       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  DORIS E. POOLE,
                  Claimant-Appellant

                           v.

  ROBERT WILKIE, SECRETARY OF VETERANS
                  AFFAIRS,
             Respondent-Appellee
            ______________________

                      2017-2324
                ______________________

    Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3063, Judge William S. Green-
berg.
                ______________________

               Decided: October 3, 2018
               ______________________

   CHRIS ATTIG, Attig Steel, PLLC, Little Rock, AR, ar-
gued for claimant-appellant.

    IGOR HELMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represent-
ed by KRISTIN MCGRORY, ELIZABETH MARIE HOSFORD,
ROBERT EDWARD KIRSCHMAN, JR., CHAD A. READLER;
BRIAN D. GRIFFIN, BRYAN THOMPSON, Office of General
2                                           POOLE v. WILKIE




Counsel, United States Department of Veterans Affairs,
Washington, DC.
                ______________________

        Before NEWMAN, LINN, and DYK, Circuit Judges.
DYK, Circuit Judge.
    Doris E. Poole, the widow of Grady A. Poole, a veter-
an, appeals from an order of the Court of Appeals for
Veterans Claims (“Veterans Court”) dismissing for lack of
jurisdiction her appeal from the Board of Veteran’s Ap-
peals (“Board”). The Board had remanded Mrs. Poole’s
claim to the Veterans’ Affairs Regional Office (RO) for
further development. Because the Veterans Court lacked
jurisdiction to consider the Board’s remand order, which
did not render a decision on any theory and thus was not
an appealable decision, we affirm.
                        BACKGROUND
    Mr. Poole served on active duty in the U.S. Army from
April 1950 to April 1953, including service in the Korean
War, and continued his service in the reserves from 1963
to 1989. In 1985, Mr. Poole suffered an injury to his left
shoulder while on active service. The effects of this injury
persisted until Mr. Poole died in May 2004 due to lym-
phoma with bone metastasis.
    Following the death of her husband, Mrs. Poole filed a
claim for dependency and indemnity compensation pursu-
ant to 38 U.S.C. § 1310, which provides for such compen-
sation when a veteran dies “from a service-connected”
disability. 1 Her claim involves two theories of how Mr.



    1   Mrs. Poole also initially sought benefits under 38
U.S.C. § 1318, which provides for compensation in certain
circumstances when a veteran’s death is not service-
connected. That claim was denied, and the Veterans
POOLE v. WILKIE                                           3



Poole’s service caused his death from lymphoma. The
first theory is that Mr. Poole’s service directly caused his
lymphoma (the “direct causation theory”). The second
theory is that his service-connected shoulder injury im-
paired his ability to receive effective treatment for his
lymphoma, thus hastening his death (the “shoulder injury
theory”). See 38 C.F.R. § 3.312(c)(4) (providing that a
veteran’s death may be service-connected if “a service
connected condition . . . ha[d] a material influence in
accelerating death”).
    Mrs. Poole’s claim took a tortuous procedural path
that included multiple appeals to the Board and remands
to the RO. As relevant here, the RO denied Mrs. Poole’s
claim in 2012. The Board affirmed that denial in May
2014, finding that Mr. Poole’s service-connected left
shoulder injury did not contribute to his death and that
his lymphoma was not linked to his active service. Mrs.
Poole appealed to the Veterans Court.
    In April 2016, the Veterans Court granted the parties’
joint motion to remand to the Board. In that motion, the
parties agreed that a remand was necessary because the
RO’s 2012 decision failed to adequately support the con-
clusion “that the Veteran’s lymphoma is not related to his
service.” J.A. 113–14. The parties agreed that on remand
to the Board, Mrs. Poole was “free to submit additional
evidence and argument” regarding the service connection
for Mr. Poole’s cause of death and that the Board would
then “reexamine the evidence of record.” J.A. 115.
     On remand to the Board, Mrs. Poole submitted a med-
ical opinion by Dr. Judy Schmidt, who concluded that Mr.
Poole’s service-connected shoulder injury “contributed to a
50% decrease in cure rate from a lymphoma that he



