Veteranclaims’s Blog

October 10, 2013

Federal Circuit: Tyrues v. Shinseki, No. 2013-7007, Decided: October 10, 2013; 38 U.S.C. § 7266(a); Appellate Rights; Oversight for Systemic Efficiency

Excerpts from decision below:

Dissent by by Circuit Judge NEWMAN.TARANTO, Circuit Judge:

Today’s ruling contravenes the Court’s advice to apply §7266(a) as neither mandatory nor jurisdictional, and to assure orderly litigation procedures, avoiding harsh or unfair consequences to veterans. Henderson, 131 S. Ct. at 1204. From my colleague’s ruling that the veteran must take an interlocutory appeal or forfeit appeal of that aspect, I respectfully dissent.”
============================

“… Mr. Tyrues asked the Veterans Court to review both the April 2004 denial under section 1117 and the September 1998 denial under section
1110. The Veterans Court dismissed the part of his appeal that challenged the September 1998 Board decision, ruling that Mr. Tyrues (a) missed the 120-day deadline for appealing that decision, 38 U.S.C. § 7266(a), and
(b) presented no basis for equitable tolling under Henderson v. Shinseki, 131 S. Ct. 1197 (2011). Concluding that the Veterans Court correctly interpreted 38 U.S.C. § 7266(a), we now affirm, as we did when the Veterans
Court earlier reached the same untimeliness decision, before Henderson, without considering equitable tolling.”
==========================

“Neither party disputes that a veteran can immediately appeal a mixed Board decision—a decision that definitively denies benefits on one statutory ground while remanding for consideration of entitlement to benefits on another ground. The statute supports that position.”
=========================

“This interpretation of section 7266(a) favors the veteran in at least two ways. First, it enables the veteran simply to follow express and unequivocal appealability directives from the Board, whose obligation in this setting, as elsewhere in the Title 38 scheme, is to do all it
can to provide clear guidance as to what it expects of the veteran. Uncertainty as to finality can both encourage premature attempts to appeal the unappealable and cause the failure to appeal the appealable. Predicating
appealability on the Board’s unambiguous instructions provides clarity. The Veterans Court thus did not rely on an incorrect rule of law in founding jurisdiction on a clear Board appealability statement, without resolving a dispute about whether Mr. Tyrues had one or more than one “claim”—a term that is in Rule 54(b) but not in section 7266(a). Tyrues, 23 Vet. App. at 172. Second, allowing the immediate appeal, subject to Veterans Court determinations of reasons not to proceed, makes possible quick
correction of erroneous denials, see Elkins, 229 F.3d at 1375, while permitting oversight for systemic efficiency, as this court explained in its earlier, now-vacated decision in this case. Tyrues, 631 F.3d at 1384.”
========================

United States Court of Appeals for the Federal Circuit
______________________
LARRY G. TYRUES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7007
______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 04-584.
______________________
Decided: October 10, 2013
______________________
MARK R. LIPPMAN, The Veterans Law Group, of La Jolla, California, argued for claimant-appellant.
MARTIN F. HOCKEY, JR., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were STUART F. DELERY, Principal Deputy Assistant Attorney General, JEANNE E. DAVIDSON, Director, and TODD M. HUGHES, Deputy Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and MARTIE
ADELMAN, Attorney, United States Department of Veterans Affairs, of Washington, DC.
L A R R Y T Y R U E S v . S H I N S E K I 2
______________________
Before NEWMAN, LOURIE, and TARANTO, Circuit
Judges.

Opinion for the court filed by Circuit Judge TARANTO.

Dissenting opinion filed by Circuit Judge NEWMAN.
TARANTO, Circuit Judge.

Larry G. Tyrues, a veteran of the United States Army who served in the Persian Gulf, sought disability benefits under two different standards. In September 1998, the Board of Veterans’ Appeals rejected his claim to benefits under 38 U.S.C. § 1110, because his lung condition lacked
the required service connection, but remanded to the Department of Veterans’ Affairs Regional Office for further consideration of whether his chronic symptoms manifested Persian Gulf Syndrome, which might have
entitled him to benefits under standards then in regulations but soon enacted as 38 U.S.C. § 1117. Mr. Tyrues did not appeal to the Court of Appeals for Veterans Claims from the Board’s September 1998 decision until
more than 5 years later.
In April 2004, after the remand, the Board decided that Mr. Tyrues was not entitled to benefits pursuant to section 1117. At that point, Mr. Tyrues asked the Veterans Court to review both the April 2004 denial under section 1117 and the September 1998 denial under section 1110. The Veterans Court dismissed the part of his appeal that challenged the September 1998 Board decision, ruling that Mr. Tyrues (a) missed the 120-day deadline
for appealing that decision, 38 U.S.C. § 7266(a), and (b) presented no basis for equitable tolling under Henderson v. Shinseki, 131 S. Ct. 1197 (2011). Concluding that the Veterans Court correctly interpreted 38 U.S.C.
§ 7266(a), we now affirm, as we did when the Veterans Court earlier reached the same untimeliness decision, before Henderson, without considering equitable tolling.

L A R R Y T Y R U E S v . S H I N S E K I 3

See Tyrues v. Shinseki, 631 F.3d 1380 (Fed. Cir.), vacated
and remanded in light of Henderson, 132 S. Ct. 75 (2011).

BACKGROUND
Mr. Tyrues served his country in the United States Army in the Persian Gulf from November 1990 to May 1991. In March 1995, shortly after being hospitalized for pneumonia, Mr. Tyrues sought benefits for a lung disability
pursuant to 38 U.S.C. § 1110, which provides for payment of compensation based on disabilities that result from a personal injury suffered or disease contracted in the line of duty. A veteran entitled to receive benefits under section 1110 is said to have a disability with a direct service connection.
While his entitlement to disability benefits under section 1110 was pending, Mr. Tyrues appeared at a hearing before a Board member to discuss the condition of his lungs. During the hearing, Mr. Tyrues said that other
soldiers who had served in the Persian Gulf were experiencing
chronic medical symptoms similar to his. The Board member responded that “[t]hat’s not really relevant” under section 1110 but that Mr. Tyrues should
“certainly file a claim” seeking benefits for Persian Gulf Syndrome under standards, then embodied in regulations but about to be codified in section 1117, that afford a presumption of service connection in certain circumstances.
Six days later, Mr. Tyrues amended his claim for disability benefits to identify chronic symptoms associated with Persian Gulf Syndrome, including aching joints, memory loss, and a stomach condition.
In September 1998, the Board denied Mr. Tyrues disability compensation under section 1110. The entirety of the “Order” section of the decision stated: “The claim for entitlement to service connection for a lung disorder on a direct basis is denied.” In the distinct “Remand” portion
of its decision, the Board sent Mr. Tyrues’s case back to the Regional Office for additional development of evidence
L A R R Y T Y R U E S v . S H I N S E K I 4

on whether Mr. Tyrues’s “chronic disorder manifested by
shortness of breath, due to undiagnosed illness,” was
entitled to a presumptive service connection as Persian
Gulf Syndrome.
The Board decision informed Mr. Tyrues of his appellate
rights:
NOTICE OF APPELLATE RIGHTS: Under 38
U.S.C.A. § 7266 . . . , a decision of the Board of
Veterans’ Appeals granting less than the complete
benefit, or benefits, sought on appeal is appealable
to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice
of the decision . . . . Appellate rights do not attach
to those issues addressed in the remand portion of
the Board’s decision, because a remand is in the
nature of a preliminary order and does not constitute
a decision of the Board on the merits of your
appeal.
The Board also attached a separate notice of appellate
rights, which told Mr. Tyrues:
The attached decision by the Board . . . is the final
decision for all issues addressed in the “Order”
section of the decision. The Board may also
choose to remand an issue or issues to the local
VA office for additional development. If the Board
did this in your case, then a “Remand” section follows
the “Order.” However, you cannot appeal an
issue remanded to the local VA office because a
remand is not a final decision. The advice below
on how to appeal a claim applies only to issues
that were allowed, denied, or dismissed in the
“Order.”
(Emphasis in original.) The notice informed Mr. Tyrues of
how to appeal and said:
LARRY T Y R U E S v . S H I N S E K I 5

