Sanchez-Navarro v. McDonald

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERTO SANCHEZ-NAVARRO,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7075
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1645, Judge William A. Moor-
man.
______________________
Decided: January 14, 2016
______________________
DEANNE LYNN BONNER SIMPSON, Bonner Di Salvo
PLLC, Detroit, MI, argued for claimant-appellant.
JOSEPH ASHMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER; BRANDON A. JONAS, Y. KEN LEE,
2 SANCHEZ-NAVARRO v. MCDONALD
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before LOURIE, DYK, and HUGHES, Circuit Judges.
LOURIE, Circuit Judge.
Roberto Sanchez-Navarro appeals from a remand or-
der of the U.S. Court of Appeals for Veterans Claims (the
“Veterans Court”). See Sanchez-Navarro v. McDonald,
No. 12-1645, 2015 WL 1037719 (Vet. App. Mar. 11, 2015).
For the reasons that follow, we dismiss the appeal.
BACKGROUND
This case is before us for the second time. The facts
have largely been set forth in our first opinion, Sanchez-
Navarro v. McDonald, 774 F.3d 1380, 1382–83 (Fed. Cir.
2014). We recount below only those facts most relevant to
this appeal.
Sanchez-Navarro served in the U.S. Army from May
1958 to March 1960, with a portion of that time spent in
Korea near the demilitarized zone. In September 2005,
Sanchez-Navarro filed a claim for service connection for
post-traumatic stress disorder (“PTSD”). In support of
that claim, he submitted a letter from a Department of
Veterans Affairs (“VA”) therapist diagnosing him with
PTSD.
While Sanchez-Navarro’s PTSD claim was before the
Veterans Court for the first time, the VA amended the
relevant regulation, 38 C.F.R. § 3.304(f). It added a
provision that modified the evidentiary standard for
claimants seeking PTSD benefits based on a veteran’s
fear of hostile military or terrorist activity. See 38 C.F.R.
§ 3.304(f)(3). Specifically, the added section provides: “the
veteran’s lay testimony alone may establish the occur-
rence of the claimed in-service stressor” if “a VA psychia-
trist or psychologist” “confirms that the claimed stressor
SANCHEZ-NAVARRO v. MCDONALD 3
is adequate to support a [PTSD] diagnosis” and if “the
stressor is consistent with the places, types, and circum-
stances of the veteran’s service.” Id.
The Veterans Court accordingly remanded Sanchez-
Navarro’s claim to the Board of Veterans’ Appeals (the
“Board”) in light of the amended regulation. The Board
then sustained its earlier denial, and Sanchez-Navarro’s
claim returned to the Veterans Court a second time.
The Veterans Court affirmed the Board’s denial, first
finding that the VA was not required to provide Sanchez-
Navarro with a medical examination by a VA psychiatrist
or psychologist under 38 U.S.C. § 5103A(d), the duty-to-
assist statute, because “the evidence was insufficient to
corroborate the occurrence of claimed events.” Sanchez-
Navarro v. Shinseki, No. 12-1645, 2013 WL 5496825, at
*6 (Vet. App. Oct. 4, 2013). Then, in light of the addition-
al finding that Sanchez-Navarro only had a PTSD diagno-
sis from a VA therapist, not a psychiatrist or psychologist,
the Veterans Court found that § 3.304(f)(3) did not apply,
and thus that Sanchez-Navarro’s lay testimony could not
establish the occurrence of any claimed in-service stress-
or. Sanchez-Navarro appealed to this court.
On appeal, we vacated and remanded. We held that
the “consistent with the places, types, and circumstances
of the veteran’s service” language from § 3.304(f) informs
the VA’s duty to assist under § 5103A. Accordingly, we
stated:
On remand, the Veterans Court should determine
whether Sanchez-Navarro’s “claimed stressor[s
are] consistent with the places, types, and circum-
stances of the veteran’s service.” If so, then
Sanchez-Navarro is entitled to a medical exami-
nation by a VA psychiatrist or psychologist. If the
VA psychiatrist or psychologist concludes that
“the claimed stressor is adequate to support a di-
agnosis of [PTSD] and that the veteran’s symp-
4 SANCHEZ-NAVARRO v. MCDONALD
toms are related to the claimed stressor,” the
Board must determine whether the government
has established “clear and convincing evidence to
the contrary.” In the absence of such clear and
convincing evidence to the contrary, the veteran’s
lay testimony alone is sufficient to establish the
occurrence of the claimed in-service stressor.
