United States Court of Appeals
for the Federal Circuit
__________________________
LADY LOUISE BYRON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7170
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-4634, Judge Mary J.
Schoelen.
___________________________
Decided: February 17, 2012
___________________________
EDWARD R. REINES, Weil, Gotshal & Manges, LLP, of
Redwood Shores, California, argued for claimant-
appellant. With him on the brief was JUSTIN M. LEE. Of
counsel on the brief were JEFFREY G. HOMRIG and
LAWRENCE OKEY ONYEJEKWE, JR., Kasowitz, Benson,
Torres & Friedman LLP, of San Francisco, California.
TARA K. HOGAN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
BYRON v. DVA 2
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and TODD M. HUGHES, Deputy Director. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, and BRIAN D. GRIFFIN, Attorney, United
States Department of Veterans Affairs, of Washington,
DC.
__________________________
Before NEWMAN, BRYSON, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
Ms. Lady Louise Byron appeals from a decision by the
Court of Appeals for Veterans Claims (Veterans Court)
remanding the case for further proceedings before the
Board of Veterans’ Appeals (Board). Byron v. Shinseki,
No. 09-4634, slip op., 2011 WL 2441683 (Ct. Vet. App.
June 20, 2011). Because the Veterans Court properly
remanded to the Board to make factual determinations in
the first instance, we affirm.
BACKGROUND
This case arises from the Board’s decision denying an
earlier effective date of service connection for the cause of
the death of Ms. Byron’s husband, a veteran. Ms. Byron
alleged that her husband developed cancer due to expo-
sure to radiation while he was serving on active duty.
Based on regulations that presume causation for certain
diseases, the Board awarded service connection with an
effective date of May 1, 1988. The Board did not deter-
mine whether Ms. Byron established a direct service
connection that was not based on the presumptions. On
appeal to the Veterans Court, the parties agreed that the
Board should have made such a determination because it
may entitle Ms. Byron to an earlier effective date. Ms.
3 BYRON v. DVA
Byron sought for the Veterans Court to reverse the
Board’s decision rather than vacate and remand it.
Because the Board did not consider the evidence or make
factual findings concerning direct service connection, the
Veterans Court remanded the case to the Board to make
such findings in the first instance. Byron, slip. op. at 8-9.
Ms. Byron now appeals the decision to remand.
DISCUSSION
Remand orders of the Veterans Court are normally
not reviewable, Adams v. Principi, 256 F.3d 1318, 1320
(Fed. Cir. 2001), but we have recognized exceptions to
that rule. In Adams, a case very similar to this one, we
held that a remand order was appealable because the
issue pressed by the appellant was that he had a legal
right not to be required to undergo a remand. In light of
that decision and our subsequent decision in Williams v.
Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002), in which
we set forth a three-part test to identify the class of cases
in which remand orders are directly appealable, we hold
that it is appropriate to review the remand order in this
case. This case satisfies that three-part test because the
Veterans Court’s decision was a clear and final decision of
the legal issue presented by Ms. Byron; the resolution of
that issue against Ms. Byron will be adverse to her by
forcing her to submit to a remand; and the remand will
effectively moot Ms. Byron’s claim that she has a legal
right to a decision of her claim without the need for a
remand. Following Adams and Williams, we have deline-
ated the circumstances where review of a remand order is
proper. See, e.g., Joyce v. Nicholson, 443 F.3d 845, 850
(Fed. Cir. 2006) (holding that we may not review a re-
mand order when the appellant is challenging the cor-
rectness of the analysis in the remand order); Myore v.
Principi, 323 F.3d 1347, 1351-52 (Fed. Cir. 2003) (same);
Stevens v. Principi, 289 F.3d 814, 817 (Fed. Cir. 2002)
BYRON v. DVA 4
(holding that we may review a remand order to determine
the Veterans Court’s authority to order a remand). This
case involves the same type of issue present in Adams and
Stevens, whether the Veterans Court has the authority to
reverse the Board rather than remand the case. Unlike
the issues in Joyce and Myore, the issue of whether the
Veterans Court has authority to reverse would become
moot once the case is remanded. Thus, this is one of the
rare circumstances where review of a remand order is
proper.