Court affirmed the denial under § 1318 in March 2011.
That claim is not involved in this appeal.
4                                           POOLE v. WILKIE




should have been cured from with proper treatment.” J.A.
97.
    The Board then remanded to the RO. The remand or-
der acknowledged that Mrs. Poole had submitted a letter
from Dr. Schmidt and directed the RO to provide an
oncologist who “must address the opinion offered by Dr.
Schmidt.” J.A. 81. The order instructed the RO to then
“review the claims file to ensure that all of the foregoing
requested development is completed,” then “readjudicate
the claim,” and that “[t]he case should then be returned to
the Board, if in order, for further appellate review.” J.A.
81. Finally, the order stated that it was “in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits,” and that “only a decision of the
Board of Veterans’ Appeals is appealable” to the Veterans
Court. J.A. 82.
    On September 2, 2016, Mrs. Poole appealed the
Board’s remand order to the Veterans Court, contending
that the Board had rejected her shoulder injury theory.
The Veterans Court held that it lacked jurisdiction be-
cause “in order for a claimant to obtain review of a Board
decision by [the Veterans Court], that decision must be
final,” and here the “Board remand is not a final decision.”
J.A. 2.
    Mrs. Poole timely appealed to this court. 2 We have
jurisdiction under 38 U.S.C. § 7292. We review legal
determinations of the Veterans Court de novo. Goodman
v. Shulkin, 870 F.3d 1383, 1385 (Fed. Cir. 2017).



    2   Mrs. Poole also unsuccessfully petitioned the Vet-
erans Court for a writ of prohibition to prevent the RO
from complying with the Board’s remand order. Our
decision in a companion case decided today, Poole v.
Wilkie, No. 17-1840, slip op. (Fed. Cir. Oct. 3, 2018),
affirms the Veterans Court’s denial of that petition.
POOLE v. WILKIE                                           5



                       DISCUSSION
    Mrs. Poole contends that Board decisions need not be
“final” to be appealable. We have previously declined to
decide that question, noting that the statute defining the
Veterans Court’s jurisdiction requires a Board “decision”
for appeal. Kirkpatrick v. Nicholson, 417 F.3d 1361,
1364–65 (Fed. Cir. 2005); 38 U.S.C. § 7252. Here too we
need not decide the issue of finality, because we resolve
this case on the basis of the “decision” requirement.
    The central question here is whether any portion of
the Board’s remand order denied benefits such that it
constituted a “decision” available for Veterans Court
review. Section 7252 of Title 38 provides that the Veter-
ans Court may review only “decisions” of the Board. “A
decision of the Board is an order that either grants or
denies benefits.” See Tyrues v. Shinseki, 732 F.3d 1351,
1355–56 (Fed. Cir. 2013). In Kirkpatrick we held that a
Board remand order is generally not a “decision,” since it
does not grant or deny benefits, and that the Veterans
Court therefore generally lacks jurisdiction over an ap-
peal from a remand order. See 417 F.3d at 1364. Howev-
er, a Board decision that renders a “clear definitive denial
of benefits” “on one statutory ground while remanding for
consideration of entitlement to benefits on another
ground” is immediately appealable as to the portion
denying benefits. Tyrues, 732 F.3d at 1355–57. That is so
because in “the denial portion” of such a decision, the
Board has “definitively denied benefits,” making that
portion a “final decision” “despite the simultaneous re-
mand of issues concerning receipt of benefits on other
statutory grounds.” Id. at 1355–56.
    Mrs. Poole contends that the Board’s remand order in
this case “clearly and definitively denied” her theory that
Mr. Poole’s service-connected shoulder injury hastened
his death from lymphoma, because it remanded only the
6                                           POOLE v. WILKIE




