Garciamedina v. McDonough

Case: 22-1104 Document: 39 Page: 1 Filed: 05/15/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ERNESTO A. GARCIAMEDINA,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1104
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-7947, Judge Amanda L. Mere-
dith.
______________________
Decided: May 15, 2023
______________________
KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
AMANDA TANTUM, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., REBECCA
SARAH KRUSER, PATRICIA M. MCCARTHY; AMANDA
BLACKMON, Y. KEN LEE, SAMANTHA ANN SYVERSON, Office
Case: 22-1104 Document: 39 Page: 2 Filed: 05/15/2023
2 GARCIAMEDINA v. MCDONOUGH
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before HUGHES, STOLL, and STARK, Circuit Judges.
HUGHES, Circuit Judge.
Ernesto Garciamedina appeals an interlocutory order
of the Court of Appeals for Veterans Claims vacating and
remanding a 2019 decision by the Board of Veterans’ Ap-
peals. Because this non-final order does not fall into the
limited class of orders that we will consider under Williams
v. Principi, 275 F.3d 1361 (Fed. Cir. 2002), we dismiss.
I
Mr. Garciamedina served in the United States Marine
Corps from 1999 to 2003. In 2003, a VA regional office (RO)
assigned him a 10 percent rating for left and right shoulder
disabilities. The RO rated Mr. Garciamedina’s shoulder
condition under 38 C.F.R. § 4.71a, Diagnostic Code (DC)
5299-5203.
In 2016, Mr. Garciamedina brought a claim of clear and
unmistakable error (CUE) to revise the 2003 rating deci-
sion. Mr. Garciamedina argued that the RO selected the
wrong DC and that he should have been assigned instead
a 20 percent disability rating for each shoulder under 38
C.F.R. § 4.59 and DC 5201. The RO denied his CUE claim
and he appealed to the Board.
The Board issued a decision denying Mr. Garciame-
dina’s CUE claim. The Board held that there was no CUE
in the 2003 decision. Although the Board acknowledged §
4.59, it stated—without citation or support—that “[p]rior
to May 23, 2016, it was longstanding VA policy to interpret
‘the minimum compensable rating’ for a joint as a 10 per-
cent rating, irrespective of the diagnostic code involved”
and thus the RO in 2003 was “keeping with standard prac-
tice at the time” when it assigned Mr. Garciamedina a 10
Case: 22-1104 Document: 39 Page: 3 Filed: 05/15/2023
GARCIAMEDINA v. MCDONOUGH 3
percent rating. J.A. 42. The Board then stated that Sowers
v. McDonald, 27 Vet. App. 472 (2016) resulted in a change
in VA policy on May 23, 2016.
Mr. Garciamedina then appealed to the Veterans
Court. The Veterans Court “conclude[d] that the Board pro-
vided inadequate reasons or bases for its decision.” J.A. 8.
According to the Veterans Court, “the Board here did not
provide any explanation for its pronouncement that VA
policy changed as a result of Sowers . . . . Accordingly, the
Court’s review of the Board’s decision is frustrated.” J.A. 8.
The Veterans Court remanded the case to the Board. The
Veterans Court said that Mr. Garciamedina was free to
submit new arguments, including any raised in the appeal
and specifically directed the Board to consider Mr. Garci-
amedina’s arguments.
II
We have “‘generally declined to review non-final orders
of the Veterans Court.’” Williams v. Principi, 275 F.3d
1361, 1364−65 (Fed. Cir. 2002) (quoting Adams v. Principi,
256 F.3d 1318, 1320 (Fed. Cir. 2001)); see also Winn v.
Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). Consequently, re-
mand orders are “ordinarily [] not appealable because they
are not final.” Adams, 256 F.3d at 1320.
Our decision in Williams provides a limited exception.
We will depart from the strict rule of finality when a vet-
eran establishes that: (1) the Veterans Court issued a clear
and final decision of a legal issue that (a) is separate from
the remand proceedings, (b) will directly govern the re-
mand proceedings, or, (c) if reversed by this court, would
render the remand proceedings unnecessary; (2) the reso-
lution of the legal issue adversely affects the party seeking
review; and (3) there is a substantial risk that the decision
would not survive a remand, i.e., that the remand proceed-
ing may moot the issue. Williams, 275 F.3d at 1364.
Case: 22-1104 Document: 39 Page: 4 Filed: 05/15/2023
4 GARCIAMEDINA v. MCDONOUGH
III
Mr. Garciamedina argues that we have jurisdiction to
review this interlocutory remand order under Williams.
Mr. Garciamedina posits that the remand decision serves
as the Veterans Court’s final ruling that “it may not inter-
pret the law unless or until the Board provides an explana-
tion for its legal ruling.” Appellant’s Br. 12. We disagree.
The remand decision before us does not satisfy any of the
Williams conditions.
The remand decision does not satisfy the first condition
as there is no clear and final decision of a legal issue. Here,
the Veterans Court did not even consider—let alone hold—
whether it could review the Board’s decision without a
proper explanation for the Board’s pronouncement that VA
policy changed because of Sowers. The remand decision
does not satisfy the second condition because the remand
decision does not adversely affect Mr. Garciamedina. The
remand decision does not satisfy the third condition be-
cause there is not a substantial risk that the remand pro-
ceedings will moot the issue.
IV
For the foregoing reasons, the non-final remand order
is not immediately appealable. Therefore, we dismiss the
appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.