Benito R. Chavez v. Denis McDonough, Secretary of Veter- Ans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
BENITO R. CHAVEZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETER-
ANS AFFAIRS,
Respondent-Appellee
______________________
2022-1942
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-376, Judge Coral Wong Pietsch.
______________________
Decided: April 19, 2024
______________________
S EAN A. RAVIN, Miami, FL, argued for claimant-appel-
lant.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, C LAUDIA BURKE, P ATRICIA M. MC CAR-
THY ; AMANDA BLACKMON, BRIAN D. G RIFFIN, Office of Gen-
eral Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
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CHAVEZ v. MCDONOUGH 2
Before L OURIE, BRYSON, and STARK, Circuit Judges.
BRYSON, Circuit Judge.
Appellant Benito R. Chavez appeals from a decision of
the Court of Appeals for Veterans Claims (“the Veterans
Court”) in which that court remanded Mr. Chavez’s claim
to the Board of Veterans’ Appeals. Mr. Chavez argues that
the Veterans Court should have reversed the Board’s
decision rather than remanding the case to the Board, and
that this court should reverse the Veterans Court’s remand
order. The government contends that this court lacks
jurisdiction over Mr. Chavez’s appeal and therefore should
dismiss the appeal without addressing Mr. Chavez’s
contention that the Veterans Court’s remand order was
erroneous. We reject the government’s jurisdictional
argument but affirm the decision of the Veterans Court on
the merits.
I
Mr. Chavez served on active duty with the U.S. Army
during the 1960s, including service in Vietnam. In
September 2005, he sought service connection for post-
traumatic stress disorder (“PTSD”). Following a medical
examination by the Department of Veterans Affairs
(“DVA”), he was diagnosed with chronic, moderately severe
PTSD. A DVA regional office granted him service
connection for PTSD and assigned him a 100 percent
disability evaluation. The rating decision indicated that it
was possible that his condition could improve and that the
assigned evaluation would be subject to further
examination.
In September 2007, Mr. Chavez requested that his
rating be changed to permanent and total disability, a
request that led to a further medical examination. The
examiner concluded that although Mr. Chavez’s symptoms
were likely to be permanent, his condition did not and
would not likely result in total occupational impairment.
Accordingly, in February 2008, the regional office reduced
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CHAVEZ v. MCDONOUGH 3
his disability rating for PTSD to 50 percent, on the ground
that the evidence did not establish total occupational and
social impairment.
Mr. Chavez filed a notice of disagreement with the
regional office’s action, in response to which the regional
office increased his disability rating to 70 percent. In so
doing, however, the regional office reiterated that it did not
find any evidence in the record that Mr. Chavez suffered
from total occupational and social impairment.
Mr. Chavez then filed an appeal to the Board of
Veterans’ Appeals, which upheld the reduction in rating
from 100 percent to 70 percent. The Board found that the
evidence showed that Mr. Chavez’s PTSD symptoms
“sustained material improvement through his
participation in therapy; he went from the self-reported
severity of 10/10 to a situation where he began to
experience emotions, confide in his wife, and have renewed
interest in activities that bring him enjoyment.” JA 31. In
reaching that finding, the Board discussed not only the
information Mr. Chavez submitted to prevent the
reduction, but also treatment records postdating the rating
reduction. JA 9–10.
Mr. Chavez then appealed to the Veterans Court,
asking that the court reverse the Board’s decision outright
and order that his 100 percent rating be reinstated. The
Veterans Court agreed with Mr. Chavez that the Board
may have improperly relied on “evidence developed after
the rating reduction” in affirming the rating reduction. JA
8. The Veterans Court, however, did not reverse the
Board’s decision. Instead, it remanded the case to the
Board “to provide an adequate statement of reasons and
bases for its finding that Mr. Chavez’s PTSD disability
materially improved under the ordinary conditions of life
and work by the time of his rating decision.” Id.
II
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CHAVEZ v. MCDONOUGH 4
Mr. Chavez argues that the Veterans Court erred when
it remanded the case to the Board and that, because of the
Board’s errors, the court should have reversed the Board’s
decision and reinstated Mr. Chavez’s 100 percent rating.
Before reaching that argument, however, we must address
the government’s contention that we lack jurisdiction over
Mr. Chavez’s appeal.
