Document Info

DocketNumber: 2005-7152

Filed Date: 3/30/2006

Status: Precedential

Modified Date: 3/3/2016

  • Error: Bad annotation destination
    United States Court of Appeals for the Federal Circuit
    05-7152
    THOMAS G. JOYCE,
    Claimant-Appellant,
    v.
    R. JAMES NICHOLSON, Secretary of Veterans Affairs,
    Respondent-Appellee.
    Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
    claimant-appellant.
    John S. Groat, Trial Attorney, Commercial Litigation Branch, Civil Division, United
    States Department of Justice, of Washington, DC, argued for respondent-appellee.
    With him on the brief were Peter D. Keisler, Assistant Attorney General, David M.
    Cohen, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were
    David J. Barrans and Amanda R. Blackmon, Attorneys, United States Department of
    Veterans Affairs, of Washington, DC.
    Appealed from: United States Court of Appeals for Veterans Claims
    Judge Jonathan R. Steinberg
    United States Court of Appeals for the Federal Circuit
    05-7152
    THOMAS G. JOYCE,
    Claimant-Appellant,
    v.
    R. JAMES NICHOLSON, Secretary of Veterans Affairs,
    Respondent-Appellee.
    ___________________________
    DECIDED: March 30, 2006
    ___________________________
    Before LOURIE, RADER, and DYK Circuit Judges.
    DYK, Circuit Judge.
    Thomas G. Joyce (“Joyce”) appeals the decision of the Court of Appeals for
    Veterans Claims. That decision affirmed in part, reversed in part, vacated in part, and
    remanded in part the decision of the Board of Veterans Appeals (the “Board”) finding no
    clear and unmistakable error (“CUE”) in a 1955 Veterans’ Administration (“VA”) regional
    office (“RO”) decision denying Joyce’s disability compensation application. Joyce v.
    Nicholson, No. 03-0059 (Vet. App. Mar. 22, 2005). Because we conclude that the
    decision of the Court of Appeals for Veterans Claims is not final for purposes of our
    review, we dismiss.
    BACKGROUND
    Disability compensation for veterans is typically of two different types -- one for
    service connection where the injury or disease first manifested itself during service and
    another for in-service aggravation when a preexisting injury or disease is aggravated by
    service. A successful service connection claim results in full compensation for the injury
    or disease; aggravation claimants receive compensation reduced according to the
    degree of disability existing at the date of entrance into service. 
    38 C.F.R. § 3.322
    (2005); Wagner v. Principi, 
    370 F.3d 1089
    , 1096 (Fed. Cir. 2004).
    As we discussed in Wagner, 
    370 F.3d at 1093-96
    , a different regime prevails
    under 
    38 U.S.C. § 1110
    , which governs disability compensation for veterans who
    served during wartime. If the disability was not noted upon entry into service, wartime
    service disability compensation claimants benefit from a presumption of soundness
    which, if unrebutted, supports a finding that the disability was service-connected. The
    government may rebut this presumption of soundness only on a showing, by clear and
    unmistakable evidence: (1) that the disability preexisted service; and (2) that the
    disability was not aggravated due to service. 
    38 U.S.C. § 1111
     (2000); Wagner, 
    370 F.3d at 1093-96
    . To satisfy the second requirement for rebutting the presumption of
    soundness, the government must rebut a statutory presumption of aggravation by
    showing, by clear and unmistakable evidence, either that (1) there was no increase in
    disability during service, or (2) any increase in disability was “due to the natural
    progression” of the condition. 
    38 U.S.C. § 1153
     (2000); Wagner, 
    370 F.3d at 1096
    .1
    1
    Under the wartime service regime, if the disability was noted at the time of
    entry into service, the veteran may seek compensation for in-service aggravation, and is
    entitled to the presumption of aggravation on such claims. 
    38 U.S.C. § 1153
    ; Wagner,
    05-7152                                     2
    Our decision in Wagner made clear that, under the wartime service regime, there
    is only one claim for a disability not noted upon entry -- a claim for service connection.
    We concluded that under such circumstances the statute has “essentially . . . the effect
    of converting an aggravation claim into one for service-connected disability.” Wagner,
    
