Case: 20-1353     Document: 81   Page: 1    Filed: 08/04/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                EDDY JEAN PHILIPPEAUX,
                    Claimant-Appellant

                            v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2020-1353
                  ______________________

    Appeals from the United States Court of Appeals for
 Veterans Claims in No. 18-1961, Senior Judge Mary J.
 Schoelen.
                ______________________

                  Decided: August 4, 2020
                  ______________________

    EDDY JEAN PHILIPPEAUX, Miami, FL, pro se.

     LIRIDONA SINANI, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent-appellee. Also represented by
 ETHAN P. DAVIS, ELIZABETH MARIE HOSFORD, ROBERT
 EDWARD KIRSCHMAN, JR.; AMANDA BLACKMON, Y. KEN LEE,
 Office of General Counsel, United States Department of
 Veterans Affairs, Washington, DC.
Case: 20-1353     Document: 81    Page: 2   Filed: 08/04/2020




 2                                     PHILIPPEAUX   v. WILKIE



                   ______________________

     Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
 PER CURIAM.
     Eddy J. Philippeaux appeals from an order of the
 United States Court of Appeals for Veterans Claims (“Vet-
 erans Court”) remanding to the Board of Veterans’ Appeals
 (“Board”) Philippeaux’s claim for entitlement to service
 connection for traumatic brain injury (“TBI”), or residuals
 thereof. Philippeaux v. Wilkie, No. 18-1961, 2019 WL
 4007850 (Vet. App. Aug. 26, 2019). Because the Veterans
 Court’s remand order is not a final decision, we dismiss
 Philippeaux’s appeal for lack of jurisdiction.
                       I. BACKGROUND
     Philippeaux served on active duty with the Navy from
 1972 to 1980 and on active duty with the Air Force from
 1984 to 1985. In October 1977, while serving in the Navy,
 Philippeaux was medically evaluated after hitting his head
 against a wall. The examination revealed a one-centimeter
 laceration of the left eye, which was treated with two
 stiches, and a small abrasion of the right eye. Philippeaux
 was then cleared to return to duty.
     In December 2009, Philippeaux filed a claim for enti-
 tlement to service connection for traumatic brain injury
 (“TBI”) or residuals thereof. He underwent a series of ex-
 aminations through the VA. In February 2010, a VA ex-
 aminer concluded that Philippeaux’s screening for TBI was
 positive and referred Philippeaux for further examination.
 Records of the follow-up appointments in March and April
 do not contain a TBI diagnosis and one physician concluded
 TBI was unlikely. On that record, a May 2010 rating deci-
 sion denied Philippeaux service connection. On May 28,
 2010, after the rating decision, VA records show that a VA
 clinician again diagnosed Philippeaux with TBI.
 Philippeaux appealed the rating decision to the Board.
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 PHILIPPEAUX   v. WILKIE                                     3



     In February 2015, Philippeaux underwent additional
 examination and the examiner determined that
 Philippeaux did not have, and never had, TBI. In March
 2018, the Board denied Philippeaux service connection for
 TBI. It determined that the evidence from 2010 and 2015
 did not establish a diagnosis of TBI. 1 The Board, however,
 did not discuss the May 28, 2010 diagnosis. Philippeaux
 thus appealed to the Veterans Court
     The Veterans Court found that, by failing to address
 the May 28, 2010 diagnosis, the Board gave an inadequate
 statement of reasons for denying service connection for
 TBI. It held that the evidence may support service connec-
 tion and remanded to the Board for further consideration.
 It explained that reversal was inappropriate because the
 Board had not yet completed the required fact finding.
     Philippeaux filed a motion for reconsideration or, in the
 alternative, a motion for panel decision. On December 18,
 2019, panel review was granted, and the Veterans Court
 adopted the single-judge decision as the decision of the
 court.
     Philippeaux appeals.
                           II. DISCUSSION
     Due to prudential considerations, we “typically will not
 review remand orders by the [Veterans Court] ‘because
 they are not final judgments.’” Williams v. Principi, 275
 F.3d 1361, 1364 (Fed. Cir. 2002) (quoting Winn v. Brown,
 110 F.3d 56, 57 (Fed. Cir. 1997)). We will exercise jurisdic-
 tion over such appeals in limited circumstances:



     1   The Board also denied a host of Philippeaux’s other
 requests. Philippeaux, 2019 WL 4007850, at *1 n.1.
 Philippeaux made no argument to the Veterans Court on
 those issues and the court deemed them abandoned. Id.
 Accordingly, we do not address them here.
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 4                                      PHILIPPEAUX   v. WILKIE



     (1) there must have been a clear and final decision
     of a legal issue that (a) is separate from the remand
     proceedings, (b) will directly govern the remand
     proceedings or, (c) if reversed by this court, would
     render the remand proceedings unnecessary; (2)
     the resolution of the legal issues must adversely af-
     fect the party seeking review; and, (3) there must
     be a substantial risk that the decision would not
     survive a remand, i.e., that the remand proceeding
     may moot the issue.
 Id. (footnotes omitted). None of these criteria are met here.
     Most importantly, the Veterans Court did not finally
 decide any legal issues. The Veterans Court remanded
 Philippeaux’s claim because the Board did not satisfy its
 obligation pursuant to 38 U.S.C. § 7104(d)(1) to address all
 material facts. The Veterans Court did not elaborate on
 the meaning of § 7104(d)(1) or any other statute or regula-
 tion, and simply applied settled law to the facts. And the
 Veterans Court’s resolution of the issue in this case, i.e.
 identifying the Board’s failure to address evidence favora-
 ble to Philippeaux and remanding, was not adverse to
 Philippeaux. It was, in fact, a small victory.
    Accordingly, the Veterans Court’s remand order is not
 properly subject to our review.
                      III. CONCLUSION
     For the reasons discussed above, we               dismiss
 Philippeaux’s appeal for lack of jurisdiction. 2




     2  On February 14, 2020, Philippeaux filed with this
 court a motion requesting that we strike title 38 U.S.C.
 § 511 as unconstitutional and appoint him counsel. ECF
 No. 28.    Because we lack jurisdiction to entertain
 Philippeaux’s appeal, we dismiss his motion.
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 PHILIPPEAUX   v. WILKIE                                     5



                           DISMISSED
                             COSTS
    No costs.