You have 120 days from the date this decision was
mailed to you . . . to file a Notice of Appeal with
the United States Court of Appeals for Veterans
Claims.
Mr. Tyrues did not file an appeal within 120 days.
In April 2004, the Board decided that Mr. Tyrues was
not entitled to section 1117’s presumption of service
connection for Persian Gulf veterans. Mr. Tyrues then
sought review in the Veterans Court of both the April
2004 denial of benefits under section 1117 and the September
1998 denial of benefits under section 1110.
In November 2005, the Veterans Court affirmed the
April 2004 decision but held that it lacked jurisdiction to
review the Board’s September 1998 decision because, as
to that decision, Mr. Tyrues failed to comply with the
mandate of 38 U.S.C. § 7266(a) that a veteran “shall file a
notice of appeal with the Court within 120 days after the
date on which notice of the decision is mailed.” Tyrues v.
Nicholson, 20 Vet. App. 231 (2005). After this court
remanded for reconsideration on the Secretary’s motion,
Tyrues v. Peake, 273 F. App’x 921 (Fed. Cir. 2008), the
Veterans Court, acting en banc, again dismissed Mr.
Tyrues’s appeal of the Board’s September 1998 decision
for lack of jurisdiction. Tyrues v. Shinseki, 23 Vet. App.
166 (2009). This court then affirmed the Veterans Court.
Tyrues v. Shinseki, 631 F.3d 1380 (Fed. Cir. 2011).
A few weeks later, the Supreme Court held in Henderson
v. Shinseki that the 120-day filing deadline in
section 7266(a), though “an important procedural rule,”
“does not have jurisdictional attributes.” 131 S. Ct. 1197,
1206 (2011). The Supreme Court then granted Mr.
Tyrues’s petition for certiorari, vacated this court’s judgment,
and remanded for further consideration in light of
Henderson. Tyrues v. Shinseki, 132 S. Ct. 75 (2011). This
court in turn vacated the Veterans Court’s judgment and
remanded for consideration of whether the non
LARRY TYRUES v . SHINSEKI 6

jurisdictional nature of section 7266(a) should lead to a
different result. Tyrues v. Shinseki, 467 F. App’x 889, 890
(Fed. Cir. 2012). The Veterans Court thereafter held that
it still must dismiss the appeal from the September 1998
decision, because Mr. Tyrues advanced no basis for equitable
tolling of the 120-day clock in his case. Tyrues v.
Shinseki, 26 Vet. App. 31, 33-34 (2012).
Mr. Tyrues timely petitioned this court for review of
the Veterans Court’s decision under 38 U.S.C. § 7292(a).

DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is limited. See 38 U.S.C. § 7292. We have
jurisdiction to decide appeals insofar as they challenge
the validity of a decision of the Veterans Court with
respect to a rule of law, including the interpretation or
validity of any statute or regulation. Id. § 7292(a), (d)(1).
We do not have jurisdiction to review a challenge to a
factual determination or a challenge to a law or regulation
as applied to the facts of a particular case where, as
here, the challenge presents no constitutional issue. Id.
§ 7292(d)(2).
Mr. Tyrues’s appeal presents two related issues of
statutory interpretation: When the Board has clearly
rejected a request for benefits under one statutory standard
and designated that rejection as subject to immediate
appeal, while separately remanding the matter for consideration
of the claimant’s request for benefits on other
statutory grounds, (1) can the denial be appealed immediately,
i.e., without waiting for completion of the remand,
and (2) must the denial be appealed immediately, i.e.,
within the 120 days specified in section 7266(a), in the
absence of equitable tolling? In our earlier decision, now
vacated, we addressed and answered affirmatively the
same questions, though without the equitable-tolling
qualifier: “whether the non-remanded portion of a mixed
decision from the Board is final for the purposes of
L A R R Y T Y R U E S v . S H I N S E K I 7

§ 7266(a) and must be appealed within 120 days from the
date of judgment.” 631 F.3d at 1383. We see no basis for
now reaching a different conclusion, subject only to the
addition of the Henderson-based equitable-tolling qualifier.
With no issue before us on the case-specific matter of
inapplicability of equitable tolling to Mr. Tyrues, we
therefore affirm.

A
Neither party disputes that a veteran can immediately appeal a mixed Board decision—a decision that definitively denies benefits on one statutory ground while remanding for consideration of entitlement to benefits on another ground. The statute supports that position.
Section 7266(a) provides for “review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans’ Appeals.” A decision of the Board is an order that either grants or denies benefits sought by the
veteran. See id. § 7104(d) (requiring that each “decision” of the Board either “grant[] appropriate relief or deny[] relief”); Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000) (“A ‘decision’ of the Board . . . is the decision with respect to the benefit sought by the veteran: those benefits
are either granted . . . or they are denied.”). And this court and the Veterans Court, considering the policies specific to this statutory context, have long held that a decision definitively denying certain benefits—here, it is undisputed that the Board definitively denied benefits
under section 1110—is a “final” decision under section 7266(a), despite the simultaneous remand of issues concerning receipt of benefits on other statutory grounds, where immediate “judicial review will not disrupt the
orderly process of adjudication.” See Elkins v. Gober, 229 F.3d 1369, 1373 (Fed. Cir. 2000).
Consequently, the denial portion of a mixed decision is a final decision available for Veterans Court review where the Board makes clear the finality of that denial,
L A R R Y T Y R U E S v . S H I N S E K I 8

although the Veterans Court is able to dismiss the appeal on the ground that immediate review would disrupt orderly adjudication, as where the denial portion is “inextricably intertwined” with the portion ordering a remand. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (refusing
to exercise jurisdiction over an appeal that was “inextricably
intertwined” with an issue undecided and pending before the Regional Office).

This rule not only fits the statutory language and context but enables the Board’s own rulings to provide the clarity that is desirable in a busy adjudicatory system.
And it finds support in the longstanding treatment of certain partial-case resolutions in the federal courts—not because that treatment directly controls, but because it supplies an instructive model for interpreting the provisions governing the analogous situation here. Under Fed. R. Civ. P. 54(b), a district court “may direct entry of a final judgment as to one or more, but fewer than all, claims or parties,” upon “determin[ing] that there is no just reason for delay.” Such an adjudication of some (but
not all) claims is an appealable “final judgment” under 28 U.S.C. §§ 1291, 1295. See, e.g., Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956); Spraytex, Inc. v. DJS&T, 96 F.3d 1377 (Fed. Cir. 1996).

