NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-7135
HOWARD F. EDWARDS,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: December 6, 2005
___________________________
Before CLEVENGER, SCHALL, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Howard F. Edwards appeals from a decision of the Court of Appeals for Veterans
Claims (“the Veterans Court”) remanding two cases to the Board of Veterans’ Appeals
and denying Mr. Edwards’s motions to supplement the record and to supplement his
reply brief. Edwards v. Principi, No. 02-0937 (Vet. App. Oct. 26, 2004). For the reasons
discussed below, we conclude that this court lacks jurisdiction to review the Veterans
Court’s remand order. We therefore dismiss Mr. Edwards’s appeal to this court.
BACKGROUND
Mr. Edwards served on active duty with the United States Army in the early
1950s. In 1954, a Veterans Administration regional office awarded Mr. Edwards a
noncompensable rating for residuals of fractures of the transverse processes at L-2 and
L-3. In 1975, the regional office denied service connection for retroperitoneal fibrosis
(“RPF”), a condition that Mr. Edwards alleged was related to the L-2 and L-3 injury. Mr.
Edwards appealed that decision to the Board of Veterans’ Appeals, which affirmed the
regional office’s decision. In 1997, in response to a claim filed by Mr. Edwards, the
regional office ruled that Mr. Edwards’s RPF condition was service connected. The
regional office made that decision effective as of April 5, 1989, but it granted Mr.
Edwards a noncompensable rating for that condition. Mr. Edwards filed a notice of
disagreement with that decision in 1998.
In early 2000, Mr. Edwards requested reconsideration of the 1975 Board decision
that denied service connection for his RPF condition, arguing that there was clear and
unmistakable error (“CUE”) in the Board’s 1975 decision. In the first of two decisions
issued in March 2000, the Board denied Mr. Edwards’s claims for an earlier effective
date for the grant of service connection for RPF and for a total rating based on
individual unemployability, and it denied his request for an increased evaluation for the
residuals of the transverse processes injury. In the second decision, the Board denied
Mr. Edwards’s CUE claim. In October 2001 the Veterans Court vacated both of those
Board decisions and remanded both cases to the Board for readjudication.
On June 17, 2002, the Board of Veterans’ Appeals again issued two opinions
denying Mr. Edwards’s then-pending claims. The first Board decision denied his claim
to an effective date prior to April 5, 1989, for the determination of service connection for
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RPF, denied an increased evaluation for residuals of the transverse process fractures,
and denied his request for a rating of total disability based on individual unemployability.
In that decision, the Board concluded that Mr. Edwards’s 1998 notice of disagreement
challenged the effective date of service connection for RPF, but that it did not challenge
the RPF rating assigned in 1997. The second Board decision rejected Mr. Edwards’s
challenge to the 1975 Board decision, which was based on his assertion that the 1975
decision was the result of CUE.
Mr. Edwards appealed both of the 2002 Board decisions to the Veterans Court.
With respect to the first of those decisions, the court held that the Board did not provide
an adequate explanation of why it viewed Mr. Edwards’s 1998 notice of disagreement
as being limited to challenging the effective date for service connection for RPF. In the
court’s view, Mr. Edwards’s notice of disagreement also challenged the
noncompensable RPF rating assigned by the regional office in 1997. With respect to
the other claims raised in both the first and second of the Board decisions, the court
concluded that Mr. Edwards’s CUE claim and the effective date for service connection
for RPF were “inextricably intertwined” with the RPF rating. The court therefore
remanded both cases to the Board, ordering the Board to “address the appellant’s
contention regarding his rating for RPF, or give an adequate statement of reasons or
bases as to why it finds that such a claim was not raised by the appellant.” The remand
order also disposed of Mr. Edwards’s motions to supplement the record and to
supplement his reply brief by providing that “on remand Mr. Edwards is free to submit
additional evidence and argument necessary to the resolution of his claim.”
05-7135 3
DISCUSSION
In applying the statute that grants us jurisdiction over appeals from the Veterans
Court, 38 U.S.C. § 7292, we have generally declined to review nonfinal orders of that
court. In particular, we have held that remand orders ordinarily are not appealable,
because they are not final orders. See Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir.
1997). We have, however, recognized exceptions to this general rule. For example, we
have exercised review “when the remand disposes of an important legal issue that
would be effectively unreviewable at a later stage of the litigation.” Allen v. Principi, 237
F.3d 1368, 1372 (Fed. Cir. 2001) (internal quotation marks omitted). We have also
recognized an exception that gives us jurisdiction when a veteran’s case involves
multiple separate claims, and the Veterans Court has remanded some of the claims but
reached final judgment on others. Elkins v. Gober, 229 F.3d 1369, 1375-76 (Fed. Cir.
2000). In those cases, however, our jurisdiction is limited to reviewing claims that were
finally decided by the Veterans Court and that are not intertwined with remanded claims.
See Allen, 237 F.3d at 1374.
In the present case, the Veterans Court’s decision did not finally decide any
issue. Mr. Edwards presented multiple claims in his two appeals, and the Veterans
Court found that the claims were inextricably intertwined. The court concluded that the
rating for RPF, the effective date for RPF, and Mr. Edwards’s CUE claim all involve the
same condition (RPF), and that the remand proceedings could affect all of them. Thus,
there is no final judgment with respect to any of Mr. Edwards’s claims. Moreover, the
Veterans Court did not finally dispose of any legal issue that will affect the remand
proceedings. Mr. Edwards’s claims and arguments will be preserved on remand, and
05-7135 4
he will be free to raise them in a subsequent appeal. Thus, we defer to the “orderly
process of adjudication,” Elkins, 229 F.3d at 1373, by allowing the remand proceedings
to run their course rather than interfering in the ongoing decisional process conducted
by the Board and the Veterans Court.
In his brief to this court, Mr. Edwards suggests that he never raised the RPF
rating issue, either before the Board or the Veterans Court. Instead, he argues, the
Board and the Veterans Court improperly “infused” that issue into his appeal. In Mr.
Edwards’s view, the only issue properly before the Board or the Veterans Court was his
CUE claim, which was remanded only because the Veterans Court found it to be
intertwined with his RPF rating claim. Accordingly, Mr. Edwards contends, the Veterans
Court erred in remanding the case, and this court should order the Veterans Court to
decide his CUE claim instead of remanding that matter to the Board.
The problem with Mr. Edwards’s argument is that he did not limit himself to the
CUE issue in his pleadings leading up to the Veterans Court’s remand order. In his
motions for rehearing in the Veterans Court and in his brief to this court, Mr. Edwards
focused only on his CUE claim. However, the Veterans Court was correct in noting that
Mr. Edwards’s 1998 notice of disagreement explicitly challenged the RPF rating. And in
his appeal to the Veterans Court, Mr. Edwards challenged both Board decisions, not
just the CUE decision. Thus, in light of the notice of disagreement and Mr. Edwards’s
papers in support of his appeal, the Veterans Court could not properly have limited the
scope of its review to the CUE issue. On remand, Mr. Edwards is free to abandon
particular claims and to limit himself to his CUE claim. But Mr. Edwards cannot contest
the decision of the Veterans Court to remand his appeal to the Board by now
05-7135 5
abandoning the claims that he pursued in that court, which resulted in the remand to the
Board.
Because the Veterans Court did not render a final judgment on any issue or
claim, and because it was not improper for that court to remand both cases in light of
the claims that were presented to it, there is no proper basis for us to exercise
jurisdiction at this time. Accordingly, Mr. Edwards’s appeal to this court is dismissed.
05-7135 6