Ebel v. SHINSEKI

United States Court of Appeals

for the Federal Circuit

__________________________

GINETTE J. EBEL,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee.

__________________________

2011-7125

__________________________

Appeal from the United States Court of Appeals for

Veterans Claims in case no. 08-4130, Judge Frank Q.

Nebeker.

__________________________

Decided: March 21, 2012

__________________________

PHILIP ANDREW RILEY, Finnegan, Henderson,

Farabow, Garrett & Dunner, LLP, of Washington, DC,

argued for claimant-appellant. With him on the brief

were DORIS JOHNSON HINES and RONALD L. SMITH.

MARTIN F. HOCKEY, JR. Assistant Director, Commer-

cial Litigation Branch, Civil Division, United States

Department of Justice, of Washington, DC, argued for

respondent-appellee. With him on the brief were TONY

EBEL v. DVA 2

WEST, Assistant Attorney General, JEANNE E. DAVIDSON,

Director, and LAUREN A. WEEMAN, Trial Attorney. Of

counsel on the brief were DAVID J. BARRANS, Deputy

Assistant General Counsel, and RACHAEL T. SHENKMAN,

Attorney, United States Department of Veterans Affairs,

of Washington, DC.

__________________________

Before PROST, SCHALL, and REYNA, Circuit Judges.

PROST, Circuit Judge.

Ginette J. Ebel appeals a decision of the United

States Court of Appeals for Veterans Claims (“Veterans

Court”) to vacate and remand the decision of the Board of

Veterans’ Appeals (“Board”) denying Mrs. Ebel’s claim for

service connection on behalf of her deceased husband.

Ebel v. Shinseki, No. 08-4130, 2011 WL 378851 (Vet. App.

Feb. 7, 2011). Because the decision of the Veterans Court

was not a final decision, we dismiss the appeal for lack of

jurisdiction.

BACKGROUND

Lowell A. Ebel (“the veteran”) served in the U.S.

Army and then the U.S. Navy in the 1960s. Specifically,

from February 1966 to February 1967 and from Novem-

ber 1968 to November 1969, Mr. Ebel served in Vietnam.

The veteran was honorably discharged and subsequently

received service connection compensation for arthritis and

hearing loss. In November 1993, Mr. Ebel had a malig-

nant melanoma surgically removed from his umbilicus.

The malignant melanoma continued to spread and in

October 1994, he died from respiratory arrest ultimately

due to malignant melanoma.

3 EBEL v. DVA

Mrs. Ebel, the surviving widow, filed an Application

for Dependency and Indemnity Compensation (“DIC”),

alleging that her husband’s death was service connected.

Specifically, Mrs. Ebel argued that her husband’s malig-

nant melanoma was the result of his exposure to Agent

Orange and extensive sunlight while serving in Vietnam.

In November 1994 and in May 1998, the Department of

Veterans Affairs (“VA”) Regional Office (“RO”) denied

Mrs. Ebel’s claim for service connection.

In 2004, Mrs. Ebel filed the current claim for service

connection and submitted an internet article discussing

an Air Force study that found an elevated risk of mela-

noma in Air Force veterans who were exposed to Agent

Orange. After the RO refused to reopen the claim, the

Board reopened and remanded the claim, finding that the

internet article constituted new and material evidence

that needed to be considered in addition to the veteran’s

medical records.

On remand, a VA medical examiner reviewed the

medical records on file, including those created during his

period of service and leading up to Mr. Ebel’s death, and

various articles regarding the correlation between mela-

noma and Vietnam veterans. In his April 2008 VA opin-

ion (“examiner’s opinion”), the examiner determined that

“[i]t is at least as likely as not . . . that the veteran’s

melanoma was causally related to his active duty service,

including exposure to herbicide agents and sunlight.” J.A.

50. The RO again denied the claim, finding that “the

examiner[‘s] opinion is unsubstantiated by the medical

evidence of record” and otherwise there was “no evidence

showing malignant melanoma manifest to a compensable

degree within the one year presumptive period following

discharge from service.” J.A. 43. Mrs. Ebel appealed.

EBEL v. DVA 4

On October 21, 2008, the Board affirmed the RO’s de-

nial. While the Board noted the various medical records

documenting Mr. Ebel’s health from his time in service

until his death in 1994, it based its decision on the rela-

tive weight of the examiner’s opinion as compared to

various National Academy of Science (“NAS”) reports. It

found that the “April 2008 opinion is certainly competent

evidence of causation and must be considered,” but con-

cluded that this one opinion was not entitled to more

weight than the VA findings based on the NAS reports.

J.A. 24-26. The Board reasoned that if “credible evidence

for an association between a disorder and herbicide

exposure was equal to or outweighed the evidence

against, then by law [the] VA would be required to estab-

lish a presumption.” J.A. 26. Because no presumption

could be established, the Board concluded that the medi-

cal opinion could not be sufficient to establish a service

connection.