Like a district court acting under Rule 54(b), the Board in the present context can determine that a denial portion of its ruling is definitive and sufficiently separate from a remand portion that it should be designated as
final and thus immediately appealable—as the Veterans Court found the Board did with unchallenged clarity in this case. Tyrues, 23 Vet. App. at 180-81. And like a district court’s decision to enter a partial final judgment
under Rule 54(b), the Board’s clear designation of a denial as final is not conclusive on the reviewing tribunal.
Whether on the claimant’s motion under the Veterans Court’s Rule 5(a)(3) or otherwise, the Veterans Court may decline to review the decision based on prudential or
L A R R Y T Y R U E S v . S H I N S E K I 9

similar considerations, such as sufficient intertwining of the decided and remanded issues, see Harris v. Derwinski, supra, as a federal appeals court may disagree with a district court’s determination that there is no just reason for delay in entering an appealable judgment on some (but not all) claims. See, e.g., 10 Charles A. Wright, et al., Federal Practice and Procedure § 2655 at 39-40 (3d ed. 1998) (“The fact that the district court files a Rule 54(b) certificate stating that those requirements have been
satisfied is not conclusive [and] is fully reviewable by an appellate court.”); id. § 2659 at 112 & n.18; Transp. Workers Union of Am., Local 100, AFL-CIO v. N.Y.C. Transit Auth., 505 F.3d 226, 230 (2d Cir. 2007); Gold Seal Co. v. Weeks, 209 F.2d 802, 810-11 (D.C. Cir. 1954).
This interpretation of section 7266(a) favors the veteran in at least two ways. First, it enables the veteran simply to follow express and unequivocal appealability directives from the Board, whose obligation in this setting, as elsewhere in the Title 38 scheme, is to do all it
can to provide clear guidance as to what it expects of the veteran. Uncertainty as to finality can both encourage premature attempts to appeal the unappealable and cause the failure to appeal the appealable. Predicating
appealability on the Board’s unambiguous instructions provides clarity. The Veterans Court thus did not rely on an incorrect rule of law in founding jurisdiction on a clear Board appealability statement, without resolving a dispute about whether Mr. Tyrues had one or more than one “claim”—a term that is in Rule 54(b) but not in section 7266(a). Tyrues, 23 Vet. App. at 172. Second, allowing the immediate appeal, subject to Veterans Court determinations of reasons not to proceed, makes possible quick
correction of erroneous denials, see Elkins, 229 F.3d at 1375, while permitting oversight for systemic efficiency, as this court explained in its earlier, now-vacated decision in this case. Tyrues, 631 F.3d at 1384.