    370 F.3d at 1096
    . We have held, however, that where the regulations in existence at
    the time of the original decision imposed a different rule, Wagner cannot be the basis for
    a CUE claim. Jordan v. Nicholson, 
    401 F.3d 1296
    , 1298 (Fed. Cir. 2005).
    Joyce served on active duty in the Army from December 7, 1953, to April 30,
    1954, during the Korean conflict. Service in the Korean conflict qualifies as wartime
    service for disability compensation purposes. 
    38 C.F.R. §§ 3.2
    (e), 3.304(a) (2005). A
    medical examination of Joyce upon entry into service noted no disability. Joyce was
    separated from service due to disability after a subsequent medical examination
    revealed a duodenal ulcer. On November 3, 1955, Joyce applied to the RO for service-
    connected disability compensation for a duodenal ulcer pursuant to former Veterans’
    Regulation (“VR”) No. 1(a). The RO denied Joyce’s claim on November 30, 1955,
    concluding that Joyce’s ulcer “was not service incurred or aggravated.” 
    Id.
     In April
    1998, Joyce filed with the Board a CUE claim regarding the November 1955 RO
    decision, asserting that the RO improperly denied him an award of service-connected
    disability. The Board rejected Joyce’s claim in July 1998, but the Court of Appeals for
    Veterans Claims remanded to the Board for a more detailed statement of the reasons
    
    370 F.3d at 1096
    . The presumption of aggravation may be rebutted either by evidence
    showing that there was no increase in disability during service, or by evidence
    supporting “a specific finding that the increase in disability is due to the natural progress
    of the disease.” 
    38 U.S.C. § 1153
    .
    05-7152                                      3
    for the Board’s decision. On remand, the Board again rejected the claim on September
    25, 2002.
    On appeal from the Board’s September 25, 2002, decision, the Court of Appeals
    for Veterans Claims again remanded to the Board.          (Judge Hagel filed a separate
    concurrence.) The court declined to address whether our decision in Wagner applied to
    Joyce’s CUE claim because the court found that the regulations in effect in 1955
    adopted the same rule. Accordingly, the court viewed the case as involving a single
    claim -- one for service connection that could be established either by the presumption
    of soundness or the presumption of aggravation. The court concluded that clear and
    unmistakable evidence before the RO showed that Joyce’s condition preexisted service,
    and thus that the government had rebutted the presumption of soundness as to the
    preexisting condition prong of the inquiry. The court also found uncontested evidence in
    the RO record that Joyce’s disability had permanently increased in severity during
    service, and thus held that the RO was incorrect to conclude that Joyce’s condition was
    not aggravated during service. The court then turned to the question of whether Joyce’s
    condition was aggravated by service or by the disease’s natural progression. The court
    concluded that it was CUE for the RO to decide that the presumption of aggravation had
    been rebutted because, while the evidence before the RO contained an implicit finding
    by medical authorities that the aggravation was due to the natural progression of the
    disease, the evidence did not reflect a “specific finding that increase in disability is due
    to the natural progress of the disease.” The court held that such an explicit finding is
    required to rebut the presumption of aggravation under the regulation. The court thus
    vacated the judgment of no service connection and remanded for the Board to
    05-7152                                      4
    determine whether the RO’s error was outcome determinative, a required element of a
    CUE claim. See 
    38 C.F.R. § 3.105
     (2000); Cook v. Principi, 
    318 F.3d 1334
    , 1344-45
    (Fed. Cir. 2002) (en banc).
    Joyce timely appealed the decision of the Court of Appeals for Veterans Claims
    to this court, and we have jurisdiction pursuant to 
    38 U.S.C. § 7292
    .
    DISCUSSION
    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. Williams v. Principi, 
    275 F.3d 1361
    , 1363 (Fed.
    Cir. 2002) (internal quotation marks omitted). Williams established a three part test for
    deviation from the strict rule of finality:
    [W]e will depart from the strict rule of finality when the Court of Appeals for
    Veterans Claims has remanded for further proceedings only if three
    conditions are satisfied: (1) there must have been a clear and final
    decision of a legal issue that (a) is separate from the remand proceedings,
    (b) will directly govern the remand proceedings, or (c) if reversed by this
    court, would render the remand proceedings unnecessary; (2) the
    resolution of the legal issues must adversely affect the party seeking
    review; and (3) there must be a substantial risk that the decision would not
    survive such a remand, i.e., that the remand proceeding may moot the
    issue.
    
