIU). The Board of Veterans’ Appeals

(Board) remanded Mr. Gaines’s request for a higher 

disability rating to the Regional Office for issuance of a 

Supplemental Statement of the case. In addition, the 

Board dismissed Mr. Gaines’s SMC and TDIU claims as 

abandoned. On appeal, the Veterans Court concluded 

that because the Board had remanded Mr. Gaines’s 

request for a disability rating in excess of fifty percent, 
GAINES v. MCDONALD 3

the Veterans Court lacked jurisdiction to hear the appeal. 

The court also noted that nothing in Mr. Gaines’s brief on 

appeal could be construed as challenging the Board’s 

dismissal of his SMC and TDIU claims. Accordingly, the 

Veterans Court dismissed the appeal. The present appeal 

followed. 

DISCUSSION

Our jurisdiction over claims appealed from the Veterans Court is limited. Under 38 U.S.C. § 7292(a), we may 

review only the “validity of a decision of the [Veterans] 

Court on a rule of law or 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 are not permitted to 

review “a challenge to a factual determination” or a 

“challenge to a law or regulation as applied to the facts of 

a particular case,” unless the appeal presents a constitutional issue. Id. § 7292(d)(2)(A)–(B).

Mr. Gaines disagrees with the Veterans Court’s dismissal of his appeal and requests that a decision be made 

on his claim. The Veterans Court’s jurisdiction is limited

by 38 U.S.C. § 7252(a) to “decisions” by the Board. But, 

as we recognized in Kirkpatrick v. Nicholson, a Board 

remand is not a “decision” within the meaning of 

§ 7252(a). 417 F.3d 1361, 1365–66 (Fed. Cir. 2005). Here, 

because the Board remanded Mr. Gaines’s claim for a 

higher disability rating to the Regional Office, the Veterans Court was required by statute, as interpreted by 

Kirkpatrick, to dismiss Mr. Gaines’s appeal for lack of 

jurisdiction. 

Mr. Gaines notes that his appeal began in 2010, and 

urges this Court to “make a decision on [his] appeal.” 

Informal Br. at 2. However, the statute governing our 

jurisdiction, 38 U.S.C. § 7292, does not permit us to 

examine Mr. Gaines’s medical records and determine for 

ourselves whether he is entitled to a disability rating in 
4 GAINES v. MCDONALD

excess of fifty percent. If Mr. Gaines is ultimately dissatisfied with the Regional Office’s decision on remand, he 

may then again avail himself of the appellate process.

Mr. Gaines also asserts that the Veterans Court’s decision “has done nothing but prolong [his] attempt to 

obtain the compensation that [he] believe[s] [is] due.” 

Informal Br. at 1. Even if we were to construe this statement as a request for a writ of mandamus compelling 

action by either the Department of Veterans Affairs or the 

Veterans Court, such a request would fail. A writ of 

mandamus “is a ‘drastic and extraordinary’ remedy 

‘reserved for really extraordinary causes.’” Cheney v. U.S. 

Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (quoting Ex 

parte Fahey, 332 U.S. 258, 259–60 (1947)). We cannot 

issue a writ unless: (1) the petitioner has no other adequate alternative means to attain the desired relief; (2) 

the petitioner has established a clear and indisputable 

right to the writ; and (3) the court is satisfied that the 

writ is appropriate under the circumstances. Id. at 380–

81. Mr. Gaines cannot establish any of these elements. 

Mr. Gaines’s claims are pending before the Regional 

Office and there is no indication that the Regional Office 

will fail to reach a decision in due course. See Lamb v. 

Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002) 

(“[E]xtraordinary writs cannot be used as substitutes for 

appeals even though hardship may result from delay.”).

Finally, the Veterans Court did not err in reaching its 

conclusion that Mr. Gaines previously abandoned his 

SMC and TDIU claims. Specifically, the Veterans Court 

determined that “even liberally interpreting the appellant’s informal brief, the Court can discern no argument 

with regard to the Board’s dismissal of the matters of 

TDIU and SMC.” Gaines v. Gibson, 2014 WL 3451489, at 

*2. The Veterans Court relied on the established jurisprudential maxim that an issue not raised on appeal is 

waived. Id. (citing Breeden v. West, 13 Vet. App. 250, 250 

(2000) (per curiam order) (“It is not the task of the Court 
GAINES v. MCDONALD 5

to search the record to try and uncover errors not identified by the appellant.”); Ford v. Gober, 10 Vet. App. 531, 

535 (1997) (noting that arguments not raised before the 

Veterans Court are considered abandoned)); see also 

Andre v. Principi, 301 F.3d 1354, 1363 (Fed. Cir. 2002) 

(finding no error in the Veterans Court’s determination 

that the veteran waived arguments by failing to raise 

them in his principal brief). Therefore, even to the extent 

Mr. Gaines raises these issues on appeal, the Veterans 

Court’s determination that these claims were abandoned 

was not erroneous. 

For these reasons, we affirm the Veterans Court’s 

dismissal of Mr. Gaines’s appeal. 

AFFIRMED

COSTS

No costs.