L A R R Y T Y R U E S v . S H I N S E K I 10
B
When the Board renders a clear definitive denial of
benefits as part of a mixed decision, we further conclude,
the veteran not only can appeal immediately, but must
bring any appeal from the denial portion within the 120-
day period allowed by statute. Such a denial is a “final
decision,” as explained above, not an interlocutory decision.
And section 7266(a) declares that, “[i]n order to
obtain review by the Court of Appeals for Veterans
Claims of a final decision of the Board of Veterans’ Appeals,
a person adversely affected by such decision shall
file a notice of appeal with the Court within 120 days
after the date on which notice of the decision is mailed.”
38 U.S.C. § 7266(a) (emphasis added). The plain meaning
of that language, moreover, fits with the analogous law
governing a Rule 54(b) partial final judgment, which must
be appealed within the time allowed for appealing any
“final judgment” and cannot await completion of the rest
of the litigation. See, e.g., Brown v. Eli Lilly and Co., 654
F.3d 347, 354 (2d Cir. 2011) (dismissing for failure to
timely appeal after entry of a Rule 54(b) judgment); In re
Lindsay, 59 F.3d 942, 951 (9th Cir. 1995) (“A Rule 54(b)
judgment does not give the prospective appellant an
election to appeal at that time or later, when the entire
case is over.”).1 As noted above, the appellate tribunal
1 See also Dickinson v. Petroleum Conversion Corp.,
338 U.S. 507, 516 (1950) (“We hold the decree . . . to have
been a final one as to Petroleum and one from which it
could have appealed and that its failure to appeal therefrom
forfeits its right of review.”); Hill v. Chicago & E. R.
Co., 140 U.S. 52, 55 (1891) (refusing to consider, on appeal
of a later judgment in the same suit, a party’s concurrent
challenge to a prior judgment, which was not timely
appealed, but was “appealable as to the matters which it
fully determined”); Richard J. Pierce, Jr., Administrative
L A R R Y T Y R U E S v . S H I N S E K I 11
may decide not to proceed with the appeal (on request or
sua sponte), but the appeal must be filed.
Contrary to Mr. Tyrues’s contention, the Supreme
Court’s decision in Henderson does not support a radically
different rule under section 7266(a), namely, that a veteran
has the discretion to file an appeal immediately or to
wait until completion of all remand proceedings. The
Supreme Court in Henderson relied in substantial part on
Title 38’s solicitude for veterans, 131 S. Ct. at 1205-06,
but the Court invoked that policy for a limited purpose. It
held only that violations of section 7266(a)’s timing requirement
might be excused for good reasons, not that the
rule could be disregarded at the veteran’s discretion in the
significant class of cases involving mixed decisions. The
Veterans Court recognizes the availability of case-specific
equitable tolling to excuse such violations, and this court
has not understood Henderson to require more. Indeed,
Mr. Tyrues’s position that veterans have plenary discretion
not to appeal (within 120 days) in all mixed Board
decisions would be contrary to the Supreme Court’s
understanding of section 7266(a)’s timing requirement as
an “important procedural rule.” 131 S. Ct. at 1206.
Mr. Tyrues’s position also cannot be soundly supported
by this court’s decision in Brownlee v. DynCorp., 349
F.3d 1343 (Fed. Cir. 2003), which this court distinguished
in its now-vacated 2011 ruling in this case, Tyrues, 631
F.3d at 1384-85. Brownlee held that, when the Armed
Services Board of Contract Appeals has determined that
the claimant is entitled to relief, an appeal of that determination
could either be brought immediately to this
Law Treatise § 11.7 (5th ed. 2010) (warning that, when
seeking judicial review of agency action, “if a party waits
until the agency has taken a subsequent action, a court
might dismiss the petition as untimely if it concludes that
the action was reviewable at an earlier time.”).
L A R R Y T Y R U E S v . S H I N S E K I 12
court or await completion of the determination of monetary
relief on that very claim. Thus, Brownlee did not
involve the scenario involved here (or under Rule 54(b));
i.e., it did not involve a completed adjudication of a particular
claim for relief, but separation of liability and
quantification determinations. And there are meaningful
differences in statutory language and context.
The section of the Contract Disputes Act relevant in
Brownlee uses permissive language in stating that a
Board of Contract Appeals decision is final except that “a
contractor may appeal the decision to the United States
Court of Appeals for the Federal Circuit within 120 days.”
41 U.S.C. § 7107(a) (emphasis added). And the jurisdictional
provision of this court that was relevant in Brownlee,
28 U.S.C. § 1295(a)(10), does not address the
consequences of a failure to appeal from a final Board of
Contract Appeals decision. Brownlee thus involved no
statutory command as stark as section 7266(a)’s rule that,
“[i]n order to obtain review by the Court of Appeals for
Veterans Claims of a final decision of the Board of Veterans’
appeals, a person adversely affected by such a decision
shall file a notice of appeal with the Court within 120
days.”
The Contract Disputes Act context is also quite different
from the present context. There are roughly two
hundred times more appeals from the Board of Veterans’
Appeals each year than there are from the Board of
Contract Appeals. Compare United States Court of
Appeals for the Federal Circuit, Appeals Filed, Terminated,
and Pending (2012), available at http://www.cafc.uscourts.
gov/the-court/statistics.html (reporting 17 appeals filed
from the Board of Contract Appeals during the twelvemonth
period ending September 30, 2012) with United
States Court of Appeals for Veterans Claims, Annual
Report (2012), available at http://www.uscourts.cavc.gov/report.
php (reporting 3,649 appeals from the Board of Veterans’
Appeals during same period). The policies relevant to
L A R R Y T Y R U E S v . S H I N S E K I 13
handling a trickle of appeals that involve commercial
entities do not readily carry over to a large-scale system of
adjudication that involves individual claimants and
affirmatively seeks to provide benefits authorized by law
as quickly as possible. Brownlee thus does not justify a
result different from the result otherwise warranted in
this case: final decisions that are part of mixed decisions
must be appealed within the 120-day period specified in
section 7266(a), subject to equitable tolling.
CONCLUSION
Because the Veterans Court correctly interpreted section
7266(a), and because it found no basis for equitable
tolling of that provision’s 120-day rule in this case, we
affirm the Veterans Court’s dismissal of the April 2004
appeal of the September 1998 Board decision.
No costs.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
LARRY G. TYRUES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7007
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 04-584.
______________________
NEWMAN, Circuit Judge, dissenting.
This case presents a far-reaching ruling of procedural
law specific to veterans’ cases, where a vast agency administers
the nation’s laws affecting the population of war
veterans.
No aspect of this case offers the “unchallenged clarity”
seen by my colleagues. The very nature of Veteran
Tyrues’ “claim,” which has been pending since 1995, is the
subject of three Veterans Court decisions, two Federal
Circuit decisions, and a “grant of certiorari, vacate, and
remand” (GVR) from the Supreme Court.
This court today holds that a veteran who is proceeding
before a Regional Office and Board of Veterans Appeals
(BVA) must take an immediate interlocutory appeal
LARRY 2 TYRUES v. SHINSEKI
to the Veterans Court whenever the BVA decides part of a
claim, even if the BVA remands to the Regional Office on
a related aspect of the same claim. This court today holds
that unless such partial appeal is taken, the veteran
forfeits the right and opportunity to appeal that partially
decided aspect or raise that argument after the BVA’s
final judgment. This is incorrect procedural law in any
context, and is particularly inapt as applied to veterans’
claim procedure. I respectfully dissent.
Veteran Tyrues’ pulmonary claim
The procedural facts of this case are as follows: Mr.
Tyrues suffers from chronic respiratory symptoms including
shortness of breath and severe persistent lung infection.
In 1995 he filed a claim for service connected
pulmonary disability based on his exposure to dust,
fumes, kerosene and other irritants during his service in
the Persian Gulf War. The BVA held in 1998 that he had
not proven the medical facts of direct service connection
under 38 U.S.C. §1110, and remanded to the Regional
Office for determination of whether he met the criteria of
38 U.S.C. §1117 et seq., which provide a statutory presumption
of service connection for Persian Gulf War
veterans for “undiagnosed” or “unexplained” disabilities,
including “symptoms involving the upper or lower respiratory
system.” In accordance with this presumption,
signs and symptoms of respiratory illness “shall be considered
to have been incurred in or aggravated by service .
. . , notwithstanding that there is no record of evidence of
such illness during the period of such service.” 38 U.S.C.
§1118(a).
In a Board decision dated September 29, 1998, the
BVA described the “issue” of Mr. Tyrues’ claim as follows:
ISSUE: Entitlement to service connection for a
lung disorder, including service connection for
chronic disorder manifested by shortness of