    Id. at 1364
     (footnotes omitted).
    We have repeatedly made clear that a decision by the Court of Appeals for
    Veterans Claims remanding to the Board is non-final and not reviewable. See, e.g.,
    Myore v. Principi, 
    323 F.3d 1347
    , 1351-53 (Fed. Cir. 2003); Winn v. Brown, 
    110 F.3d 56
    , 57 (Fed. Cir. 1997). The sole exception is where the remand action itself would
    independently violate the rights of the veteran, for example, where a remand would be
    05-7152                                       5
    barred by statute. Stevens v. Principi, 
    289 F.3d 814
    , 817 (Fed. Cir. 2002); Adams v.
    Principi, 
    256 F.3d 1318
    , 1321-22 (Fed. Cir. 2001).
    The parties here urge different views of the finality issue based on their different
    views as to the underlying claims. In Joyce’s view, because Joyce’s disability was not
    noted upon entry into service, Wagner establishes that there is only a single claim --
    one for service connection that is established either through the presumption of
    soundness or the presumption of aggravation. Joyce insists that we may review the
    decision of the Court of Appeals for Veterans Claims because the court improperly
    remanded when it should have reversed the finding of no service connection in view of
    the court’s conclusion that the government failed to rebut the presumption of
    aggravation. Alternatively, Joyce contends that if a remand was appropriate, the Court
    of Appeals for Veterans Claims’ remand instructions should have required a
    determination as to whether the government had properly overcome the presumption of
    soundness by clear and convincing evidence. Joyce urges that this alleged error, too, is
    reviewable at this time.
    The government, on the other hand, argues that under our decision in Jordan,
    Wagner is not a basis for a CUE claim, and thus for purposes of a CUE analysis there
    are two separate claims here -- one for service connection and one for aggravation.
    The government takes the position that the Court of Appeals for Veterans Claims’
    disposition of the service connection claim was final and is reviewable by this court, but
    the court’s disposition of the aggravation claim was not final and thus is not reviewable.
    In fact, we need not decide which view of the underlying claims is correct,
    because under either view, there is a lack of finality.
    05-7152                                       6
    If Joyce has only a single claim, review is only available if the Williams test is
    satisfied. As to the third prong of that test, Joyce argues that there is a substantial risk
    that “the remand proceeding may moot the issue” because the alleged errors in the
    Court of Veterans Claims’ decision will be binding on this court under the law of the
    case doctrine. We disagree. After completion of the remand proceedings and the entry
    of a final judgment by the Court of Appeals for Veterans Claims, the veteran may raise
    any objections to the judgment that was entered, whether the errors arose from the
    original Court of Appeals for Veterans Claims decision or the second and final decision.
    While the first Court of Appeals for Veterans Claims decision will be law of the case for
    the Court of Appeals for Veterans Claims, it will not, of course, in any way bind this
    court. 18B Charles Allan Wright & Arthur R. Miller, Federal Practice and Procedure
    § 4478.6 (2d ed. 2002) (“[A] court of appeals is free to review the original ruling after a
    district court or administrative agency has adhered to the ruling as the law of the
    case.”).    Accordingly, if there is only a single claim, review is unavailable under
    Williams.
    If this case involves separate claims for service connection and aggravation, as
    the government urges, then the decision of the Court of Appeals for Veterans Claims
    nevertheless is not final. To be sure, under some circumstances review is available for
    a claim for which final judgment has been entered even if other, separate claims have
    been remanded. We addressed this issue in Elkins v. Gober, 
    229 F.3d 1369
    , 1376
    (Fed. Cir. 2000).   There, the Board denied Elkins’ claims of service connection for
    headaches and back pain resulting from an automobile accident. The Veterans Court
    affirmed as to the headache claim, remanded the claim for back pain to the Board, and
    05-7152                                      7
    rejected Elkins’ argument that the medical evidence regarding his headaches also
    established a claim for service-connected neck pain. 
    Id. at 1372
    . Elkins appealed the
    Veterans Court’s decision as to his headache and neck pain claims to this court. We
    held that “[b]ecause . . . each ‘particular claim for benefits’ may be treated as distinct for
    jurisdictional purposes, a veteran’s claims may be treated as separable on appeal.” 
    Id. at 1376
     (quoting Maggitt v. West, 
    202 F.3d 1370
    , 1376 (Fed. Cir. 2000)) (citation
    omitted). We made clear, however, that we will not review final judgments on separable
    claims where other claims are still pending if our review would “disrupt the orderly
    process of adjudication” -- for example, where the appealed claim is “inextricably
    intertwined” with the remanded claim. 
    Id. at 1374-76
    . Here, even if two separate claims
    are involved, Joyce’s assertedly separate claims are inextricably intertwined because
    both claim compensation for the same disability.          Review of the Veterans Court’s
    decision as to the service connection claim is unavailable under Elkins because it would
    “disrupt the orderly process of adjudication.”
    We conclude that the decision of the Court of Appeals for Veterans Claims is not
    final and thus not reviewable by this court.
    DISMISSED.
    COSTS
    No costs.
    05-7152                                        8