The government contends that we lack jurisdiction in
this case because the Veterans Court’s remand order
sending this case back to the Board is not a final order that
is within this court’s appellate jurisdiction over appeals
from the Veterans Court.
The principles governing this court’s jurisdiction over
remand orders in Veterans Court appeals have been
frequently stated. As a general matter, this court reviews
only final decisions of that court. Adams v. Principi, 256
F.3d 1318, 1320 (Fed. Cir. 2001); Allen v. Principi, 237 F.3d
1368, 1372 (Fed. Cir. 2001) (“[O]ur jurisdiction is limited to
the review of final decisions of the Veterans Court, which
usually does not include remands.”). But there are limited
exceptions to that principle. As this court summarized the
matter in the seminal case of Williams v. Principi,
we 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 a remand, i.e.,
that the remand proceeding may moot the issue.
275 F.3d 1361, 1364 (Fed. Cir. 2002); see also Deloach v.
Shinseki, 704 F.3d 1370, 1375–76 (Fed. Cir. 2013); Ebel v.
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CHAVEZ v. MCDONOUGH 5
Shinseki, 673 F.3d 1337, 1340 (Fed. Cir. 2012); Byron v.
Shinseki, 670 F.3d 1202, 1204–05 (Fed. Cir. 2012).
The government contends that this case does not satisfy
the Williams test because Mr. Chavez is simply arguing that
the Veterans Court should have reversed the Board outright
rather than remanding the case to the Board for further
action. If the argument that the Veterans Court erroneously
remanded the case to the Board were sufficient to grant this
court jurisdiction over appeals from remand orders by the
Veterans Court, the government argues, “the narrow
exception under Williams would swallow the strict rule of
finality.” Deloach, 704 F.3d at 1377 n.1.
The government relies principally on the first factor
from Williams to support its argument of non-finality. It
contends that the Veterans Court did not make any “clear
and final decision on a legal issue,” but merely remanded for
further consideration of the issues by the Board as a
predicate to further review of those issues by the Veterans
Court.
That characterization of Mr. Chavez’s argument is
inaccurate. His argument is not simply that the Veterans
Court erred in remanding the case to the Board; instead, he
argues that when the Board fails to provide adequate
reasons or bases in support of its decision that a disability
rating was reduced in accordance with law, the Veterans
Court is legally compelled to reverse the Board outright and
may not remand the case to the Board for further
proceedings. That is a legal argument, and the Veterans
Court has given a “clear and final decision” in response to
that argument. That is, the Veterans Court has squarely
rejected Mr. Chavez’s argument that the court lacks the
authority to remand under those circumstances. Mr.
Chavez’s legal argument may be meritless; indeed, we
ultimately conclude that it is. But it is a legal argument
nonetheless, and it is one that Mr. Chavez raised before the
Veterans Court and that the Veterans Court squarely
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CHAVEZ v. MCDONOUGH 6
rejected. The first factor from Williams is therefore satisfied
in this case.
The second and third Williams factors are also satisfied
here. An adverse decision on the legal issue raised by Mr.
Chavez is clearly harmful to him: He is arguing in favor of
a legal rule that, if adopted, would give him precisely the
relief he is seeking in this overall proceeding, i.e., an order
reinstating his 100 percent disability rating. On the other
hand, rejection of his legal argument would require him to
undergo a remand proceeding, the ultimate result of which
could be rejection of his claim on the merits.
Likewise, the third Williams factor is satisfied, because
the legal issue Mr. Chavez has raised—his right to a
favorable decision on the merits without a remand—would
be mooted if a remand is ordered, regardless of whether he
ultimately prevails in obtaining reinstatement of his 100
percent disability rating.
This analysis is consistent with the analysis in several
of the cases in which, in similar settings, this court has held
that it had jurisdiction, despite an argument by the
government that jurisdiction was lacking. In Adams v.
Principi, supra, we held that this court had jurisdiction over
a remand order issued by the Veterans Court where the
appellant’s contention on appeal was that he had a legal
right to a judgment from the Veterans Court without a
remand; i.e., the decision of the Veterans Court was held
appealable “only because the remand deprives Mr. Adams of
his claimed right to a decision in his favor on the record as
it now stands and might result in that issue becoming moot
after further proceedings in the Board of Veterans’ Appeals.”