LARRY TYRUES v. SH I N S E K I 3
breath due to an undiagnosed illness, claimed as
secondary to Persian Gulf War service.
1998 Bd. op. at 1. The BVA’s decision separated the issue
into two components: entitlement to service-connected
lung disorder on a direct basis under §1110, and entitlement
to service-connected respiratory symptoms on a
presumptive basis under §1117. The Board rejected the
§1110 basis, finding “no competent evidence that the
veteran currently suffers from a lung disorder,” but
remanded to the Regional Office under §1117, stating
that:
As the record stands, it is unclear whether there
is medical evidence to support the veteran’s
claimed respiratory symptoms or whether any of
the symptoms are affiliated with a diagnosed illness.
Id. at 8–9. The Board recommended that Mr. Tyrues
undergo additional respiratory examinations on remand.
Remand proceeded in the VA Regional Office in
Montgomery, Alabama. From December 1998 to October
2002 Mr. Tyrues underwent three medical examinations,
all focused on his respiratory symptoms as required by
the Board. The VA examiners came to three different
conclusions: (1) Tyrues “probably has chronic bronchitis,
which gets worse when he gets exposed to dust, paint,
etc.”; (2) Tyrues suffers from “mild chronic bronchitis with
a history of refractory pneumonia [and] shortness of
breath due to an undiagnosed illness”; and (3) Tyrues “is
allergic to certain paints and vapor and these occasional
respiratory symptoms are not related to the exposure of
fumes in Gulf War.” Tyrues v. Shinseki, 23 Vet. App. 166,
169–70 (2009).
In 2004 the BVA denied service connection of respiratory
symptoms under §1117. The Board acknowledged
that Persian Gulf War veterans receive presumptive
LARRY 4 TYRUES v. SHINSEKI
service connection for certain “unexplained” or “undiagnosed”
chronic disabilities manifesting within the presumptive
period, but concluded that Mr. Tyrues’
respiratory problems were not “unexplained.” The Board
stated that his symptoms were attributable to “known
clinical problems” over the years, including pneumonia,
pharyngitis, tonsillitis, bronchitis, and a reaction to
inhaling environmental agents, i.e. various etiologically
known lung disorders. 2004 Bd. op. at 11. The Board did
not reconcile its 2004 and 1998 determinations.
Mr. Tyrues appealed to the Court of Appeals for Veterans
Claims, arguing that he met the preponderance of
evidence standard for direct service connection of a lung
disorder under §1110, and alternatively that his evidence
established entitlement to the statutory presumption of
service connection under §1117. He also argued that the
BVA should not have “separat[ed] his claim for direct
service connection for a respiratory disability from his
claim for presumptive service connection for a lung disability
due to an undiagnosed illness.” Tyrues v. Nicholson,
20 Vet. App. 231, 2005 WL 3157695, at *2 (2005).
The Veterans Court affirmed the BVA’s ruling under
§1117, and dismissed his theory of direct service connection
under §1110 because he did not take an interlocutory
appeal of that aspect of the BVA’s 1998 decision within
120 days, citing 38 U.S.C. §7266(a). The Veterans’ Court
held that the 120-day appeal period had run in 1998 as to
that theory, and that his appeal as to direct service connection
was jurisdictionally barred. Id., at *3.
Mr. Tyrues appealed to this court, and we remanded,
Tyrues v. Peake, 273 F. App’x 921, 922 (Fed. Cir. 2008)
(“Tyrues I”), based on the government’s stipulation that it
would be appropriate to remand in light of the Veterans
Court’s holding in Roebuck v. Nicholson, 20 Vet. App. 307
(2006). Roebuck held that when there are two theories of
entitlement on a single disability claim, i.e., a direct
LARRY TYRUES v. SH I N S E K I 5
theory and a presumptive theory, the 120-day appeal
period of §7266 “will not begin to run until the Board has
denied all theories in support of the claim that it has
identified for consideration.” 20 Vet. App. at 316.
The full seven-judge Veterans Court heard Mr.
Tyrues’ case on remand for consideration in light of Roebuck,
issuing four opinions. Tyrues v. Shinseki, 23 Vet.
App. 166 (2009). The plurality opinion concluded that
finality attached to the 1998 BVA decision on the §1110
direct service connection aspect because Roebuck was
either wrong or inapplicable. Id. at 172–76. The other
three opinions criticized the plurality’s failure to provide
clear guidance, and expressed divergent views, from the
view that Mr. Tyrues asserted two “separate and distinct
claims,” to the view that Mr. Tyrues asserted one claim
with two theories of service connection. Id. at 185–199.
The majority affirmed dismissal of the appeal of the §1110
aspect of Mr. Tyrues’ claim.
Mr. Tyrues again appealed to this court, and we affirmed
on the ground that under the “rigid jurisdictional
nature of § 7266,” public policy is best served by allowing
appeals once the Board makes part of a claim final.
Tyrues v. Shinseki, 631 F.3d 1380, 1383 (Fed. Cir. 2011)
(“Tyrues II”). This court did not explain why a policy
interest in allowing interlocutory appeal in partial decision
cases resulted in a rule requiring interlocutory appeal;
however, it was clear that we viewed §7266(a) as
jurisdictional. Id. at 1384.
Shortly after our decision in Tyrues II, the Supreme
Court ruled that §7266(a) is not jurisdictional. Henderson
v. Shinseki, 131 S. Ct. 1197 (2011). The Court stated that
§7266(a) is a “claim processing rule” enacted to assist
with the “orderly progress of litigation” in veterans cases,
and should not be construed to produce harsh and unfair
consequences to veterans. Id. at 1203–04. The Court
identified the availability of equitable tolling as one of the
LARRY 6 TYRUES v. SHINSEKI
distinctions between a claim processing rule and a jurisdictional
rule. Id. at 1205.
With this guidance, Mr. Tyrues petitioned the Supreme
Court for review of our decision in Tyrues II. See
Pet’n for Certiorari, 2011 WL 1853076 (May 12, 2011).
The question Tyrues posed to the Court did not concern
equitable tolling. Rather, Tyrues asked whether a partial
decision of the BVA must be immediately appealed “when
all theories of entitlement to the benefit sought have not
been resolved.” Id., at *10. The petition stated that:
[O]ften there are multiple theories or legal bases
to establish entitlement to compensation under
what has been described as a confusing tapestry
of laws and regulations. . . . There is no reason for
veterans to be required to appeal a final Board decision
when an alternative theory of entitlement
has not been finally adjudicated by the VA.
Whether a veteran is awarded under one theory of
entitlement or another, the veteran’s amount of
compensation is not affected. It is the degree of
disability that dictates the amount of compensation
the United States pays for a resulting disability.
Thus, the policy consideration should be on
the process of determining entitlement and not on
compelling appeals which could be mooted by an
award under another theory.
Id. Despite Tyrues not mentioning equitable tolling, the
Court granted Tyrues’ petition, vacated Tyrues II, and
remanded “for further consideration in light of Henderson.”
Tyrues v. Shinseki, 132 S. Ct. 75 (2011). The Federal
Circuit in turn remanded to the Veterans Court,
stating that:
Because the Veterans Court erroneously treated
the appeal deadline as jurisdictional, we vacate
the Veterans Court’s judgment and remand for
further proceedings to determine whether the
LARRY TYRUES v. SH I N S E K I 7
non-jurisdictional nature of the 120–day deadline
should lead to a different result.
467 F. App’x 889, 890 (Fed. Cir. 2012).
On remand, Tyrues argued that the BVA incorrectly
split his “singular claim” for service-connected lung disorder
into two claims based on different theories of entitlement.
He argued that claim splitting for purposes of
immediate appeal was unfair and prejudicial to veterans
when the remanded portion of the claim is closely related
to the decided portion of the claim.
The plurality of the Veterans Court rejected Tyrues’
argument, on the basis that regardless of Henderson, “a
veteran’s claims may be treated as separable on appeal.”
26 Vet. App. 31, 34 (citing Elkins v. Gober, 229 F.3d 1369,
1373–76 (Fed. Cir. 2000)). Dissenting judges disputed
that Tyrues presented more than one separable claim,
and stated that Henderson compels revisiting “the veteran-
unfriendly presumption that this [case] provides
adequate notice to unrepresented claimants that they
must immediately appeal a bifurcated decision or lose
their appellate rights.”1 Id. at 35.
Today my colleagues agree with the Veterans Court
plurality that appeal of a bifurcated theory of service
connection is forfeited if not appealed separately, within
120 days of the partial decision. This court holds that a
veteran cannot await final adjudication of all aspects or
theories of his claim before appealing the portion of a
decision of the BVA resolving part of the claim. The court
does not address Tyrues’ principal argument: that he
1 Prior to 2006, Veterans were substantially restricted
from obtaining legal representation at the BVA
stage, adding to the inequity of charging the veteran with
knowledge of this illogical and prejudicial requirement.
LARRY 8 TYRUES v. SHINSEKI
presented a “singular claim,” inseparable from the remanded
issues and evidence. Instead, the court ratifies
the unworkable requirement that interlocutory appeal is
mandatory when a partial BVA decision is “sufficiently
separate from the remand portion.” Maj. op. at 8.
Today’s decision provides no usable guidance or analysis
