Veteranclaims’s Blog

May 17, 2012

Duchesneau v. Shinseki, No. 2011-7112(Decided: May 17, 2012);Winn, 110 F.3d at 57, Appeal When Remand Disposes of an Important Legal Issue

Excerpt from decision below:
“Our cases have distinguished (1) situations where an
issue might be mooted by a failure to present sufficient
evidence on remand from (2) situations where the very
authority of the Veterans Court to remand might be
mooted by the remand itself. For example, in Myore, we
explained that the third Williams factor was not satisfied
despite the fact that the veteran “may win or lose on the
facts of her case without regard to the Veterans Court’s
interpretation of [statute] . . . .” Myore, 323 F.3d at 1352.3
That is to say, a failure to present sufficient evidence may
have mooted the issue regardless of the Veterans Court’s
interpretation of the statute, but that was not enough to
establish a substantial risk that the Veterans Court’s
interpretation would evade review. However, in both
Adams, 256 F.3d at 1321 and Stevens v. Principi, 289 F.3d
3 We also explained that “[i]f Myore loses before the
Board, and [the statute] is applied against her, and the
Board’s decision is affirmed by the Veterans Court, then
Myore may seek review of that court’s interpretation of
[the statute] . . . .” Myore, 323 F.3d at 1352
DUCHESNEAU v. DVA 8
814, 817 (Fed. Cir. 2002), we held that the third Williams
factor was satisfied because “the question of the authority
of the Veterans Court to order a remand might not survive
a remand, and, therefore, constituted an appealable
final decision.” Myore, 323 F.3d at 1353. See also Winn,
110 F.3d at 57 (holding that a remand is appealable only
“when the remand disposes of an important legal issue
that would be effectively unreviewable at a later stage of
litigation”). Put differently, in order to satisfy the third
Williams factor, “the appellant’s claim must be that he
has a legal right not to be subjected to a remand.” Donnellan
v. Shinseki, No. 2011-7127, slip op. at 7 (Fed. Cir.
Apr. 18, 2012).”
===========================

