Veteranclaims’s Blog

April 18, 2012

Donnellan v. Shinseki, No. 2011-7127(Decided: April 18, 2012), Review of Remands by Veterans Court, Williams, 275 F.3d at 1364

Excerpt from decision below:
Mr. Donnellan argues (1) that the Veterans Court’s ruling on the statutory presumption issue is a clear and final decision on the merits of his claim that will
DONNELLAN v. DVA 6

govern the remand proceedings, (2) that it adversely affects him because it increases the evidentiary burden on him before the Board, and (3) that it may not survive remand. See Williams, 275 F.3d at 1364.
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“In particular, our cases establish that it is not enough that the Veterans Court “as part of a remand decision may have made an error of law that will govern the remand proceeding—even one that, if reversed, would lead to a decision in favor of the claimant.” Myore v. Principi, 323 F.3d 1347, 1352 (Fed. Cir. 2003). Rather,
the legal issue in question must be one that would be effectively unreviewable at a later stage in the litigation. Id. The risk that a decided issue will not survive a remand does not include the possibility that the appellant will prevail on remand and therefore will not need to take another appeal. See id. at 1351-52 (test for whether issue may evade review is whether, if the claimant loses on
DONNELLAN v. DVA 7

remand, the claimant will not be able to raise the issue on
appeal from an adverse final judgment); Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). Rather, the remand action itself must “independently violate the rights of the veteran, for example, where a remand would be barred by statute.” Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006). That is, the appellant’s claim must be that he has a legal right not to be subjected to a remand. In such a
case, the appellant’s argument that he has a right not to be forced to undergo a remand would necessarily and forever be lost if the case is remanded without an opportunity for appellate review of his claim.

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Because this is not a case in which the veteran’s claim is that he has a legal right not to be forced to undergo a remand, we hold that the remand order in this case falls within the category of nonfinal orders that we decline to review.
======================
United States Court of Appeals
for the Federal Circuit
__________________________
KEVIN T. DONNELLAN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7127
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 07-2041, Chief Judge Bruce
E. Kasold.
___________________________
Decided: April 18, 2012
___________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
DOMENIQUE G. KIRCHNER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United State Department
of Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of
DONNELLAN v. DVA 2
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and JONATHAN TAYLOR,
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, BRYSON and LINN, Circuit
Judges.
BRYSON, Circuit Judge.
Kevin T. Donnellan appeals the decision of the Court
of Appeals for Veterans Claims (“the Veterans Court”),
which remanded his case to the Board of Veterans’ Appeals.
Because the remand order of the Veterans Court
does not fall into the narrow exception to our rule against
review of remand orders, we dismiss the appeal.
I
Mr. Donnellan served in the Army National Guard
from October 1969 through February 2000. In 1996, he
underwent surgery to remove a portion of his sigmoid
colon as part of his treatment for colon cancer. In March
1998, after a diagnosis of acquired polyposis, he had a
total colectomy.
As part of his Army National Guard duty, Mr. Donnellan
participated in “active duty for training” from May
30, 1998, through June 5, 1998. On June 3, 1998, while
he was on active duty for training, Mr. Donnellan developed
a fever, chills, and severe abdominal pain. He was
taken to a local hospital where he underwent emergency
surgery to remove a portion of his small intestine because
of a small bowel perforation. On the fourth day after the
surgery, Mr. Donnellan’s doctors became aware of a small
bowel fistula, which they treated.
DONNELLAN v. DVA 3

Mr. Donnellan subsequently applied to the Department
of Veterans Affairs (“DVA”) for disability benefits
for a perforated small intestine and ensuing complications.
In the course of proceedings on his claim, the
Board of Veterans’ Appeals directed the regional office to
obtain medical opinions on certain issues, including
whether his condition following his colectomy “underwent
a permanent increase in severity beyond its natural
progression” during his period of active duty for training.
The regional office denied service connection for Mr.
Donnellan’s disability, relying on an examination report
from a DVA physician who characterized Mr. Donnellan’s
fistula as a “complication of his multiple surgical procedures.”
On appeal, the Board found that the DVA physician’s
report did not provide “adequate responses to the
questions posed by the Board.” The Board therefore
requested an independent medical opinion from another
physician, Dr. Debra Ford, as to whether Mr. Donnellan’s
“status post colectomy residuals under[went] a permanent
increase in severity beyond its natural progression”
during his active duty for training. Dr. Ford characterized
the Board’s question as “somewhat confusing,” but
stated that Mr. Donnellan’s active duty for training did
not cause “the return of [his] fistulous disease.” She
added, however, that in her opinion “he probably returned
to duty too early.”
In a March 2007 decision, the Board of Veterans’ Appeals
denied Mr. Donnellan’s request for benefits. The
Board began by applying the presumption embodied in 38
U.S.C. § 1153 that a disability is aggravated, for purposes
of establishing service connection, if there is an increase
in the level of the disability during a veteran’s service.
That presumption, the Board held, applied to Mr. Donnellan’s
period of active duty for training. The Board noted,
DONNELLAN v. DVA 4