as to when a BVA ruling is “sufficiently separate” to
invoke the adopted rule. Here, Mr. Tyrues has consistently
stated that his §1110 and §1117 theories are based on
the same medical evidence pertaining to the same disability,
and constitute a single claim of inextricably intertwined
issues and related arguments. This relationship
has not been refuted, or even discussed.
The court does not account for the Supreme Court’s
guidance in Henderson, that §7266(a) is intended to
“promote the orderly progress of litigation”—not unfairly
to remove unrepresented veterans from access to judicial
review when they have diligently pursued the remand
that could moot any need for appeal. The court’s ruling
today contravenes the principles of Henderson. No reason
or benefit has been offered to justify this harsh departure
from the final judgment rule in rulings of the BVA.
The final judgment rule and interlocutory appeal
Compulsory interlocutory appeal is contrary to the
federal rules, and its inflexible adoption is particularly
inapt in veterans’ cases, where partial remand from the
BVA to the Regional Office is frequent. Under the final
judgment rule, interlocutory appeals may be available in
certain specified circumstances, but such appeals are
generally not available absent certification by the court
that there is “no just reason for delay,” a determination
that was not made here.
My colleagues state, citing Elkins v. Gober, that this
court has “long held that a decision definitively denying
certain benefits . . . is a ‘final’ decision under section
LARRY TYRUES v. SH I N S E K I 9
7266(a).” Maj. op. at 7. Both the Secretary and Mr.
Tyrues disagree with this characterization of Elkins. Mr.
Tyrues correctly states that Elkins “allow[s]” a veteran to
take immediate appeal from a partial decision of the
Board when fairness requires, but does not require such
appeal if the veteran diligently pursues remand first.
Tyrues Br. 17. The Secretary correctly states that this
court “did not address in Elkins the issue raised on appeal
by Mr. Tyrues” of whether interlocutory appeal of a partial
BVA decision should be discretionary rather than
mandatory. Gov’t Br. 22 n.6.
Mr. Tyrues and the Secretary are correct. In Elkins
this court considered the question of whether the Veterans
Court must always dispose of all claims or issues
presented to it, before the Federal Circuit may exercise
appellate jurisdiction under 38 U.S.C. §7292. 229 F.3d at
1373. We concluded that final decision of all claims or
issues is not a requirement for our review under §7292,
for “a litigant’s individual claims for relief may, in certain
circumstances, be separable for purposes of appellate
review.” Id. We explained that various claims of a veteran’s
overall case “may” be treated as distinct for jurisdictional
purposes when “it would be unfair to deny the
veteran an immediate appeal of a final decision as to one
or more of his claims simply because an additional claim
is remanded for further proceedings.” Id. at 1376.
Elkins is firmly rooted in administrative precedent,
such as Dewey Electronics Corp. v. United States, 803 F.2d
650, 656 (Fed. Cir. 1986). In Dewey the court held that a
rule requiring the full and complete decision of the Armed
Services Board of Contract Appeals (ASBCA) before
permitting appeal would be inconsistent with “the efficiency
and flexibility generally associated with administrative
proceedings.” The Elkins court held that Dewey
“applies with even greater force to veterans cases.” 229
F.3d at 1376.
LARRY 10 TYRUES v. SHINSEKI
In Dewey the court stated that interlocutory appeal is
permitted, but it did not answer the question here, of
whether interlocutory appeal is mandatory. That question
was raised and answered in Brownlee v. DynCorp.,
349 F.3d 1343 (Fed. Cir. 2003). In Brownlee we held that
the fact that a party could have appealed a particular
decision at an interlocutory stage, did not prohibit the
party from raising the issue on appeal of the Board’s final
decision. Id. at 1347 (“Allowing the aggrieved party to
wait for a truly final judgment before appealing furthers
the purposes of . . . the doctrine of finality.”). The court
cited numerous authorities including Supreme Court and
Circuit Court authority. See Brownlee, 349 F.3d at 1348
(citing e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
(1975) and Victor Talking Machine Co. v. George, 105 F.2d
697 (3d Cir. 1939)).
Precedent is clear that interlocutory appeal in specified
situations “although permitted, is not obligatory.”
Ernst v. Child and Youth Services of Chester County, 108
F.3d 486, 493 (3rd Cir. 1997) (“an interlocutory appeal
from a denial of summary judgment on immunity
grounds, although permitted, is not obligatory”); Tincher
v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975) (“Although
the preliminary injunction was appealable as of right . . .
the defendants’ failure to appeal did not waive their right
to appeal from the final order. An interlocutory appeal is
permissive rather than mandatory”); Scarrella v. Midwest
Fed. Sav. & Loan, 536 F.2d 1207, 1209 (8th Cir. 1976) (“A
party is not required to take an interlocutory appeal
authorized by statute.”); Bingham Pump Co. v. Edwards,
118 F.2d 338, 339 (9th Cir. 1941) (“appellant was not
required to [immediately] appeal from the interlocutory
decree” holding patent valid and infringed); see generally
16 Charles A. Wright et. al., Fed. Prac. & Proc. Juris.
§3921 n.27 (2d ed.).
In discussing this pragmatic procedure, the Third Circuit
explained that:
LARRY TYRUES v. SH I N S E K I 11
A party, feeling himself aggrieved by an interlocutory
decree of the kind mentioned, is given the
right to appeal without awaiting a final decree,
upon condition that he take his appeal within
thirty days. [Section 1292], however, does not require
an aggrieved party to take such an appeal in
order to protect his rights, and, where it is not
taken, does not impair or abridge in any way the
previously existing right upon appeal from the final
decree to challenge the validity of the prior interlocutory
decree. The aggrieved party may,
therefore, await the final determination of the
case and upon appeal therefrom raise all questions
involved in the case.
Victor Talking Machine, 105 F.2d at 699. As discussed in
Elkins, this reasoning applies with even greater force in
the context of veterans’ adjudication. Elkins, 229 F.3d at
1376; see Henderson, 131 S. Ct. at 1206.
Elkins did not hold that any aspect decided by the
BVA, among multiple claims or issues, must be immediately
appealed to the court although other aspects were
remanded to the Regional Office. We observed rather
that veterans are entitled to the “flexibility generally
associated with administrative proceedings” as opposed to
the rules of appeal from district courts where multiple
claims “must be tried together and appealed all at once”
except in the specific circumstances of Rule 54(b). Elkins,
229 F.3d at 1375. These principles appeared in the administrative
context in Brownlee.
The majority rejects the applicability of Brownlee in
the veterans context, on the basis that the appeal statute
in ASBCA cases states that a contractor “may” appeal an
adverse decision within 120 days, whereas the veterans’
appeal statute §7266(a) states that the veteran “shall”
appeal “a final decision” of the Board within 120 days.
Maj. op. at 11. The distinction the majority draws is not
LARRY 12 TYRUES v. SHINSEKI
in alignment with general federal practice, see Brownlee,
349 F.3d at 1348 nn.2,3. Mandatory interlocutory appeal
is not required in any statute or rule. The Supreme Court
permits discretionary interlocutory appeal under 28
U.S.C. §1257 despite the requirement that review “shall”
be applied for within ninety days after final judgment. See
id. at 1348 (citing Cox Broadcasting Corp. v. Cohn, 420
U.S. 469 (1975) and 28 U.S.C. §2101(c)). And the Circuit
Courts of Appeal generally permit discretionary interlocutory
appeal under 28 U.S.C. §1292 despite the requirement
that appeal “must” be filed within 30 days of entry
of the judgment or order appealed from. See 349 F.3d at
1348 (citing Victor Talking Machine, 105 F.2d at 697) and
Fed. R. App. P. 4(a)(1)(A)).
The majority also proposes to distinguish Brownlee on
the theory that it “did not involve . . . a completed adjudication
of a particular claim for relief, but only separation
of liability and quantification determinations.” Maj. op.
at 12. However, neither did Mr. Tyrues receive a completed
adjudication of his claim, for he received only a
partial decision based on one theory of relief under §1110,
while his other theory of relief under §1117 was remanded
for development on related or identical evidence involving
the same respiratory illness.
The rule set forth today simply requires satellite litigation
of “sufficiently separable” issues, with no discernible
guidance or benefit.
Veteran Tyrues presents only one claim for service
connection
The majority does not explain what constitutes a “sufficiently
separate” decision to warrant mandatory interlocutory
appeal, while it is clear that one aspect of the
same claim should not require immediate separate appeal.
This was the subject of this court’s remand for
consideration in light of Roebuck. In Roebuck, the Veterans
Court held that
LARRY TYRUES v. SH I N S E K I 13
3. Requirements of a Notice of Appeal when
the Board Bifurcates a Claim
Pursuant to 38 U.S.C. §7266, an appeal to this
Court is commenced by the filing of a Notice of
Appeal within 120 days of a final Board decision.
We hold that when a claimant raises more than
