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Susan R. Frasier v. Eric K. Shinseki

January 13, 2011

SUSAN R. FRASIER, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in 08-3545, Chief JudgeWilliam P. Greene, Jr.

Per curiam.

NOTE: This disposition is nonprecedential.

Before BRYSON, GAJARSA, and MOORE, Circuit Judges.

Ms. Susan R. Frasier appeals the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") that granted the Secretary of Veterans Affairs' ("Secretary") motion to dismiss for lack of jurisdiction. Frasier v. Shinseki, No. 08-3545, 2009 WL 4064715 (Vet. App. Nov. 25, 2009). Because the Veterans Court did not deprive Ms. Frasier of her procedural due process rights and properly dismissed Ms. Frasier's appeal based on the Board of Veterans' Appeals' ("Board") order remanding the case to the Department of Veterans Affairs ("VA") Regional Office in New York, New York ("Regional Office"), we affirm.

BACKGROUND

Ms. Frasier served on active duty from June 1970 to August 1972. She seeks service connection for numerous conditions that she allegedly suffers, including asthma, tinnitus, endometriosis, ovary removal, skin problems, gastrointestinal disease, crippling muscular mobility disease, and general anxiety disorder.

On August 28, 2008, the Board found that new and material evidence was submitted for Ms. Frasier's claims for a skin disorder, gastrointestinal disability, and psychiatric disability other than post-traumatic stress disorder ("PTSD"). Thus, the Board remanded the case to the Regional Office to reopen these three claims. The Board also remanded to readjudicate the issue of entitlement to service connection for PTSD. On September 3, 2008, Ms. Frasier filed a Motion for Reconsideration in which she denied submitting a claim for PTSD. Thus, on October 14, 2008, the Board vacated the portion of its August 28, 2008 order related to PTSD.

On October 28, 2008, Ms. Frasier appealed the Board's August 28, 2008 and October 14, 2008 orders to the Veterans Court. Frasier, 2009 WL 4064715, at *1; On December 30, 2008, the Secretary moved for an extension of time to file the record before the agency, which the Clerk of the Veterans Court ("Clerk") granted on the same day.

On February 9, 2009, the Secretary moved to dismiss the appeal for lack of jurisdiction and to stay the case based on the pending motion to dismiss. The Clerk granted the Secretary's motion to stay on the same day that it was filed. On February 24, 2009, the Veterans Court ordered Ms. Frasier to "show cause, within 20 days of [the court's] order, why this appeal should not be dismissed for lack of jurisdiction." On March 12, 2009, Ms. Frasier responded to the court's order. On April 29, 2009, Ms. Frasier filed a Motion for Leave to Proceed that was construed as a motion for leave to file an additional response to the court's order. On May 1, 2009, Ms. Frasier filed a Supplemental Statement to her Motion for Leave to Proceed that was construed as another additional response to the court's order.

On November 25, 2009, Chief Judge Greene of the Veterans Court granted Ms. Frasier's motion and supplemental statement, construing them as a motion for leave to file an additional response. Frasier, 2009 WL 4064715, at *1. Chief Judge Greene also dismissed Ms. Frasier's appeal for lack of jurisdiction because the Board, in remanding certain issues to the Regional Office, had not rendered a final decision. Id.

On December 14, 2009, Ms. Frasier filed a Motion for Reconsideration by the full Veterans Court. On March 15, 2010, Chief Judge Greene ordered the Clerk to return Ms. Frasier's motion to her because the motion was prohibited by the court's rules. VET. APP. R. 35(C) ("A motion for a decision by the full Court in a case decided only by a single judge is not permitted.").

Ms. Frasier timely appealed the Veterans Court's decision to this court.

DISCUSSION

Our jurisdiction to review decisions of the Veterans Court is limited by statute. Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the validity of any statute or regulation, or an interpretation thereof, relied on by the Veterans Court in its decision. This court may also interpret constitutional and statutory provisions as needed for resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitutional question, this court may not review "(A) a ...


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