 United States Court of Appeals for the Federal Circuit

                                        05-7082



                                  BOBBY R. JONES,

                                                     Claimant-Appellant,

                                          v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                     Respondent-Appellee.




      James R. Barney, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of
Washington, DC, argued for claimant-appellant. On the brief was Mark R. Lippman,
The Veterans Law Group, of La Jolla, California.

       Gregory T. Jaeger, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Todd M. Hughes, Assistant Director. Of counsel were
Richard J. Hipolit, Deputy Assistant General Counsel, Y. Ken Lee, Attorney, and
Michael J. Timinski, Attorney, United States Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge Donald L. Ivers (Retired)
 United States Court of Appeals for the Federal Circuit

                                        05-7082


                                   BOBBY R. JONES,

                                                       Claimant-Appellant,

                                            v.

                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                       Respondent-Appellee.

                           __________________________

                           DECIDED: December 14, 2005
                           __________________________

Before LOURIE, LINN, and PROST, Circuit Judges.

PROST, Circuit Judge.

      Bobby R. Jones (“Jones”) appeals from a non-final order of the United States

Court of Appeals for Veterans Claims (“CAVC” or “Veterans Court”) denying Jones’s

motion for a limited remand to allow the Secretary of Veterans Affairs (“Secretary” or

“government”) to assist Jones in his tolling claim and ordering Jones to submit further

evidence to support his claim of entitlement to equitable tolling on the grounds of mental

incapacity. Jones v. Principi, No. 03-1996 (Vet. App. Nov. 19, 2004).1 On appeal,

Jones argues that the Veterans Court improperly interpreted 38 U.S.C. § 5103A by

disregarding the duty-to-assist required by the government in the development of

Jones’s tolling claim based upon mental incapacity. Because the Veterans Court order


      1
             R. James Nicholson became Secretary of Veterans Affairs on February 1,
2005, replacing Anthony J. Principi.
is non-final and nothing would prevent Jones from raising his duty-to-assist argument

after the Veterans Court issues its final judgment, we dismiss this appeal.

                                   I. BACKGROUND

      Jones had active duty for training with the Louisiana National Guard for five

weeks, from May 19, 1976 to June 25, 1976.           On August 8, 2002, the Board of

Veterans’ Appeals (“BVA” or “Board”) denied Jones’s claim for service connection for a

nervous condition to include schizophrenia and depression.         Over a year later, on

August 27, 2003, the Board received Jones’s motion for reconsideration, and on

October 17, 2003 the Board denied the motion.

      On November 10, 2003, after the 120-day jurisdictional time period prescribed by

38 U.S.C. § 7266(a) had passed, Jones filed a notice of appeal (“NOA”) at the Veterans

Court. Jones, slip op. at 1. The government responded by filing a motion to dismiss the

appeal for lack of jurisdiction as untimely. In his response, Jones argued that his mental

incapacity prevented him from timely filing his NOA. He therefore asked the Veterans

Court to allow equitable tolling of the 120-day judicial-appeal period on the basis of

mental incapacity. Id.

      While this matter was pending before the Veterans Court, this court reversed the

Veterans Court’s decision in Barrett v. Principi, U.S. Vet. App. No. 02-2382 (order June

5, 2003), which had dismissed the veteran’s appeal for lack of jurisdiction on the

grounds that mental incapacity had not been adopted as a basis for equitable tolling.

Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004). This court stated in that opinion that

“mental illness can justify equitable tolling of section 7266(a) under some

circumstances.” Id. at 1321. Thereafter, on May 14, 2004, the Veterans Court ordered




05-7082                                     2
Jones to submit evidence on his asserted claim of equitable tolling on the grounds of

mental illness. Jones, slip op. at 1 (noting that the May 14, 2004 order “directed the

appellant to submit to the Court evidence, consistent with the ‘generalized standards’

outlined in Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004), that during the 120-day

judicial-appeal period he had a mental illness of sufficient severity to warrant equitable

tolling based on mental incapacity”).     On May 19, 2004, Jones filed a motion for

reconsideration, or in the alternative, for a panel review, of the May 14, 2004 order.

Jones, slip op. at 1. Jones claimed entitlement to Veterans Affairs (“VA”) assistance in

establishing his theory of equitable tolling. Id., slip op. at 2. “The appellant, in effect

moves that the Court issue a ‘limited remand’ and order the Secretary to assist the

appellant in developing evidence relevant to the equitable-tolling issue, including a

medical examination, provided pursuant to 38 U.S.C. § 5103A as enacted in the

Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 3, 114 Stat.

2096, 2096-97.” Id.

      On November 19, 2004, the Veterans Court, in a published three-judge panel

order, denied the motion for reconsideration. Id., slip op. at 1. The court found that

Jones improperly relied on Juarez v. Principi, 16 Vet. App. 518 (2002), to show that “his

claim remained pending at VA after the Board issued its decision and that he is thus

entitled to VA’s duty to assist in proving his mental incapacity during the 120-day

judicial-appeal period.”   Jones, slip op. at 2.   The court stated that “Juarez is not

relevant to deciding the issue presented here . . . [and] the reasoning in Juarez was

rejected by the Federal Circuit in Hayslip v. Principi, 364 F.3d 1321, 1326 (2004).”

Jones, slip op. at 2. The Veterans Court then concluded that “[t]he appellant’s central




05-7082                                     3
position, that he is entitled to VA’s assistance in developing his equitable-tolling motion

in this Court, is erroneous.” Id., slip op. at 3. The Veterans Court stated that § 5103A

was inapplicable because it establishes the Secretary’s duty-to-assist “in connection

with a claimant’s attempt to establish entitlement to his or her claim for an award of VA

benefits and not in connection with a claimant’s attempt to establish mental incapacity

for purposes of tolling the judicial-appeal period and obtaining this Court’s jurisdiction

over an appeal of a BVA decision.” Id. In its November 19, 2004 order, the Veterans

Court again ordered that Jones “submit any evidence of entitlement to equitable tolling

on the grounds of mental incapacity.” Id., slip op. at 4. Jones did not submit evidence

to the Veterans Court but instead filed a notice of appeal to this court on November 23,

2004.