one theory in support of a claim during the time
while that claim is still pending before VA, if the
Board bifurcates those theories or arguments and
addresses them in separate decisions, the time for
appeal is not ripe until the Board issues a final
decision denying all theories. Under those circumstances,
the 120-day requirement for filing a
Notice of Appeal will not begin to run until the
Board has denied all theories in support of the
claim that it has identified for consideration. The
final resolution of a veteran’s claim may be disserved
by requiring the veteran to immediately
appeal part of the BVA’s decision, although the
BVA has remanded to the Regional Office for proceedings
on the same claim.
20 Vet. App. at 315–16. I encourage return to this wise
ruling, which is well supported by precedent that a veteran
with a single disability has only one claim, even if the
veteran asserts more than one theory of entitlement to
benefits for the disability. See Schroeder v. West, 212 F.3d
1265, 1270 (Fed. Cir. 2000) (veteran’s claim for bilateral
eye disorder on direct theory of service connection under
§1110 was “same claim” as his claim for service connection
on a presumptive theory based on exposure to Agent
Orange because both were based on the same disability);
Bingham v. Nicholson, 421 F.3d 1346, 1348 (Fed. Cir.
2005) (veteran seeking service connection for an ear
condition on a direct basis and later on a presumptive
basis, did not have two separate claims, but had two
separate “theories” of a single claim for benefits); Roebuck,
20 Vet. App. at 313–14 (“although there may be
LARRY 14 TYRUES v. SHINSEKI
multiple theories or means of establishing entitlement to
a benefit for a disability, if the theories all pertain to the
same benefit for the same disability, they constitute the
same claim.”); Clemons v. Shinseki, 23 Vet. App. 1, 4
(2009) (“multiple medical diagnoses or diagnoses that
differ from the claimed condition do not necessarily represent
wholly separate claims”).
The limitation to a single claim for benefits is not inconsistent
with the understanding that service connection
for certain disorders can be either direct or presumptive.
Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
The veteran need only demonstrate one theory of service
connection to have a “well-grounded claim.” Schroeder,
212 F.3d at 1270-71. The BVA’s 1998 ruling that Mr.
Tyrues had not proven direct service connection by a
preponderance of evidence was not a complete and final
adjudication of his claim for a service connected lung
disorder, because respiratory symptoms of Persian Gulf
Syndrome are the subject of a statutory presumption of
service connection. His assertion of either or both direct
and presumptive theories of service connection is a claim
for the same disorder. See Bingham, 421 F.3d at 1348
(separate theories are not separate claims). A ruling as to
one theory accompanied by remand to resolve a second
theory is not a complete adjudication of the claim.
The majority’s position that Mr. Tyrues asserted multiple
claims is incorrect. Mr. Tyrues’ claim for lung disorder
is the same malady for both of his theories of service
connection; the only difference is the nature and burden of
proof. On the theory of direct service connection, he has
the burden of showing service connection by a preponderance
of the evidence; on the theory of presumptive service
connection, he has to show entitlement to the statutory
presumption. Tyrues points out that all of the medical
evidence adduced on remand related to the illness of his
lungs under both theories.
LARRY TYRUES v. SH I N S E K I 15
Rule 54(b), even if viewed as applicable to BVA
appeals, was not satisfied
The majority offers analogy to Federal Rule 54(b) in
support of its mandatory interlocutory appeal.2 However,
Rule 54(b) requires the tribunal to make express findings
of both “finality” of adjudication of a specific issue, and
“no just reason for delay” as to that issue. The BVA made
no such findings. Rule 54(b), for sound reason, was not
relied on by the Veterans Court or the Secretary, for the
BVA did not purport to meet the requirements of the
Rule.
As stated in Abney v. United States, 431 U.S. 651,
656-57 (1977), “[t]he general principle of federal appellate
jurisdiction, derived from the common law and enacted by
the First Congress, requires that review of nisi prius
proceedings await their termination by final judgment.”
When justice or convenience warrants, shortcuts are
available, whether under Rule 54(b) or as discussed in
Elkins, supra. Although the panel majority proposes
otherwise, prior to Mr. Tyrues’ case the Federal Circuit
has never held that a litigant must immediately appeal
2 Rule 54(b). Judgment on Multiple Claims or
Involving Multiple Parties.
When an action presents more than one claim for relief
. . . the court may direct entry of a final judgment as
to one or more, but fewer than all, claims or parties only if
the court expressly determines that there is no just reason
for delay. Otherwise, any order or other decision,
however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’
rights and liabilities.
LARRY 16 TYRUES v. SHINSEKI
part of an incomplete decision, or lose the right to appeal
that part after final judgment.
The relevant appeal statutes are 38 U.S.C. §§7266
and 7252. Section 7266(a) requires veterans to appeal “a
final decision” of the BVA within 120 days, and section
7252 grants the Veterans Court jurisdiction to review any
“decision”—final or not. The Veterans Court may decline
to review partial decisions of the BVA if the appealed
issue is “inextricably intertwined” with an undecided
issue pending before the Regional Office. Harris v. Derwinski,
1 Vet. App. 180, 183 (1991). None of these authorities
requires mandatory interlocutory appeal by the
veteran of an aspect of his case while a related aspect is
remanded.
Applying Rule 54(b), requirement of explicitly finding
“no just reason for delay” is separate from and in addition
to issue finality. “Once having found finality, the district
court must go on to determine whether there is any just
reason for delay.” Curtiss-Wright Corp. v. Gen. Elec. Co.,
446 U.S. 1, 7–10 (1980). See iLOR, LLC v. Google, Inc.,
550 F.3d 1067, 1072 (Fed. Cir. 2008) (“it must be apparent,
either from the district court’s order or from the
record itself, that there is a sound reason to justify departure
from the general rule that all issues decided by the
district court should be resolved in a single appeal of a
final judgment.”).
As explained by Professor Wright, this aspect of Rule
54(b) was added because the previous version of the rule
“provided no guidance on what constituted a ‘final order’
so that parties lacked any reliable means of determining
whether a particular court order relating to less than all
of the claims was appealable.” 10 Fed. Prac. & Proc. Civ.
§2653 (3d ed.). This “no reason for delay” requirement is
on point for veterans’ cases, because it “reduces as far as
possible the uncertainty and the hazard assumed by a
litigant who either does or does not appeal from a [partial]
LARRY TYRUES v. SH I N S E K I 17
judgment.” Dickinson v. Petroleum Conversion Corp., 338
U.S. 507, 512 (1950). Application of Rule 54(b) without
certification of “no just reason for delay” is improper.
The majority stresses the “finality” of the BVA’s decision
of Tyrues’ theory of direct service connection and the
BVA’s “unequivocal appealability directives,” maj. op. at
9. The majority states that the BVA provided “unchallenged
clarity” about its intent to render a separately
appealable ruling. Id. at 8. But here the BVA was not
unmistakably clear or unequivocal that immediate appeal
of the ruling on this theory was essential, lest the theory
be forfeited on final judgment. There was no analogy to
the “certification” required by Rule 54(b).
The BVA sent Mr. Tyrues generic instructions headed
“Notice of Appellate Rights” and “Your Rights to Appeal
our Decision.” The instructions were not specific to Mr.
Tyrues’ case. The instructions stated that a decision
granting “less than the complete benefit . . . is appealable
to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision;”
that is, that the Veteran has the right to appeal if
he receives less than was requested. 1998 Bd. op. at 11
(emphasis added). The instructions stated that the veteran
could not appeal a remand because a remand is “in the
nature of a preliminary order” and “is not a final decision.”
Id. at 12–13.
Although the instructions stated that issues addressed
in the BVA’s “Order” section are “final,” that
statement was not unmistakably clear in requiring a
mandatory immediate appeal. See Kelly v. Lee’s Old
Fashioned Hamburgers, Inc., 908 F.2d 1218, 1221 (5th
Cir. 1990) (district court must express the intent to enter
a partial final judgment with “unmistakable clarity”). In
Mr. Tyrues’ case the issue the BVA decided was on the
same respiratory disorder that was remanded. The Board
simultaneously stated that there was no competent eviLARRY
18 TYRUES v. SHINSEKI
dence of a lung disorder, and that “[a]s the record stands,
it is unclear whether there is medical evidence to support
the veteran’s claimed respiratory symptoms.” 1998 Bd.
op. at 7, 9. Still, the majority rules that from these instructions
veteran Tyrues would know and should have
known that he must immediately appeal the denial of
direct service connection, although the Board’s rulings
were confusing at best, if not directly inconsistent.
The Veterans Court certainly did not deem Mr.
Tyrues’ case one of clear and unequivocal finality by the