The scope of our review of a Veterans Court decision
is limited by statute. See 38 U.S.C. § 7292 (2006). Absent
a constitutional issue, we may not review challenges to
factual determinations or challenges to the application of
a law or regulation to facts. 38 U.S.C. § 7292(d)(2). We
review questions of law, including the interpretation of
statutes and regulations, de novo. DeLaRosa v. Peake,
515 F.3d 1319, 1321 (Fed. Cir. 2008).
The parties agree that the Board erred by not analyz-
ing whether Ms. Byron established a direct service con-
nection. The parties disagree, however, whether the
Veterans Court must remand, or whether it may assess
the facts in the first instance. We resolved this issue in
Hensley v. West, where we held that when the Board
misinterprets the law and fails to make the relevant
initial factual findings, “the proper course for the Court of
Appeals for Veterans Claims [is] to remand the case to the
[Board] for further development and application of the
correct law.” 212 F.3d 1255, 1264 (Fed. Cir. 2000). We
explained that the statutory provisions governing the
Veterans Court “are consistent with the general rule that
appellate tribunals are not appropriate fora for initial fact
finding.” Id. at 1263; see also 38 U.S.C. § 7261(c) (2006)
(“In no event shall findings of fact made by the Secretary
5 BYRON v. DVA
or the Board of Veterans’ Appeals be subject to trial de
novo by the [Veterans Court].”).
To the extent that Ms. Byron argues that Gonzales v.
Thomas, 547 U.S. 183 (2006) (per curiam) and INS v.
Ventura, 537 U.S. 12 (2002) (per curiam) provide other-
wise, we disagree. The Supreme Court held that when an
agency has not made an initial determination, “the proper
course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.”
Thomas, 547 U.S. at 186 (quoting Ventura, 537 U.S. at
16). In Ventura, the Supreme Court explained:
Generally speaking, a court of appeals should re-
mand a case to an agency for decision of a matter
that statutes place primarily in agency hands. . . .
The agency can bring its expertise to bear upon
the matter; it can evaluate the evidence; it can
make an initial determination; and, in doing so, it
can, through informed discussion and analysis,
help a court later determine whether its decision
exceeds the leeway that the law provides.
537 U.S. at 16-17. It is not enough that only a few factual
findings remain or that the applicant may have a strong
case on the merits. None of the rare circumstances found
in the cases cited by Ms. Byron from other circuits is
present in the current case. For example, this case does
not “involve[] a legal question, as opposed to the factual
questions that were at issue in Ventura and Thomas.” See
Calle v. U.S. Attorney Gen., 504 F.3d 1324, 1330 (11th Cir.
2007). This is also not a case where the agency analyzed
the issue in the first instance. See Sierra Club v. U.S.
Envtl. Prot. Agency, 346 F.3d 955, 962-63 (9th Cir. 2003).
Nor is this a case where the relevant facts were admitted.
See Hussain v. Gonzales, 477 F.3d 153, 156-57 (4th Cir.
2007). The government even acknowledged at oral argu-
BYRON v. DVA 6
ment that had they conceded the relevant facts, it would
have been proper for the Veterans Court to reverse rather
than remand. Oral Argument at 24:45-26:00, Byron v.
DVA, No. 2011-7170, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
11-7170.mp3. Finally, this is not a case where the Veter-
ans Court is finding facts related solely to the issue of
harmless error, which according to the statute, it may do
in the first instance. Newhouse v. Nicholson, 497 F.3d
1298, 1301-02 (Fed. Cir. 2007). When there are facts that
remain to be found in the first instance, a remand is the
proper course.
In this case, the government argues that at least two
unresolved factual issues must be addressed before Ms.
Byron may be awarded an earlier effective date based on
a direct service connection. In particular, Ms. Byron must
first show that her husband was exposed to radiation
during service. See 38 C.F.R. § 3.303. Ms. Byron must
also show that her husband’s death was caused by such
exposure. See id. It is not enough for Ms. Byron to claim
that all of the evidence of record supports her position.
The Board must still make an initial determination of
whether Ms. Byron has sufficiently supported a claim for
an earlier effective date. See Thomas, 547 U.S. at 186. It
may well be that the Board concludes that Ms. Byron has
established these facts. That, however, is precisely what
needs to be done by the fact-finding agency in the first
instance, not by a court of appeals.
For the foregoing reasons, we affirm the Veterans
Court’s decision remanding the case to the Board.
AFFIRMED