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Delisle v. McDonald

United States Court of Appeals, Federal Circuit

June 18, 2015

ERVIN N. DELISLE, Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

Appeal from the United States Court of Appeals for Veterans Claims in No. 12-3113, Judge Alan G. Lance, Sr.

WILLIAM BARRETT RAICH, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for claimant-appellant. Also represented by RONALD LEE SMITH, KARA F. STOLL.

JAMES SWEET, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by JOYCE BRANDA, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; DAVID J. BARRANS, LARA EILHARDT, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before PROST, Chief Judge, LOURIE, Circuit Judge, and GILSTRAP, District Judge.[*]

OPINION

Page 1373

Gilstrap, District Judge.

Claimant-appellant Ervin N. Delisle appeals the decision of the United States Court of Appeals for Veterans Claims in Delisle v. Shinseki, No. 12-3113(Vet. App. Feb. 26, 2014), denying appellant's application for an enhanced disability rating under 38 U.S.C. § 1110 and diagnostic code (" DC" ) 5257.[1] For the reasons stated below, we dismiss the appeal for lack of jurisdiction.

Background

Appellant Ervin N. Delisle served on active duty in the United States Army from 1952 to 1954. During that time, Mr. Delisle injured his left knee in a ski accident. In the years following that injury, Mr. Delisle also began to experience chronic pain in his right knee, and, in 1978, the Department of Veterans Affairs Regional Office (" RO" ) granted Mr. Delisle's claim for entitlement to a service connection for his right-knee disorder. The RO then assigned Mr. Delisle a 10 percent disability rating under DC 5003.[2]

Despite continued treatment, the condition of Mr. Delisle's right knee continued to deteriorate over time. On April 7, 2010, Mr. Delisle underwent a total right-knee replacement. Nine months prior to that procedure, on June 28, 2009, Mr. Delisle filed a claim seeking an increase to the 10 percent disability rating for his right knee.

The RO denied Mr. Delisle's claim for an increased rating. J.A. 265. However, while Mr. Delisle's appeal to the Board of Veterans Appeals (" Board" ) was pending, he underwent the total right-knee replacement discussed above. J.A. 191-95. As a result, the RO assigned Mr. Delisle a 100 percent disability rating for the period from April 7, 2010 to May 31, 2011, and assigned a 60 percent rating, along with a total disability rating based on individual employability for the period following May 31, 2011. On appeal to the Board, Mr. Delisle challenged only the RO's determination that he was not entitled to a disability rating of greater than 10 percent for the nine-month period from June 30, 2009 to April 6, 2010.

On June 28, 2010, the Board found that Mr. Delisle was not entitled to a disability rating of greater than 10 percent during the relevant time period. J.A. 14-23. Following a timely appeal, the Veterans Court affirmed the Board. J.A. 5-6.

Mr. Delisle now appeals to ...


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