                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2007-7021

                                MICHAEL W. CANADY,

                                                Claimant-Appellant,

                                           v.

                               R. JAMES NICHOLSON,
                             Secretary of Veterans Affairs,

                                                Respondent-Appellee.

                                     ON MOTION

Before BRYSON, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

                                       ORDER

      The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir.

R. 27(f) and to dismiss Michael W. Canady’s appeal. Canady opposes.

      The Board of Veterans’ Appeals issued two decisions. The first decision denied

Canady’s request for an effective date earlier than April 20, 1993 for the award of

service connection for post-traumatic stress disorder (PTSD) and for a total disability

rating based on individual unemployability (TDIU). In the second decision, the Board

dismissed without prejudice to refiling Canady’s request for revision on the basis of

clear and unmistakable error (CUE) in the Board’s April 1991 decision denying service

connection for PTSD. Canady appealed the Board’s decisions to the United States

Court of Appeals for Veterans Claims.      The Court of Appeals for Veterans Claims

affirmed the Board’s first decision concerning the earlier effective date and TDIU claim.
With respect to Canady’s CUE claim, the Court of Appeals for Veterans Claims

determined that the Board had failed to read Canady’s request sympathetically and thus

set aside the Board’s dismissal order and remanded the case for further proceedings.

Canady v. Nicholson, 20 Vet. App. 393 (2006).

        The Secretary argues that this court lacks jurisdiction because the Court of

Appeals for Veterans Claims decision was not final and does not meet the standard for

appealability of nonfinal decisions set forth in Williams v. Principi, 275 F.3d 1361, 1363

(Fed. Cir. 2002). Canady responds that the issues raised in the two Board decisions

are separate and distinct.

        This court generally does not review nonfinal decisions of the Court of Appeals

for Veterans Claims. Departure from this rule is justified only if three conditions are

fulfilled:

        (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.

Id. at 1364 (footnotes omitted).

        Both Board decisions concern PTSD and, if Canady ultimately prevailed on

either, the result could be an earlier effective date. Thus, we determine that the issues

raised in the two Board decisions are sufficiently intertwined that they should be

considered together. See Smith v. Gober, 236 F.3d 1370 (2001). Because the Court of

Appeals for Veterans Claims remanded to the Board for further proceedings concerning

Canady’s CUE claim, we determine that Canady’s appeal is not sufficiently final for

purposes of our review. Thus, we dismiss the appeal.


2007-7021                                    2
      Accordingly,

      IT IS ORDERED THAT:

      (1)    The Secretary's motion to waive the requirements of Fed. Cir. R. 27(f) is

granted.

      (2)    The Secretary's motion to dismiss is granted.

      (3)    Each side shall bear its own costs.

                                               FOR THE COURT




      April 4, 2007                             /s/ Jan Horbaly
          Date                                 Jan Horbaly
                                               Clerk

cc:   Michael W. Canady
      J. Reid Prouty, Esq.

s17

ISSUED AS A MANDATE: April 4, 2007




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