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Rolling v. Peake

United States Court of Appeals, Federal Circuit
Jan 12, 2009
306 F. App'x 601 (Fed. Cir. 2009)

Summary

holding that the adequacy of the VA's compliance with an order for further medical examination is an issue outside the scope of our review

Summary of this case from Forster-Jones v. Shinseki

Opinion

No. 2008-7025.

January 12, 2009.

Appeal from the United States Court of Appeals for Veterans Claims in 05-1268, William A. Moorman, Judge.

Joseph P. Hrutka, McGinn IP Law Group, of Vienna, VI, argued for claimant-appellant.

Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Tara K. Hogan, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Ethan G. Kalett, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN and MOORE, Circuit Judges, and GETTLEMAN, District Judge.

Honorable Robert W. Gettleman, United States District Court for the Northern District of Illinois, sitting by designation.


Rose P. Rolling appeals the decision of the Court of Appeals for Veterans Claims ("Veterans Court") affirming the denial by the Board of Veterans' Appeals of her claim for service connection for her deceased husband's pancreatic cancer. Rolling v. Nicholson, No. 05-1268, 2007 WL 4967080 (Vet.App. Aug.29, 2007). Mrs. Rolling argues that the Veterans Court either erred in interpreting the law, or abused its discretion, in failing to require that the Secretary of Veterans Affairs fully comply with an earlier remand order issued by the Board requiring further development of her case. The Veterans Court had concluded that the Secretary, acting through a medical examiner, had substantially complied with the remand order. Id. at *6. We have carefully considered Mrs. Rolling's arguments and conclude that her appeal essentially seeks our review of a factual matter. The adequacy of the VA's compliance with a Board remand order for further medical examination is a factual matter and outside our statutory jurisdiction as provided by 38 U.S.C. § 7292(a), (d)(2). Dyment v. Principi, 287 F.3d 1377, 1381 (Fed. Cir. 2002) (finding no jurisdiction to address claimant's argument that a VA medical specialist failed to comply with a Board remand order because the argument constituted a challenge to the Veterans Court's decision on factual matter).

While this court's Dyment decision preceded an amendment to the jurisdictional statute 38 U.S.C. § 7292(a) enacted December 6, 2002, see Veterans Benefits Act of 2002, Pub.L. No. 107-330, tit. IV, § 402(a), 116 Stat. 2832, that amendment did not alter the exclusion of factual matters from this court's review.

The appeal is dismissed for lack of jurisdiction.


Summaries of

Rolling v. Peake

United States Court of Appeals, Federal Circuit
Jan 12, 2009
306 F. App'x 601 (Fed. Cir. 2009)

holding that the adequacy of the VA's compliance with an order for further medical examination is an issue outside the scope of our review

Summary of this case from Forster-Jones v. Shinseki
Case details for

Rolling v. Peake

Case Details

Full title:Rose P. ROLLING, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of…

Court:United States Court of Appeals, Federal Circuit

Date published: Jan 12, 2009

Citations

306 F. App'x 601 (Fed. Cir. 2009)

Citing Cases

Forster-Jones v. Shinseki

This factual analysis is outside the scope of our review. See Rolling v. Peake, 306 F. App'x 601 (Fed. Cir.…