United States Court of Appeals
for the Federal Circuit
__________________________
RACQUEL S. DUCHESNEAU,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7112
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 09-1702, Judge Robert N. Davis.
__________________________
Decided: May 17, 2012
__________________________
LINDA J. THAYER, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, of Cambridge, Massachusetts,
argued for claimant-appellant. With her on the brief was
RONALD L. SMITH, of Washington, DC.
L. MISHA PREHEIM, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondentappellee.
With her on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director,
DUCHESNEAU v. DVA 2
and BRIAN M. SIMKIN, Assistant Director. Of counsel on
the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and LARA K. EILHARDT, Attorney,
United States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before LOURIE, LINN, and PROST, Circuit Judges.
PROST, Circuit Judge.
Racquel Duchesneau appeals a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”), which vacated and remanded a decision of the
Board of Veterans’ Appeals (“Board”) denying Ms.
Duchesneau’s request for an increased disability rating
for a service-connected right shoulder disability currently
evaluated as bursitis. Duchesneau v. Shinseki, No. 09-
1702 (Vet. App. Jan. 31, 2011). Because the decision of
the Veterans Court was not a final judgment, we dismiss
the appeal for lack of jurisdiction.
BACKGROUND
Ms. Duchesneau served on active duty in the United
States Army from July 1996 to January 1999. In April
2000, a Department of Veterans Affairs Regional Office
(“RO”) issued a rating decision granting Ms. Duchesneau
service connection for right shoulder bursitis with a 10%
disability rating under 38 C.F.R. § 4.71a, diagnostic code
(“DC”) 5203 (2010). In December 2003, Ms. Duchesneau
filed a claim for an increased disability rating, but the RO
denied her claim, maintaining that her right shoulder
bursitis merited only a 10% disability rating. Ms.
Duchesneau timely appealed that decision to the Board,
and on January 13, 2009, the Board sustained the RO’s
determination. The Board also considered, but ultimately
DUCHESNEAU v. DVA 3
rejected, the possibility of whether Ms. Duchesneau’s
limitation of motion in her right shoulder warranted a
rating under other DCs in § 4.71a, including DC 5201,
which provides disability ratings depending on limitation
of motion of the arm.
Ms. Duchesneau subsequently appealed the Board’s
decision to the Veterans Court, where she made two
arguments:1 (1) that the Board erred by failing to award
her an additional disability rating for limitation of motion
in her right shoulder under DC 5201; and (2) that the
Board erred by failing to award her not only one but two
separate 20% disability ratings under DC 5201 because
her right shoulder’s range of motion is limited on two
planes—flexion and abduction.2 In a January 31, 2011
decision, the Veterans Court rejected Ms. Duchesneau’s
claim for two separate disability ratings under DC 5201,
holding that the argument was “obviated and negated by
the [Veterans] Court’s recent decision in Cullen v. Shinseki,
24 Vet. App. 74 (2010).” Duchesneau, slip op. at 3.
In that case, the Veterans Court held that “within a
particular diagnostic code, a claimant is not entitled to
more than one disability rating for a single disability
unless the regulation expressly provides otherwise.” Id.
(quoting Cullen, 24 Vet. App. at 84). But after rejecting
Ms. Duchesneau’s claim for two separate disability ratings
under a single diagnostic code, the Veterans Court
1 Because Ms. Duchesneau did not contest the
Board’s finding that she is not entitled to a higher disability
rating under DC 5203, the Veterans Court deemed
that issue abandoned. Duchesneau, slip op. at 1, n.1.
2 The flexion plane is defined by the shoulder’s and
arm’s forward movement while the abduction plane is
defined by the shoulder’s and arm’s side movement. See
38 C.F.R. § 4.71 (2010) (Plate I).
DUCHESNEAU v. DVA 4
proceeded to set aside the Board’s decision as to a single
appropriate disability rating under DC 5201 and remanded
the case to the Board to clarify the precise extent
of her right shoulder limitation. Id. at 3-5. Ms. Duchesneau
now appeals the Veterans Court’s interpretation of
38 C.F.R. § 4.71a, DC 5201.
DISCUSSION
On appeal, Ms. Duchesneau argues that the Veterans
Court erred in holding that 38 C.F.R. § 4.71a, DC 5201
provides only a single disability rating for a single disability.
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.
The jurisdiction of this court to hear appeals from the
Veterans Court is limited by statute. Under 38 U.S.C. §
7292(a), this court may review “the validity of a decision
of the [Veterans Court] on a rule of law or of any statute
or regulation . . . or any interpretation thereof (other than
a determination as to a factual matter) that was relied on
by the [Veterans Court] in making the decision.” Section
7292(c) vests this court with exclusive jurisdiction “to
review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof
brought under this section, and to interpret constitutional
and statutory provisions, to the extent presented and
necessary to a decision.” While the statutory provision
that gives this court jurisdiction to review a decision of
the Veterans Court does not expressly premise our review
on the finality of the Veterans Court’s decision, we have,
nonetheless, “‘generally declined to review non-final
orders of the Veterans Court.’” Williams v. Principi, 275
F.3d 1361, 1363 (Fed. Cir. 2002) (quoting Adams v. Principi,
256 F.3d 1318, 1320 (Fed. Cir. 2001)). This finality
DUCHESNEAU v. DVA 5
rule serves several purposes: it “promot[es] efficient
judicial administration,” “emphasize[s] the deference that
appellate courts owe to the trial judge,” and “reduces
harassment of opponents and the clogging of the courts
through successive appeals.” Williams, 275 F.3d at 1364
(citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 374 (1981)). Moreover, “[t]he mere fact 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—does not render that
decision final.” Myore v. Principi, 323 F.3d 1347, 1352
(Fed. Cir. 2003).
Our decision in Williams provides a limited exception
to the general rule that remand orders are not appealable.