however, that the statutory presumption can be rebutted
by clear and unmistakable evidence that the increase in
disability was due to the natural progression of the disease.
38 C.F.R. § 3.306(b). After reviewing the record,
the Board determined that there was clear and unmistakable
evidence that Mr. Donnellan’s disease and the
ensuing complications did not increase in severity beyond
their natural progression during his period of active duty
for training.
Mr. Donnellan appealed the Board’s decision to the
Veterans Court. He argued (1) that the Board improperly
found that the presumption of aggravation was rebutted
by the evidence of record, and (2) that the Board failed to
ensure compliance with its remand instructions, because
Dr. Ford had not answered the question posed to her.
As to the first issue, the Veterans Court held that the
statutory presumption of aggravation does not apply to an
increase in the degree of a disability suffered by a member
of the National Guard while on active duty for training.
The court explained that because Mr. Donnellan had
never served on active duty in the military, but was only
on active duty for training, he had to establish his status
as a veteran in order to be entitled to disability benefits.
By statute, a “veteran” is a person who has served in
“active military, naval, or air service.” 38 U.S.C. § 101(2).
“Active duty for training” is considered “active military,
naval, or air service,” but only if the person “was disabled
or died from a disease or injury incurred or aggravated in
line of duty.” 38 U.S.C. § 101(24)(B). The court held that
to establish his status Mr. Donnellan needed to show both
that his disability increased during active duty for training
and that the increase was beyond the natural progression
of the disease. In making that showing, according to
DONNELLAN v. DVA 5

the court, Mr. Donnellan was not entitled to the statutory
presumption of aggravation.
As to the second issue, the court agreed with Mr.
Donnellan that Dr. Ford’s medical opinion did not satisfy
the Board’s instructions on remand. The court therefore
remanded the case to the Board to obtain a medical
opinion addressing the Board’s prior remand order.
II
On appeal, Mr. Donnellan argues that the Veterans
Court erred in holding that he was not entitled to the
statutory presumption of aggravation in attempting to
show that he qualified as a “veteran.” The government
defends the Veterans Court’s decision, but first argues
that this court should dismiss the appeal because the
Veterans Court’s decision is not final.
Generally, we decline to review non-final orders of the
Veterans Court, including remand orders. See Adams v.
Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001). Mr. Donnellan
acknowledges that the Veterans Court’s remand
order is not a final decision. He contends that we should
reach the merits of his appeal, however, as this case falls
within an exception to the rule that we review only final
decisions of the Veterans Court. See Williams v. Principi,
275 F.3d 1361, 1364 (Fed. Cir. 2002) (setting out the
circumstances in which this court will entertain appeals
from non-final orders of the Veterans Court).
Tracking the criteria we have used to determine whether to entertain appeals from remand orders of the Veterans Court, Mr. Donnellan argues (1) that the Veterans Court’s ruling on the statutory presumption issue is a clear and final decision on the merits of his claim that will
DONNELLAN v. DVA 6