alternative theory that his lymphoma originated from his
active service. Appellant’s Br. at 14–15.
    We disagree. As an initial matter, we do not view the
Veterans Court’s remand to the Board in April 2016 as
limiting the Board to the direct causation theory. The
remand was based on the parties’ agreement that the RO
had failed to support the conclusion “that the Veteran’s
lymphoma is not related to his service,” and the parties’
motion provided that Mrs. Poole could submit “additional
evidence and argument on the questions at issue” to the
Board. J.A. 113–15. It would be surprising if the Board’s
subsequent remand order then narrowed the available
theories when the Veterans Court’s remand required
consideration of all theories.
    In any event, pursuant to the Veterans Court remand
order, the Board clearly remanded both of Mrs. Poole’s
theories for further consideration. First, the order di-
rected the RO to provide an oncologist to determine
whether Mr. Poole’s lymphoma was “etiologically related
to his service.” J.A. 80. Second, the order stated that the
oncologist “must address the opinion offered by Dr.
Schmidt,” and if the oncologist disagrees with Dr.
Schmidt, “provide a fully reasoned explanation for that
disagreement.” J.A. 81. Dr. Schmidt almost exclusively
opined that Mr. Poole’s shoulder injury “was the proxi-
mate and actual cause of his low performance status,”
which in turn “contributed to a 50% decrease in cure rate”
from his lymphoma. J.A. 97. Thus, to comply with the
Board’s remand order, the RO had to address and adjudi-
cate the shoulder injury theory. The government agrees
that the Board remanded both theories and that both are
preserved for subsequent proceedings. 3 And Mrs. Poole


    3   The government’s position seems to be that these
two theories constitute a single claim for relief. We need
not resolve whether this case involves two separate claims
POOLE v. WILKIE                                             7



all but concedes that the Board did not render a “clear
definitive denial” of her theory, as she argues that the
Board entirely “failed to address Mrs. Poole’s fully articu-
lated, and fully proved, legal theory.” Appellant’s Br.
at 17.
    Another factor indicating that the Board’s remand or-
der did not constitute a “clear definitive denial of benefits”
as required by Tyrues, 732 F.3d at 1357, is that the order
expressly stated it was “in the nature of a preliminary
order and does not constitute a decision of the Board on
the merits.” J.A. 82. By contrast, in Tyrues the Board’s
decision contained “unequivocal appealability directives”
to the veteran. 732 F.3d at 1356. Specifically, the deci-
sion there stated it was “the final decision for all issues
addressed in the ‘Order’ section of the decision” and
contrasted these decided issues with issues in the “‘Re-
mand’ section [that] follows the ‘Order.’” The decision
also advised the veteran, “[y]ou have 120 days from the
date this decision was mailed to you . . . to file a Notice of
Appeal” with the Veterans Court, suggesting that some
appealable issue had been decided. Id. at 1354.
    Extending Tyrues to cases such as this one, where the
Board’s remand order does not explicitly deny relief on
any theory and expressly states it is not a decision on the
merits, would place an untenable burden on veterans. It
would require veterans to parse Board remand orders for
implicit denials of specific factual theories, ignore express
instructions that the order is not final, and appeal the
implicitly-denied theories within 120 days or forfeit them.
As we reasoned in Tyrues, such “[u]ncertainty as to finali-
ty can both encourage premature attempts to appeal the


or two separate theories, since we hold that, however
framed, the Board’s remand order here did not deny
benefits on any basis.
8                                             POOLE v. WILKIE




unappealable and cause the failure to appeal the appeala-
ble.” Id. at 1356–57. We decline the invitation to further
complicate a regime that is already challenging to navi-
gate.
    We note that even if the Board had issued a decision
rejecting the shoulder theory, that decision would likely
not have been immediately appealable, as “the denial
portion” would have been “inextricably intertwined” with
the remand on the direct causation theory. See id. at
1356. Both theories related to a single statutory ground
for benefits—38 U.S.C. § 1310—and both related specifi-
cally to the service connection of Mr. Poole’s death from
lymphoma.
                        CONCLUSION
    Since the Board’s remand order did not decide either
causal theory presented by Mrs. Poole, there was no
“decision” to appeal, and thus no obligation to appeal to
the Veterans Court to preserve those theories. Both
theories will be considered in any subsequent proceedings
before the Board or the Veterans Court. Accordingly, the
Veterans Court did not err in dismissing the appeal for
lack of jurisdiction.
    We assume that the RO will promptly process and re-
solve Mrs. Poole’s claim, particularly in light of its 14-year
history.
                         AFFIMED
                           COSTS
    No costs.