We will depart from the strict rule of finality when a
veteran establishes: (1) the Veterans Court issued 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 issue adversely affects the party
seeking review; and (3) 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. This exception to the finality rule is narrow.
Jones v. Nicholson, 431 F.3d 1353, 1358 & n.3 (Fed. Cir.
2005) (noting that the Supreme Court has emphasized
that departures from the finality rule should occur “‘only
when observance of it would practically defeat the right to
any review at all’” (quoting Flanagan v. United States,
465 U.S. 259, 263 (1984))); Conway v. Principi, 353 F.3d
1369, 1374 (Fed. Cir. 2004) (explaining that the Williams
conditions are met only in rare circumstances); Adams,
DUCHESNEAU v. DVA 6
256 F.3d at 1321 (noting that the finality rule should only
give way in “unusual circumstances”).
In the present case, the parties agree that Ms.
Duchesneau satisfies the first two Williams factors. Ms.
Duchesneau argues that the third Williams factor is also
satisfied because “if the Board finds in Ms. Duchesneau’s
favor on remand for the higher disability rating, Ms.
Duchesneau will not be able to file a second appeal and
reassert her claim for separate disability ratings for
limitation of abduction and flexion.” Ms. Duchesneau is
mistaken. If the Board grants Ms. Duchesneau a 20%
disability rating under DC 5201, it must apply the law of
the case and deny two separate disability ratings under
DC 5201, even if the Board finds that Ms. Duchesneau’s
right shoulder is indeed limited in both planes. Consequently,
Ms. Duchesneau will still be adversely affected
by the Board’s decision to limit her to just one rating.
After completion of the remand proceedings and entry of a
final judgment, Ms. Duchesneau is free to file a second
appeal and raise her argument regarding the Veterans
Court’s interpretation of § 4.71a. See Myore, 323 F.3d at
1351-52; Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997).
Moreover, Ms. Duchesneau’s appeal to this court “may
raise any objections to the judgment that was entered [by
the Veterans Court], whether the errors arose from the
original [Veterans Court’s] decision or the second and
final decision.” Joyce v. Nicholson, 443 F.3d 845, 850
(Fed. Cir. 2006).
To be sure, Ms. Duchesneau currently has no disability
rating under DC 5201. Indeed, she contends that
there is a substantial risk that on remand the Board will
continue to find that the evidence does not support a
disability rating for either her abduction limitation or her
flexion limitation, or both. Under these scenarios, Ms.
DUCHESNEAU v. DVA 7
Duchesneau argues that the remand would moot the issue
of whether she is entitled to two disability ratings under
DC 5201. This argument does not, however, rise to the
level of a substantial risk that the Veterans Court’s
interpretation of § 4.71a would evade review. On remand,
Ms. Duchesneau may present evidence that she is entitled
to a disability rating under DC 5201 for her serviceconnected
limitation of motion in her right shoulder. And
Ms. Duchesneau is correct that she may lose on the facts
she presents without regard to the Veterans Court’s
interpretation of § 4.71a. That uncertainty alone, however,
is not enough to create a substantial risk that the
Veterans Court’s interpretation of § 4.71a would evade
review.
Our cases have distinguished (1) situations where an
issue might be mooted by a failure to present sufficient
evidence on remand from (2) situations where the very
authority of the Veterans Court to remand might be
mooted by the remand itself. For example, in Myore, we
explained that the third Williams factor was not satisfied
despite the fact that the veteran “may win or lose on the
facts of her case without regard to the Veterans Court’s
interpretation of [statute] . . . .” Myore, 323 F.3d at 1352.3
That is to say, a failure to present sufficient evidence may
have mooted the issue regardless of the Veterans Court’s
interpretation of the statute, but that was not enough to
establish a substantial risk that the Veterans Court’s
interpretation would evade review. However, in both
Adams, 256 F.3d at 1321 and Stevens v. Principi, 289 F.3d
3 We also explained that “[i]f Myore loses before the
Board, and [the statute] is applied against her, and the
Board’s decision is affirmed by the Veterans Court, then
Myore may seek review of that court’s interpretation of
[the statute] . . . .” Myore, 323 F.3d at 1352
DUCHESNEAU v. DVA 8
814, 817 (Fed. Cir. 2002), we held that the third Williams
factor was satisfied because “the question of the authority
of the Veterans Court to order a remand might not survive
a remand, and, therefore, constituted an appealable
final decision.” Myore, 323 F.3d at 1353. See also Winn,
110 F.3d at 57 (holding that a remand is appealable only
“when the remand disposes of an important legal issue
that would be effectively unreviewable at a later stage of
litigation”). Put differently, in order to satisfy the third
Williams factor, “the appellant’s claim must be that he
has a legal right not to be subjected to a remand.” Donnellan
v. Shinseki, No. 2011-7127, slip op. at 7 (Fed. Cir.
Apr. 18, 2012).
In this case, Ms. Duchesneau does not question the
authority of the Veterans Court to remand. Rather, she
asserts that the remand proceedings should be conducted
under a different interpretation of § 4.71a than that
ordered by the Veterans Court. That Ms. Duchesneau
may lose before the Board without regard to the Veterans
Court’s interpretation of § 4.71a does not, however, create
a substantial risk that the Veterans Court’s interpretation
of § 4.71a would evade review. Were we to hold
otherwise and “accept [Ms. Duchesneau’s] framing of the
exception to the rule against review of remand orders, the
exception would swallow the rule.” Donnellan, slip op. at
8. The Veterans Court’s remand is, therefore, not a final
appealable order.
DUCHESNEAU v. DVA
9
CONCLUSION
Because Ms. Duchesneau’s appeal does not present
any issues that would evade further review by this court
and because Ms. Duchesneau has not appealed from a
final order or judgment, we dismiss the appeal for lack of
jurisdiction.
COSTS
Each party shall bear its own costs.
DISMISSED

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