BVA. See 23 Vet. App. 166 (2009) (four opinions from
seven judges); 26 Vet. App. 31, 33 (2012) (three opinions
from six judges). All of the Veterans Court judges recognized
in their separate opinions that cases such as Roebuck,
Maggitt, and Elkins call into question the
government’s interpretation of the Board’s instructions to
the veteran. E.g., 23 Vet. App. at 174. The Secretary
does not have plenary power or statutory authority to
determine the appeal requirement for veterans. This
departure from standard appellate practice in a manner
hostile to veterans’ entitlement to judicial review requires
strict scrutiny, not deferential acceptance.
None of the Veterans Court opinions found “clarity” in
the BVA’s instructions concerning appeal. All of the
judges recognized the complexities involved. See 23 Vet.
App. at 179–80 (plurality based on “the totality of the
circumstances”); id. at 185–86 (concurring opinion on
ground that “what constitutes a ‘claim’ differs depending
on what stage in the administrative process one is attempting
to define a claim.”); id. at 187–88 (opinion
criticizing plurality for interchangeable use of “issue,”
“matter,” and “claim” without clear definition of those
terms); id. at 193–94 (dissenting opinion that “a Board
decision does not become final until it is ripe for judicial
review, regardless of the Board’s desire to wash its hands
of a particular theory before the claim has been fully
LARRY TYRUES v. SH I N S E K I 19
developed and adjudicated”). As explained in a separate
opinion on remand:
This case is not about a “mixed decision,”
where the Board denies one claim while remanding
another. This case is about the finality of a
single claim that the Board bifurcates based upon
different theories. . . . The hard question presented
by this case is how to handle VA’s practice of
bifurcating a single claim and adjudicating different
theories separately. That is the question to
which the system needs a clear answer.
26 Vet. App. at 35–36 (citations omitted).
I repeat that precedent cannot be reconciled with today’s
ruling. In Roebuck the Veterans Court held that
“the 120-day requirement for filing a Notice of Appeal will
not begin to run until the Board has denied all theories in
support of the claim that it has identified for consideration.”
20 Vet. App. at 315-16. In Kirkpatrick v. Nicholson,
417 F.3d 1361, 1365 (Fed. Cir. 2005), we explained
that a remanded claim for benefits is not a “decision,” let
alone a final decision. In Joyce v. Nicholson, 443 F.3d
845, 850 (Fed. Cir. 2006), we held that review by the
Federal Circuit is unavailable for a portion of a single
claim when the remainder of the claim is remanded.
The court’s answer today is neither clear nor correct.
The court states that a BVA decision on an issue must be
immediately appealed if the BVA ruling is “definitive and
sufficiently separate from a remand portion,” maj op. at 8,
but my colleagues provide no guidance as to what this
means. Here, the 1998 BVA decision was not “definitive”
of Mr. Tyrues’ respiratory claim, nor was it separate from
the remand portion, which also addressed his respiratory
symptoms. The appropriateness and utility of an interLARRY
20 TYRUES v. SHINSEKI
locutory appeal3 depends on the particular situation. For
example, if the Regional Office had found on remand that
Tyrues is entitled to the statutory presumption of service
connection, that would have resolved his claim, and the
now-required interlocutory appeal would be unnecessary.
Tyrues explains the practical consequences:
a favorable finding on the theory/claim for undiagnosed
lung disorder would have a substantial
impact on the diagnosed lung disorder theory/
claim, most likely rendering it moot. . . . As for
medical development of the claim, one pulmonary
specialist could have addressed both theories.
Tyrues Br. at 14–15 (emphases original).
Under this rule, veterans will be forced to incur the
time and expense of appealing every partial decision of
the BVA to preserve rights, even if such decision would be
mooted by the remand aspect. The court’s ruling will be
3 The panel majority objects to the usage “interlocutory,”
arguing that a partial decision of a veteran’s single
claim is “a final decision” and “not an interlocutory decision”
although the entire claim is remanded for application
of a different theory of entitlement. Maj. op. at
10. However, the standard definition of “interlocutory” is
“not constituting a final resolution of the whole controversy.”
Black’s Law Dictionary (9th ed. 2009). Even Rule
54(b), from which the majority draws support, requires
final decision of an entire claim, as the Supreme Court
has explained: “Rule 54(b) does not apply to a single claim
action . . . . It is limited expressly to multiple claims
actions in which one or more but less than all of the
multiple claims have been finally decided and are found
otherwise to be ready for appeal.” Liberty Mut. Ins. Co. v.
Wetzel, 424 U.S. 737, 742-43 (1976).
LARRY TYRUES v. SH I N S E K I 21
of wide impact, for the BVA not infrequently remands
aspects of a claim to the Regional Office while disposing of
other aspects. Today’s requirement of immediate partial
appeal serves neither efficiency nor fairness, while adding
complexity and cost and time to determination of veterans’
concerns.
I take note of the majority’s proposal that a mandatory
immediate partial appeal is beneficial to the veteran
because it “enables” the veteran to appeal. Maj. op. at 9.
However, Elkins already provides the veteran with the
right and opportunity to appeal. See Elkins, 229 F.3d at
1376 (“each ‘particular claim for benefits’ may be treated
as distinct for jurisdictional purposes”). This case is about
the requirement to immediately appeal an aspect of a
claim, not the ability or authorization to immediately
appeal such aspect.
The majority’s holding that because a veteran may
appeal from a partial BVA decision, he must immediately
appeal, is not consistent with the policy embodied in the
veterans’ statutes, as reiterated by the Court in Henderson,
131 S. Ct. at 1206, that “We have long applied the
canon that provisions for benefits to members of the
Armed Services are to be construed in the beneficiaries’
favor.”
The GVR
Today’s ruling strains the Court’s grant of certiorari
and remand of Mr. Tyrues’ appeal. My colleagues set the
GVR aside, seeing “no basis for now reaching a different
conclusion” from the prior decision, because Mr. Tyrues
did not request the remedy of “equitable tolling.” Maj. op.
at 6, 11. However, Henderson is not limited to equitable
tolling. The Court’s GVR of Mr. Tyrues’ appeal is not
reasonably construed as strictly limited to an argument
that was not even included in the Tyrues cert. petition.
The GVR requires our consideration of how Henderson
relates to the reasoning of Tyrues II. See United States v.
LARRY 22 TYRUES v. SHINSEKI
Holloway, 630 F.3d 252, 258 (1st Cir. 2011) (“A Supreme
Court opinion need not be directly on point to undermine
one of our opinions.”). Our prior reasoning that Mr.
Tyrues’ appeal of his argument for direct service connection
was time barred because “Section 7266(a) is mandatory
and jurisdictional,” 631 F.3d at 1383, is negated by
Henderson.
Mr. Tyrues’ petition for certiorari raised the question
of whether he should be required to immediately appeal a
partial BVA decision on one of his two theories of service
connection for the same disability. The Federal Circuit
decision from which he petitioned had inflexibly applied
the 120-day appeal period to require interlocutory appeal
of a partial ruling on Mr. Tyrues’ claim. The court today
again imposes the 120-day time limit for the direct service
connection aspect, and holds that Mr. Tyrues forfeited
appeal of this aspect, although another theory of service
connection for the same disability was remanded for
development by the Regional Office. The consequences
are as unfair as they are inefficient, warranting at least
this court’s discussion of its rejection of the equitable
principles of Henderson.
This court compounds the inequity, for even as my colleagues
rule that veterans must pursue the partial appeal
or forfeit the issue, “the Veterans Court may decline to
review the [partial] decision.” Maj. op. at 8–9 (citing
Harris, 1 Vet. App. at 183). Thus my colleagues hold that
although the veteran must incur the costs and fees and
delay of briefing and argument of an interlocutory appeal,
the veteran may later learn that the interlocutory appeal
is deemed inappropriate by the court and will not be
decided.
The premises of this GVR warrant a less severe view
of procedures in veteran cases. At least, the veteran
should receive as much consideration as does the government.
For example, in Bingham the government took the
LARRY TYRUES v. SH I N S E K I 23
opposite position from that which it argues here, arguing
that direct and presumptive service connection “are two
theories by which service connection can be proven . . . not
two separate claims upon which an effective date must be
based.” Bingham, Gov’t Br., 2005 WL 1250863, at *9.
The Federal Circuit adopted that view, 421 F.3d at 1338,
in conflict with today’s ruling.
Today’s ruling contravenes the Court’s advice to apply
§7266(a) as neither mandatory nor jurisdictional, and to
assure orderly litigation procedures, avoiding harsh or
unfair consequences to veterans. Henderson, 131 S. Ct. at
1204. From my colleague’s ruling that the veteran must
take an interlocutory appeal or forfeit appeal of that
aspect, I respectfully dissent.

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