On appeal, the Veterans Court vacated and re-

manded. It held that “the Board improperly weighed the

VA [examiner’s] opinion providing a direct nexus against

the NAS studies that pertain to whether a disease should

be considered presumptively due to exposure to Agent

Orange.” Ebel, 2011 WL 378851, at *3. Because the

Board improperly weighed direct service connection

evidence against presumptive service connection evidence,

the Veterans Court found that the Board “did not ade-

quately consider the evidence of record” and its “state-

ment of reasons and bases [was] inadequate to facilitate

review.” Id. at *3-4. The Veterans Court ordered the

Board to properly consider the examiner’s opinion and

other direct service connection evidence and to determine

whether, in view of this evidence, equipoise exists war-

ranting grant of direct service connection. Id. at *4.

5 EBEL v. DVA

DISCUSSION

The threshold issue in this case is whether this court

has jurisdiction over Mrs. Ebel’s appeal. Our jurisdiction

to review decisions of the Veterans Court is governed by

38 U.S.C. § 7292. Under § 7292, we have “exclusive

jurisdiction to review and decide any challenge to the

validity of any statute or regulation, or an interpretation

thereof,” but, absent a constitutional issue, we cannot

review factual determinations or challenges to the appli-

cation of a law or regulation to facts. 38 U.S.C. § 7292(c)-

(d).

Unlike statutes governing cases appealed from other

tribunals, this provision does not explicitly premise

appellate review on the finality of the Veterans Court’s

decision. Compare 28 U.S.C. § 1295(a)(1) (conferring

jurisdiction over “an appeal from a final decision of a

district court”) with 38 U.S.C. § 7292(a) (“After a decision

of the [Veterans Court] is entered in a case, any party to

the case may obtain a review of the decision . . . .”).

Nonetheless, we have “‘generally declined to review non-

final orders of the Veterans Court.’” Joyce v. Nicholson,

443 F.3d 845, 849 (Fed. Cir. 2006) (quoting Williams v.

Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002)). This

finality rule serves several purposes: it “promot[es] effi-

cient judicial administration,” “emphasize[s] the defer-

ence that appellate courts owe to the trial judge,” and

“reduces harassment of opponents and the clogging of the

courts through successive appeals.” Williams, 275 F.3d at

1364 (citing Firestone Tire & Rubber Co. v. Risjord, 449

U.S. 368, 374 (1981)).

Thus, we generally do not review the Veterans Court’s

remand orders because they are not final decisions.

Joyce, 443 F.3d at 849 (“We have repeatedly made clear

EBEL v. DVA 6

that a decision by the [Veterans Court] remanding to the

Board is non-final and not reviewable.”); Jones v. Nichol-

son, 431 F.3d 1353, 1357 (Fed. Cir. 2005); Williams, 275

F.3d at 1363; Adams v. Principi, 256 F.3d 1318, 1321

(Fed. Cir. 2001). We will depart from this strict rule of

finality only when three conditions (the Williams condi-

tions) are met:

(1) [T]here 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.

Williams, 275 F.3d at 1364 (footnotes omitted); see

Mlechick v. Mansfield, 503 F.3d 1340, 1343 (Fed. Cir.

2007); Joyce, 443 F.3d at 849; Jones, 431 F.3d at 1358.

This exception to the finality rule is narrow. Jones, 431

F.3d at 1358 & n.3 (noting that the Supreme Court has

emphasized that departures from the finality rule should

occur “‘only when observance of it would practically defeat

the right to any review at all’” (quoting Flanagan v.

United States, 465 U.S. 259, 263 (1984))); Conway v.

Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (explaining

that the Williams conditions are met only in rare circum-

stances); Adams, 256 F.3d at 1321 (noting that the final-

ity rule should only give way in “unusual circumstances”).

7 EBEL v. DVA

The remand order in this case does not meet the nar-

row exception articulated in Williams. 1 Upon a close

reading of the remand order, we do not find that the

Veterans Court made a clear and final decision on a legal

issue as necessary under the first Williams condition.

Mrs. Ebel does not allege that the remand order misinter-

prets any statutory or regulatory language or misapplies

binding case law. 2 Rather, Mrs. Ebel alleges that the

Veterans Court committed error by remanding and that it

should have found that the examiner’s report was suffi-

cient to establish direct service connection and reversed.

This is not a legal issue over which we have jurisdiction

but rather presents questions of fact and questions of law

1 If we were to hold otherwise, then virtually any

petitioner would satisfy the Williams conditions by

merely appealing a remand order and arguing that the

petitioner was entitled to a reversal on the record. Such a

holding would cause the allegedly narrow exception under

Williams to swallow our strict rule of finality.

2 Unlike the remand order here, prior remand or-

ders in which we have found the first Williams condition

satisfied involved the Veterans Court’s interpretation of

statutes or regulations, or binding case law. See, e.g.,

Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275 (Fed. Cir.

