Veteranclaims’s Blog

July 20, 2022

FedCir Application; Veterans Court remand orders; Williams v. Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002); [R]emand orders from the Veterans Court ordinarily are not appealable because they are not final.” Adams v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001);

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit


BRIAN J. DAVIS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-1904


Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-6444, Judge Amanda L. Meredith.


Decided: July 20, 2022


KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
SARAH E. KRAMER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY, LOREN MISHA PREHEIM; Y. KEN LEE, DEREK
Case: 21-1904 Document: 38 Page: 1 Filed: 07/20/2022
2 DAVIS v. MCDONOUGH
SCADDEN, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.


Before MOORE, Chief Judge, PROST and HUGHES, Circuit
Judges.
MOORE, Chief Judge.
Brian Davis appeals an order from the Court of Appeals
for Veterans Claims (Veterans Court) remanding to
the Board of Veterans’ Appeals (Board) for additional evidentiary
development and for the Board to interpret certain
ratings criteria found in 38 C.F.R. § 4.114, Diagnostic
Code (DC) 7346. Because the Veterans Court’s remand order
was not a final decision, we dismiss.
BACKGROUND
Mr. Davis served on active duty in the United States
Marine Corps from January 1984 to January 1988. In
2016, he filed a claim for disability compensation for gastroesophageal
reflux disease (GERD) with the Department
of Veterans Affairs (VA). The VA Regional Office (RO) assigned
Mr. Davis a 10% disability rating pursuant to DC 7346. Mr. Davis filed a Notice of Disagreement, and the
VA conducted a second medical examination in October
2018 to reassess Mr. Davis’ symptoms. The medical examiner
opined that Mr. Davis’ GERD was not a “considerable
impairment of health,” as required by DC 7346 for a disability
rating higher than 10%, but did not provide any rationale
for that conclusion. The RO then issued a
Statement of the Case denying Mr. Davis’ request for a
higher rating. The Board affirmed.
Mr. Davis appealed to the Veterans Court, arguing
that the medical examiner’s opinion was insufficient and
requesting that the Veterans Court define “considerable
impairment of health” and “severe impairment of health”
in DC 7346, which the Board had not done. The Veterans
Case: 21-1904 Document: 38 Page: 2 Filed: 07/20/2022
DAVIS v. MCDONOUGH 3
Court agreed the Board clearly erred by relying on the examiner’s
unsupported opinion and remanded for it to obtain
an adequate medical opinion. Davis v. Tran, No. 19-
6444, 2021 WL 266550, at *3 (Vet. App. Jan. 27, 2021).
However, it declined to define the ratings criteria and instead
remanded for the Board to do so in the first instance.
Id. at *4. Mr. Davis appeals the Veterans Court’s remand
order, asserting that he was entitled to a pre-remand construction
of DC 7346 by the Veterans Court.
DISCUSSION
[R]emand orders from the Veterans Court ordinarily
are not appealable because they are not final.” Adams v.
Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001)
. This avoids
“unnecessary piecemeal appellate review without precluding
later appellate review of the legal issue or any other
determination made on a complete administrative record.”
Cabot Corp. v. United States, 788 F.2d 1539, 1543 (Fed. Cir.
1986). Under narrow and rare circumstances, however, review
of a remand order may be appropriate. We may review
a remand order from the Veterans Court
only if three conditions are satisfied: (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 affect 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.
Williams v. Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002).
The Veterans Court’s remand order is not a clear and
final decision of a legal issue and thus is not reviewable
under the Williams exception. A remand order instructing
Case: 21-1904 Document: 38 Page: 3 Filed: 07/20/2022
4 DAVIS v. MCDONOUGH
a lower tribunal to interpret a regulation is not a final decision
of any legal issue. Cf. Ebel v. Shinseki, 673 F.3d
1337, 1341 (Fed. Cir. 2012) (dismissing appeal where veteran
did “not allege that the remand order misinterprets
any statutory or regulatory language”). The Veterans
Court merely exercised its authority under 38 U.S.C.
§ 7252(a) to “remand the matter, as appropriate” for the
Board to construe DC 7346 in the first instance on a more
developed record. Davis, 2021 WL 266550, at *4. To the
extent Mr. Davis disagrees with the interpretation the
Board provides on remand, he may seek appellate review
by the Veterans Court and, if necessary, this Court. The
Veterans Court’s order instructing the Board to construe
certain terms thus did not finally resolve the legal issue of
DC 7346’s interpretation.
Nor is there any indication the Veterans Court’s remand
order has or will adversely affect Mr. Davis. On remand,
the Board may well adopt a construction of DC 7346
that favors Mr. Davis. Moreover, the remand will allow
Mr. Davis to further develop the evidentiary record supporting
his claim, including by obtaining a new medical examination.
And, as explained above, to the extent the
Board’s decision on remand is unfavorable, Mr. Davis can
appeal that decision. Any adverse effect is thus entirely
speculative.
Mr. Davis contends that the Veterans Court’s decision
will adversely affect him because it will result in a Board
interpretation subject to Auer deference.1 But this argument,
too, asserts only speculative adverse effects. It
1 Mr. Davis also argues the remand order deprives
him of fair process because he will be unable to effectively
participate in pursuing his claim in the absence of a construction
of DC 7346. Because we determine the Veterans
Court’s decision did not finally resolve a legal issue, we
need not address Mr. Davis’ fair-process argument.
Case: 21-1904 Document: 38 Page: 4 Filed: 07/20/2022
DAVIS v. MCDONOUGH 5
assumes not only that the Board’s interpretation will disfavor
Mr. Davis, but also that it will be entitled to Auer
deference. The Board’s interpretation will receive Auer
deference only if DC 7346 is genuinely ambiguous and only
if the interpretation is reasonable. Kisor v. Wilkie, 139 S.
Ct. 2400, 2414 (2019). Even then, it will not receive Auer
deference unless it “reflect[s] [the VA’s] authoritative, expertise-
based, fair, or considered judgment.” Id. (internal
quotation marks and alterations omitted). That issue has
not yet been decided. Thus, Mr. Davis’ assertion that the
Board’s interpretation will enjoy Auer deference, and any
harm allegedly arising from such deference, is mere conjecture.
CONCLUSION
The Veterans Court’s remand order does not satisfy the
narrow Williams exception permitting review of non-final
orders. We therefore dismiss Mr. Davis’ appeal.
DISMISSED
COSTS
No costs.
Case: 21-1904 Document: 38 Page: 5 Filed: 07/20/2022

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