Tatum v. Dept. Of Veterans Affairs ( 2011 )

NOTE: This order is nonprecedentia1.
United States Court of AppeaIs
for the FederaI Circuit
WILLIE E. TATUM,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, ~
Resp0ndent-Appellee.
2011-7()70 _
Appea1 from the United States Court of Appeals for
Veterans C1ai1ns in case no. 08-3782, Chief Judge Bruce
E. Kaso1d.
ON MOTION
Before NEWMAN, SCHALL and DYK, Circuit Judges.
NEWMAN, Circuit Jucige.
ORDER
The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Ci1'. R. 27(f) and dismiss Wi1lie E.
Tatum’s appea1. Tatu1n opp0ses. The Secretary rep1ies.
TATUM V. DVA 2
Tatum served on active duty from May 1958 to March
1980 ln February 2002, Tatum filed a claim with the
Department of Veterans Affairs regional office (RO)
seeking compensation for a disability resulting from
prostate cancer associated with herbicide exposure during
his service, and residual disability resulting from surgery
and treatment he had undergone for his cancer
The RO awarded Tatum a staged rating consisting of
a 100% disability rating award through May 2002, and a
10% disability rating effective thereafter based on a
medical examiner’s report that Tatum’s condition had
impr0ved. The Board sustained the RO’s staged-rating
award, which Tatum appealed to the United States Court
of Appeals for Veterar1s Claims. '
On appea1, the court set aside the Board’s determina-
tion not to award Tatum entitlement to a rating award of
higher than 10% after l\/lay 2002, and remanded the
matter for additional proceedings ln doing so, the court
held that the Board did not adequately address whether
Tatum’s 100% disability rating should have continued
pursuant to applicable regulations based on a local reoc-
currence or metastasis or continued treatment for malig-
nant neoplasms.
The court rejected Tatum’s argument that he was cur-
rently entitled to a l00% disability rating award based on
an argument that the Department failed to fulfill its
obligations under 38 C.F.R. § 3.105(e) in notifying him
that his rating was going to be reduced. The court ex-
plained that Tatum’s argument ignored § 3.105(e)’s clear
directive that notice was only warranted when there is a
reduction in "compensation payments currently being
made,” and that it was undisputed that Tatun1 was not
receiving compensation at the time the staged rating was
4
3 TATUM V. DVA
assigned thereby rendering the regulation’s requirement
inapplicable.
The Secretary moves to dismiss Tatum’s appeal from
the court’s remand order as non-final. Our review of
decisions of the Court of Appeals for Veterans Claims is
governed by 38 U.S.C. § 7292. While that statute does
not explicitly impose a final judgment requirement, we
have nonetheless “generally declined to review non-final
orders of the Veterans Court” on prudential grounds.
William,s v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002).
Williams establishes a three-part test for deviation from
the strict rule of finality:
(1) there must have been a clear and final deci-
sion 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 un-
necessary; (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.
Id. at 1364 (footnotes omitted).
Our precedent confirms that to take up a remand or-
der on appeal, the appellant must challenge a remand
action that itself would independently violate the rights of
the veteran, for example, where a remand would be
barred by statute. C0mpare J0yce v. Nicholson,, 443 F.3d
845, 849-50 (Fed. Cir. 2006) (dismissing appeal from
remand order); J0nes o. Nicholson, 431 F.3d 1353, 1359
(Fed. Cir. 2005) (same); Myore v. Principi, 323 F.3d 1347,
1351-52 (Fed. Cir. 2003) (Same); Winn v. Br0wn, 110 F.3d
56, 57 (Fed. Cir. 1997) (same) with Stevens v. Principi,
TATUM V. DVA 4
289 F.3d 814, 817 (Fed. Cir. 2002) (deciding merits of
appeal from remand order where veteran challenged
court’s authority to remand); Adams u. Principi, 256 F.3d
1318, 1321-22 (Fed. Cir. 2001) (same).
This requirement is notably absent here. Tatum does
not seek to challenge the basis for remand, but a separate
issue_that the Court of Appeals for Veterans Claims’
interpretation of § 3.105(e)’s notice obligations errone-
ously denied him entitlement to a 100% disability rating
award effective immediately. '
The right to appeal a remand order does not_despite
Tatum’s objections_hinge on the possibility that a rever-
sal by this court could eliminate the need for a remand to
the agency. ln Myore, the veteran sought to appeal a
remand order in which the Court of Appeals for Veterans
CIaims addressed and rejected the appellants contention
that 38 U.S.C. § 1310(a) cannot be interpreted to deny her
dependency and indemnity compensation because of
misconduct by the veteran. We dismissed, explaining:
The 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 deci-
sion in favor of the claimant_does not render
that decision final. Rather, ‘there must be a sub-
stantial risk that the decision would not survive
a remand.’
323 F.3d at 1352 (qu0nng william 275 F.3d at 571
We see no sound reason to treat this case differently.
J ust as in Myore, if Tatum does not obtain all the benefits
he seeks before the Board and the Board’s decision is
affirmed by the Court of Appeals for Veterans Claims,
then Tatum may seek review of the court’s interpretation
3
5 TATUM V. DVA
of § 3.105 on what will then be a final judgment We
therefore dismiss the appeal.
Accordingly,
IT ls 0RoEREo THA'r:
(1) The Secretary's motions are granted
(2) Each side shall bear its own costs.
FoR THE CoURT
_j\j\_ 7 2011
/s/ J an Horbaly
Date J an Horbaly
Clerk
cc: Sandra E. Booth, Esq. __
Michael P. Goodman, Esq.
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