2009) (finding the clear and final decision was that 38

U.S.C. § 5103(a) required the VA to provide a veteran

with relevant criteria); Mlechick, 503 F.3d at 1343-44

(holding that the clear and final legal decision was the

Veterans Court’s interpretation of the rule of prejudicial

error); Smith v. Nicholson, 451 F.3d 1344, 1348 (Fed. Cir.

2006) (finding that the court’s interpretation of the regu-

lations was a clear and final decision on a legal issue);

Myore v. Principi, 323 F.3d 1347, 1351 (Fed. Cir. 2003)

(finding that the Veterans Court’s interpretation of

§§ 1310(a) and 1110 was a clear and final decision on a

legal issue).

EBEL v. DVA 8

applied to fact. 38 U.S.C. § 7292; see Cook v. Principi, 353

F.3d 937, 941 (Fed. Cir. 2003). To evaluate the issue Mrs.

Ebel appeals, first we would need to analyze the sur-

rounding facts, such as whether the examiner’s opinion is

the only evidence on record and is sufficient, standing

alone, to establish a direct service connection; then, we

would need to evaluate the remand decision for an abuse

of discretion. See Appellant’s Br. 20-21 (asking this court

to determine that Mrs. Ebel satisfied the requirements

necessary to prove entitlement to DIC). Because the issue

Mrs. Ebel raises is not a legal one, she does not satisfy the

jurisdictional requirements for non-final orders articu-

lated in Williams. To hold otherwise would lead to the

odd result that an appeal could satisfy the first condition

under Williams—that there was a clear and final decision

of a legal issue—but not the jurisdictional statute limiting

our jurisdiction to questions of law.

Nevertheless, Mrs. Ebel argues that case law requires

us to find that her challenge to the Veterans Court’s

decision to remand satisfies the first Williams condition.

While we have previously found that a decision to remand

could constitute a clear and final legal decision satisfying

the first Williams condition, this case is distinguishable.

Unlike other cases, such as Byron v. Shinseki, where the

Veterans Court explicitly analyzed its statutory authority

and held that it did not have the authority to reverse and

must remand, the court here made no such legal determi-

nation and Mrs. Ebel does not allege that any statute was

violated. No. 2011-7170, slip op. (Fed. Cir. Feb. 17, 2012)

(finding the first condition met where the Veterans Court

decision analyzed case law to determine that reversal was

precluded and remand was required); see Joyce, 443 F.3d

at 849 (“We have repeatedly made clear that a decision by

the [Veterans Court] remanding to the Board is non-final

and not reviewable. . . . [unless] the remand action itself

9 EBEL v. DVA

would independently violate the rights of the veteran, for

example, where a remand would be barred by statute.”).

Rather, the Veterans Court evaluated the Board’s factual

determinations and remanded because the “Board did not

adequately consider the evidence of record” such that the

Board’s “statements of reasons and bases [were] inade-

quate to facilitate review.” Ebel, 2011 WL 378851, at *3-

4. The basis of this remand is most similar to that of

Williams, where we held that the first condition was not

met because “the [Veterans Court] has merely remanded

for further consideration of the issues by the Board as a

predicate to further review of those issues by the [Veter-

ans Court].” 275 F.3d at 1365. Mrs. Ebel counters that

her case is more analogous to Adams, a pre-Williams case

in which we reviewed a non-final remand order. Yet, the

decision in Adams is limited. According to the opinion,

the case presented “unusual circumstances”—the veteran

had already established entitlement to compensation

based on a presumptive service connection and was

arguing that because he had an established right to a

favorable decision, the remand was prohibited. Adams

256 F.3d at 1321; see also Stevens v. Principi, 289 F.3d

814, 817 (Fed. Cir. 2002) (finding the first condition met

where the veteran presented similarly unusual circum-

stances). Mrs. Ebel’s appeal does not present these

unusual circumstances. There was no finding that Mrs.

Ebel has an entitlement to a finding of direct service

connection 3 and Mrs. Ebel does not allege that the re-

3 On appeal, Mrs. Ebel has represented that the ex-

aminer’s opinion is the only evidence of direct service

connection and thus entitlement is guaranteed. The

record suggests otherwise. The Board’s decision describes

various service records and personal medical records that

are already in the record but were not considered when

the Board weighed the evidence. See J.A. 22-24, 43. As

the Secretary indicated during oral argument, in addition

EBEL v. DVA 10

mand was for a prohibitive purpose or violated statutory

authority. Thus, Mrs. Ebel has failed to identify a clear

and final decision on a legal issue over which this court

has jurisdiction and our case law is of no avail to her.

In order for this court to have jurisdiction over a non-

final remand order, each of the Williams conditions must

be met. Because Mrs. Ebel has not met the first Williams

condition, we dismiss her appeal for lack of jurisdiction.

DISMISSED

to the examiner’s opinion, those records are pertinent to a

direct service connection determination.