govern the remand proceedings, (2) that it adversely affects him because it increases the evidentiary burden on him before the Board, and (3) that it may not survive remand. See Williams, 275 F.3d at 1364. As to the last of those points, he contends that he may be able to meet the burden imposed by the Veterans Court and prevail on his claim; if he does, the legal issue he seeks to present to this
court will not reach this court in his case.
We reject Mr. Donnellan’s reasoning and hold that the Veterans Court’s decision falls within the class of remand orders that we decline to review because they are not final. In this case, as in many others, the question whether we will review the remand order from the Veterans Court comes down to the third factor set forth in
Williams—whether there is “a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.” Williams, 275 F.3d at 1364. Several of our cases have fleshed out the meaning of that factor, and in so doing they have made clear that we will not review a remand order such as the
one in this case.
In particular, our cases establish that it is not enough that the Veterans Court “as part of a remand decision may have made an error of law that will govern the remand proceeding—even one that, if reversed, would lead to a decision in favor of the claimant.” Myore v. Principi, 323 F.3d 1347, 1352 (Fed. Cir. 2003). Rather,
the legal issue in question must be one that would be effectively unreviewable at a later stage in the litigation. Id. The risk that a decided issue will not survive a remand does not include the possibility that the appellant will prevail on remand and therefore will not need to take another appeal. See id. at 1351-52 (test for whether issue may evade review is whether, if the claimant loses on
DONNELLAN v. DVA 7

remand, the claimant will not be able to raise the issue on
appeal from an adverse final judgment); Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). Rather, the remand action itself must “independently violate the rights of the veteran, for example, where a remand would be barred by statute.” Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006). That is, the appellant’s claim must be that he has a legal right not to be subjected to a remand. In such a
case, the appellant’s argument that he has a right not to be forced to undergo a remand would necessarily and forever be lost if the case is remanded without an opportunity for appellate review of his claim.

Our cases have applied that principle in a variety of
settings. For example, in Adams we reviewed a remand
order because the veteran claimed that he had a right to
judgment without a remand, and “the order of the Veterans
Court requiring him to undergo a remand before
obtaining appellate relief would defeat the very right he
asserts, i.e., his right to an immediate judgment without
the necessity of a remand.” 256 F.3d at 1321.
Likewise, in Stevens v. Principi, 289 F.3d 814, 817
(Fed. Cir. 2002), this court entertained an appeal from a
remand order because the claimant argued that the
remand was “ordered for a prohibited purpose” and that
he was “entitled to a decision in his favor without the
need for a remand.” In that case, we held that the appeal
fell within the exception to the rule against entertaining
non-final orders because the appellant’s claim was that
the remand order adversely affected him “by violating his
right to an immediate decision on his claim,” id., a right
that, if he was correct in his assertion, would be lost by
the very act of remanding.
DONNELLAN v. DVA 8

In Byron v. Shinseki, 670 F.3d 1202 (Fed. Cir. 2012),
we reiterated the requirements for finding that a case
falls within the exception to the rule regarding non-final
appeals. The Veterans Court in that case made a legal
determination that it did not have the authority to consider
evidence and make factual findings in the first
instance when the Board had failed to do so. The court
therefore remanded the case to the Board to make such
findings. We addressed the issue of the Veterans Court’s
authority because, if we had not, the veteran’s claim that
the Veterans Court has the legal authority to make factual
findings in the first instance would never have been
subject to review, regardless of whether the veteran had
won or lost in the remand proceedings before the Board.
In this case, Mr. Donnellan’s argument is not that he
has a legal right not to undergo a remand, but rather that
the remand proceedings should be conducted under a
different legal standard than that ordered by the Veterans
Court. As such, this is a classic case of a non-final
order: Even if we were to address the merits and uphold
Mr. Donnellan’s legal claim, the case would still have to
be remanded for further proceedings under that standard.
For that reason, this case does not fit into the exception to
our rule against entertaining appeals from non-final
orders of the Veterans Court. Instead, it is a case like
many others in which remand proceedings have been
ordered under standards that the appellant does not
agree with.
Were we to accept Mr. Donnellan’s framing of the exception
to the rule against review of remand orders, the
exception would swallow the rule. Because our review of
decisions of the Veterans Court is typically limited to
legal issues, 38 U.S.C. § 7292(d)(2), remand orders that
we are asked to review are generally those in which the
DONNELLAN v. DVA 9

Veterans Court has decided a legal issue that will govern
the remand proceedings. And in virtually any case that is
remanded, it is possible that the veteran will win even
under the legal standard adopted by the Veterans Court.
(Otherwise, why the remand?) Because this is not a case
in which the veteran’s claim is that he has a legal right
not to be forced to undergo a remand, we hold that the
remand order in this case falls within the category of nonfinal
orders that we decline to review.

No costs.
DISMISSED

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