256 F.3d at 1321. That is essentially the same legal claim
that underlies Mr. Chavez’s appeal in this case: that the
Veterans Court had a legal obligation to decide this case in
his favor, that it was legally impermissible for it to remand
the case to the Board, and that a remand order would
deprive Mr. Chavez of the very right (to a favorable and
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CHAVEZ v. MCDONOUGH 7
dispositive decision from the Veterans Court) that he argues
he is entitled to.
This court in Stevens v. Principi, 289 F.3d 814 (Fed. Cir.
2002), held that this court had jurisdiction to review a
remand order by the Veterans Court on similar grounds.
The court explained that the veteran’s argument was that
the remand was “ordered for a prohibited purpose, that he is
entitled to a decision in his favor without the need for a
remand, and that his right to relief might be lost after
further proceedings on remand.” Id. at 817.
Likewise, in Byron v. Shinseki, the court noted that “we
may not review a remand order when the appellant is
challenging the correctness of the analysis in the remand
order,” but that “we may review a remand order to
determine the Veterans Court’s authority to order a
remand.” 670 F.3d at 1205. See also Deloach, 704 F.3d at
1377 (holding that this court has jurisdiction when the
appeal “implicate[s] a legal right not to be subjected to a
remand”).
The government cites several cases that it characterizes
as supporting its position in this case, but none of them do
so. In Williams itself, the court stated that the Veterans
Court had not issued a “clear and final decision on a legal
issue,” but had “merely remanded for further consideration
of the issues by the Board as a predicate to further review of
those issues” by the Veterans Court. 275 F.3d at 1365. In
this case, however, Mr. Chavez argued to the Veterans Court
that “when the Board fails to use the correct standard in a
rating reduction case, the Board’s decision is void ab initio,
and . . . the Veteran’s previous disability rating must be
reinstated.” JA 244. That is a purely legal contention, which
the Veterans Court rejected when it ruled that a remand
was appropriate even though the court had found that the
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CHAVEZ v. MCDONOUGH 8
Board’s “reasons or bases [for its decision] are inadequate.”
JA 8.1
The government also relies on Ebel v. Shinseki, supra,
which held that the Veterans Court’s decision was non-final
and did not fall within the Williams exception. In that case,
which involved a claim of service connection, the veteran
argued that the Veterans Court should have found that the
evidence was sufficient to establish service connection and
therefore should not have remanded the case to the Board
for further proceedings. This court held that it lacked
jurisdiction over the appeal because the veteran had not
alleged that “the remand was for a prohibitive purpose or
violated statutory authority.” 673 F.3d at 1342.
In this case, by contrast, Mr. Chavez argues that there
is a legal prohibition against remanding the case once the
Veterans Court finds that the Board has failed to apply the
proper standards in a rating reduction case. Because that
legal issue is properly before us, we deny the government’s
request that we dismiss Mr. Chavez’s appeal.
III
While we agree with Mr. Chavez that this court has
jurisdiction over his claim, we disagree with him as to the
1 Before the Veterans Court, Mr. Chavez argued in
the alternative that if the court rejected his argument that
he was entitled to reinstatement of his 100 percent rating
without a remand, the court should remand the case to the
Board because the Board had provided inadequate reasons
or bases for concluding that a reduction in his disability
rating was warranted. In his motion for a decision by a
panel of that court, Mr. Chavez limited his argument to the
contention that reversal is the only appropriate remedy
when there are flaws in a Board decision upholding a rat-
ing reduction, as pointed out by Judges Meredith and Pi-
etsch in their opinion concurring in the denial of the motion
for a panel decision. JA 11.
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CHAVEZ v. MCDONOUGH 9
merits of his claim that the Veterans Court erred by
remanding the case to the Board, rather than reversing the
Board outright and directing that his 100 percent disability
rating be reinstated.
In addressing the merits of Mr. Chavez’s claim, it is
important to note the precise grounds on which the Veterans
Court based its remand decision. Citing prior Veterans
Court decisions, the court first noted that “reversal and
reinstatement are not appropriate when the Board erred
only in failing to provide adequate reasons or bases for its
decision on the propriety of a reduction.” JA 7. The court
then explained that reversal was not warranted because the
Board “did not completely fail to address [the improvement
in Mr. Chavez’s PTSD symptoms].” In particular, the court
noted, the Board explained “how Mr. Chavez’s improvement
in his PTSD symptoms manifested in his ordinary life.” Id.