Sanchez-Navarro, 774 F.3d at 1384–85 (internal citations
omitted).
On remand, the Veterans Court held that “the deter-
mination the Federal Circuit directs this Court to make is
a factual determination that the Board must make in the
first instance.” Sanchez-Navarro, 2015 WL 1037719, at
*2. It accordingly remanded to the Board for a determi-
nation whether Sanchez-Navarro’s alleged stressors are
consistent with the places, types, and circumstances of his
service. Id. at *3. Sanchez-Navarro has appealed from
that remand order and now seeks to invoke our jurisdic-
tion under 38 U.S.C. § 7292(a).
DISCUSSION
The scope of our review in an appeal from a Veterans
Court decision is limited by statute. 38 U.S.C. § 7292(a).
That proscription does not recite a finality requirement,
see Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir.
2002), but we have nevertheless held that we ordinarily
lack jurisdiction over non-final decisions of the Veterans
Court, such as remands, id. at 1363–64; Winn v. Brown,
110 F.3d 56, 57 (Fed. Cir. 1997); Travelstead v. Derwinski,
978 F.2d 1244, 1247–49 (Fed. Cir. 1992). That require-
ment avoids “piecemeal appellate review without preclud-
ing 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).
SANCHEZ-NAVARRO v. MCDONALD 5
We have carved out a narrow exception to that gen-
eral requirement, however, and will only review a remand
order from the Veterans Court if three conditions are met:
(1) there must have been a clear and final decision
of a legal issue that (a) is separate from the re-
mand proceedings, (b) will directly govern the re-
mand proceedings, or (c) if reversed by this court,
would render the remand proceedings unneces-
sary; (2) the resolution of the legal issues must
adversely affect the party seeking review; and,
(3) there must be a substantial risk that the deci-
sion would not survive a remand, i.e., that the re-
mand proceeding may moot the issue.
Williams, 275 F.3d at 1364.
Sanchez-Navarro argues that the exception to finality
applies here because the Veterans Court rendered a clear
and final legal decision—namely, that consistency be-
tween the veteran’s claimed in-service stressors and the
places, types, and circumstances of his service is a ques-
tion of fact—that would likely become moot after remand.
We disagree. The remand order in this case does not
satisfy all three Williams criteria. First, the decision that
any “consistency” determination is a question of fact has
not adversely affected Sanchez-Navarro. Indeed, he can
still obtain relief on his PTSD claim and submit addition-
al evidence and argument to the Board on remand. Cf.
Allen v. Principi, 237 F.3d 1368, 1373 (Fed. Cir. 2001)
(reviewing a remand order that precluded the veteran
from relying on certain evidence, where it was clear that
the remand would not grant the veteran the relief he
sought).
Second, there is no substantial risk that we would be
unable to review the alleged legal error at a later time.
Sanchez-Navarro can appeal from any adverse ruling by
the Board and argue that the remand was improper or
6 SANCHEZ-NAVARRO v. MCDONALD
that the consistency determination was decided wrongly
as a matter of fact. Cf. Dambach v. Gober, 223 F.3d 1376,
1379 (Fed. Cir. 2000) (reviewing a remand order because
it “alter[ed] the evidentiary burdens” on remand and
likely made the legal issue unreviewable on appeal from a
final order denying relief).
To the extent Sanchez-Navarro argues that a remand
would be futile, we rejected that argument in Williams.
See 275 F.3d at 1365 (“Williams’s basic contention here is
that remand proceedings are unnecessary and burden-
some, but that does not render the interim decision of the
Court of Appeals for Veterans Claims final for purposes of
our review.”). Moreover, in this case, even if the Veterans
Court were to conclude that Sanchez-Navarro’s claimed
stressors are consistent with the places, types, and cir-
cumstances of his service, it would still need to remand to
the Board for a medical examination and a determination
“whether the government has established ‘clear and
convincing evidence’” that his claimed stressor is inade-
quate to support his PTSD diagnosis. See Sanchez-
Navarro, 774 F.3d at 1384–85. It cannot be the case that
Sanchez-Navarro is entitled to an intermediate appeal for
an alleged legal error, one that we can certainly review
after a final decision, when a remand is still necessary to
establish a claim for benefits. Thus, Sanchez-Navarro has
not met the requirements for an exception to the general
rule that remands to the Board are not final decisions.
CONCLUSION
We have considered the remaining arguments, but
conclude that they are without merit. For the foregoing
reasons, we dismiss for lack of jurisdiction.
DISMISSED