United States Court of Appeals for the Federal Circuit
December 19, 2011
RICHARD MURTON, CLAIMANT-APPELLANT,
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.
Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-2880, Judge Lawrence B. Hagel.
NOTE: This disposition is nonprecedential.
Before LINN, PROST, and MOORE, Circuit Judges.
This is an appeal from the United States Court of Appeals for Veterans Claims ("Veterans Court"), which addressed (1) a decision of the Board of Veterans' Appeals ("Board") regarding Richard Murton's ("Murton") 2002 claim for an increased rating of his service-connected alopecia areata and (2) an argument Murton raised for the first time at the Veterans Court regarding the finality of a separate claim for psychiatric disability, which he believed had been pending since the late 1960's. The Veterans Court vacated the Board's decision regarding Murton's claim for an increased rating and remanded for reconsideration in view of amended criteria for alopecia, the possibility of entitlement to an extra-schedular rating, and additional favorable evidence. The Veterans Court also addressed Murton's psychiatric disability claim, holding that the Board had finally decided this claim in 1968.
Murton appeals only that part of the Veterans Court's decision which addressed his claim for psychiatric disability. Murton also filed what he characterized as a "motion to dismiss" seeking, in effect, to overturn the Veterans Court's denial of his motion to bifurcate his alopecia claim so that the remand thereof could become effective without awaiting a determination on his claim for psychiatric disability.
Because Murton's appeal to the Veterans Court was taken from a Board
decision regarding only his increased-
claim from 2002, and not regarding a prior claim for psychiatric
disability, the latter was not before the Veterans Court and the
Veterans Court did not have jurisdiction to address it. See
Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2005)
(explaining that a claim could not be adjudicated by the Veterans
Court in the first instance when it was not the subject of a decision
by the Board). Because the Veterans Court did not have jurisdiction
over Murton's psychiatric disability claim, it should not have
addressed that claim, and that portion of its opinion cannot be
While this appeal presents nothing to this court on the merits of any claim that we are authorized to review, this court does possess jurisdiction to address the Veterans Court's lack of jurisdiction. See Wick v. Brown, 40 F.3d 367, 370 (Fed. Cir. 1994) (explaining that where the Veterans Court lacks jurisdiction over a matter, this court has jurisdiction on appeal only for the purpose of correcting the error of jurisdiction). Accordingly, this court exercises only that jurisdiction required to correct the Veteran's Court's error of its jurisdiction and hereby vacates the portion of the Veterans Court's opinion which addresses Murton's claim for psychiatric disability. No other aspect of the Veterans Court's decision is affected by this opinion.*fn1
Each party shall bear its own costs.