Case: 22-1942 Document: 42 Page: 1 Filed: 04/19/2024
`
`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
`______________________
`
`SEAN 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, CLAUDIA BURKE, PATRICIA M. MCCAR-
`THY; AMANDA BLACKMON, BRIAN D. GRIFFIN, Office of Gen-
`eral Counsel, United States Department of Veterans
`Affairs, Washington, DC.
`______________________
`
`
`

`

`Case: 22-1942 Document: 42 Page: 2 Filed: 04/19/2024
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`2
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`CHAVEZ v. MCDONOUGH
`
`Before LOURIE, 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
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`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
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` 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
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`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
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`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
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`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
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`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
`
` Before the Veterans Court, Mr. Chavez argued in
`1
`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
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`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
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`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
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`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.
`
`
`