Nonetheless, the court held that “because it is unclear
from the Board’s decision whether Mr. Chavez attained
material improvement under the ordinary conditions of life
and work by the time of his rating reduction, judicial review
is frustrated and the Court finds that remand is warranted.”
Id.; see also JA 8. The court added that because the Board’s
“confusing explanation prevents effective judicial review of
whether VA complied with its regulations in reducing Mr.
Chavez’s disability rating,” the court “finds the Board’s
reasons or bases are inadequate and that remand is
required.” JA 8.
There is no force to Mr. Chavez’s argument that the
Veterans Court was not authorized to remand the case to the
Board for an explanation of its ruling, which the court
regarded as necessary to permit effective judicial review of
the Board’s decision. Congress has expressly authorized the
Veterans Court to “affirm, modify, or reverse a decision of
the Board or to remand the matter, as appropriate,” 38
U.S.C. § 7252, a grant of authority that largely tracks the
similar grant of authority Congress has provided to the
Supreme Court and other federal courts of appellate
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CHAVEZ v. MCDONOUGH 10
jurisdiction in 28 U.S.C. § 2106. It is well settled that in
federal appellate courts, the power to remand extends to
cases in which “the reviewing court simply cannot evaluate
the challenged agency action on the basis of the record before
it.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985). In such cases, “the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.” Id.
This court has expressly held that the principles of
Florida Power & Light apply to the authority of the Veterans
Court to remand cases to the Board of Veterans’ Appeals if
the record “does not support the agency action, if the agency
has not considered all relevant factors, or if the Veterans
Court simply cannot evaluate the challenged agency action
on the basis of the record before it.” Euzebio v. McDonough,
989 F.3d 1305, 1323 (Fed. Cir. 2021) (cleaned up); Deloach,
704 F.3d at 1381; Adams, 256 F.3d at 1322.2
Mr. Chavez has not pointed to anything that suggests
that principle is inapplicable to the dispute before us. The
Board’s opinion, in the judgment of the Veterans Court, did
not provide the court with a sufficient basis for effective
judicial review, a circumstance that, in the court’s
assessment, could be cured by a directed remand. Having
general authority to issue such a remand for that purpose,
the Veterans Court permissibly exercised that authority and
directed the Board to remedy the defects that the court
identified as impeding judicial review.
2 Those decisions are consistent with the point made
by the Supreme Court in Shinseki v. Sanders, 556 U.S. 396
(2009), that the Veterans Court’s review of decisions by the
Board of Veterans’ Appeals are governed by the same prin-
ciples that apply to judicial review of federal agency action
generally. See Tadlock v. McDonough, 5 F.4th 1327, 1336
(Fed. Cir. 2021).
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CHAVEZ v. MCDONOUGH 11
Mr. Chavez contends that, at least in the case of a
challenge to a rating reduction, the Veterans Court lacks the
authority to remand if it concludes that the record does not
allow it to affirm the Board’s decision. In such cases, Mr.
Chavez argues, the Veterans Court must reverse the Board
and direct that the veteran’s previous rating be restored.
However, he points to no principled ground for
distinguishing such cases from other cases in which the
Veterans Court applies general principles of agency review
to review—and where necessary, remand—decisions by the
Board of Veterans’ Appeals.
Finally, Mr. Chavez raises various complaints about the
Board’s decision, including that it appears the Board relied
on evidence obtained after the rating reduction to find that
Mr. Chavez’s disability improved before the rating
reduction. The Veterans Court acknowledged that
argument but stated that “because it is unclear from the
Board’s decision whether Mr. Chavez attained material
improvement under the ordinary conditions of life and work
by the time of his rating reduction, judicial review is
frustrated and the Court finds that remand is warranted.”
JA 7. Thus, the Veterans Court did not reject Mr. Chavez’s
argument that it was impermissible for the Board to rely on
post-reduction evidence to justify the reduction of his rating.
Instead, the court simply said that it was unable to evaluate
that argument in light of the state of the record. The remedy
the court selected was to remand the case to the Board for
clarification. In light of the authorities cited above, that was
a remedy the court was fully entitled to adopt.
We therefore hold that this court has jurisdiction over
Mr. Chavez’s appeal, and we affirm the decision of the
Veterans Court.
AFFIRMED
COSTS
No costs.
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