        This court has jurisdiction under 38 U.S.C. § 7292 to review appeals from the

Veterans Court.

                                     II. DISCUSSION

                                  A. Standard of Review

        This court reviews decisions by the Veterans Court deferentially.         Under 38

U.S.C. § 7292(d)(1), we must affirm a Veterans Court decision unless it is “(A) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary

to constitutional right, power, privilege, or immunity; (C) in excess of statutory

jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without

observance of procedure required by law.” 38 U.S.C. § 7292(d)(1) (2000). Except for

constitutional issues, we may not review any “challenge to a factual determination” or




05-7082                                      4
any “challenge to a law or regulation as applied to the facts of a particular case.” 38

U.S.C. § 7292(d)(2) (2000).

                                       B. Finality

      The threshold issue in this case is whether this court has jurisdiction over Jones’s

appeal. Jones argues that we do, relying on the basic principle that this court has

jurisdiction to review Veterans Court decisions concerning any challenge to an

interpretation of a statute, regulation, or rule under 28 U.S.C. § 7292(a). Therefore,

because Jones challenges the Veterans Court’s interpretation of 38 U.S.C. § 5103A, the

statutory duty-to-assist, he argues that this court has jurisdiction over this appeal.2 On

the merits, Jones maintains that the Veterans Court misconstrued § 5103A to require

VA assistance only with respect to the merits of a disability claim, and thus, found that

the Secretary’s duty-to-assist did not apply to the development of his tolling claim based

upon his alleged mental incapacity.

      Jones acknowledges that the Veterans Court’s interim orders are treated like

remand orders and are generally not reviewable. See Adams v. Principi, 256 F.3d

1318, 1320 (Fed. Cir. 2001) (“In applying the statute that grants us jurisdiction over

appeals from the Veterans Court, we have generally declined to review non-final orders



      2
              Section 5103A reads:
      (1) The Secretary shall make reasonable efforts to assist a claimant in
      obtaining evidence necessary to substantiate the claimant’s claim for a
      benefit under a law administered by the Secretary.
      (2) The Secretary is not required to provide assistance-to a claimant under
      this section if no reasonable possibility exists that such assistance would
      aid in substantiating the claim.
      (3) The Secretary may defer providing assistance under this section
      pending the submission by the claimant of essential information missing
      from the claimant’s application.



05-7082                                     5
of the Veterans Court.”); see also Catlin v. United States, 324 U.S. 229, 233 (1945)

(finding that an “order is final only when it ends the litigation on the merits and leaves

nothing more for the court to do but execute judgment”). However, Jones maintains that

this court needs to review the Veterans Court interim decision for three reasons:

       (1) The order will govern future Veterans Court decisions, because it “made a

clear and final decision on a legal issue.” He argues that the decision “held that VA

does not have a duty-to-assist in the development of the record on the issue of

equitable tolling.”

       (2)    “The interim order will adversely affect Jones, as he will bear sole

responsibility (financial and otherwise) for the development of the record. Under the

order, he will not be entitled to any VA assistance.”

       (3) A substantial risk exists that the legal issue decided by the Veterans Court

interim order may “evade future review.” He points out that if he prevails on his claim of

equitable tolling, “the question of VA assistance becomes moot.” Therefore, Jones

argues that if he “succeeds on the jurisdictional issue, but loses his appeal on the

merits, the issue of VA assistance on the equitable tolling claim escapes review.”

Moreover, if Jones loses under the Veterans Court’s final decision, he argues that

“[w]ith the record developed, the Veterans Court would then be making unreviewable

factual findings as to the credibility and persuasiveness of the medical evidence on the

mental incapacity question.”

       The government responds that this court lacks jurisdiction and must accordingly

dismiss. The government points out that controlling law holds that non-final orders are

not reviewable and that the only exception is the collateral rule exception, which




05-7082                                      6
requires the fulfillment of certain conditions that are not met in this case. Namely, the

conditions include that the issue addressed by the non-final order would be “effectively

unreviewable” from a final judgment in the case. See Caesar v. West, 195 F.3d 1373,

1374-75 (Fed. Cir. 1999). The government argues that because Jones can raise this

argument after the Veterans Court issues its final judgment, the interim order is not

“effectively unreviewable,” and thus it does not come under the collateral order

exception.

       This court does not typically review remand or interim orders by the Veterans

Court “because they are not final judgments.” Winn v. Brown, 110 F.3d 56, 57 (Fed.

Cir. 1997); see also Williams v. Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002); Adams,

256 F.3d at 1320. This rule requires that “a party must ordinarily raise all claims of error

in a single appeal following final judgment on the merits.” Flanagan v. United States,

465 U.S. 259, 263 (1984); see also Cabot Corp. v. United States, 788 F.2d 1539, 1542

(Fed. Cir. 1986). In doing so, the requirement of finality ensures this court does not

issue merely advisory opinions. Cabot, 788 F.2d at 1543 (noting that this requirement

serves to avoid “unnecessary piecemeal appellate review without precluding later

appellate review of the legal issue or any other determination made on a complete

administrative record”); see also Williams, 275 F.3d at 1364. However, this court’s

precedent establishes that in order to depart from this requirement three conditions

must be 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




05-7082                                      7
      substantial risk that the decision would not survive a remand, i.e., that the
      remand proceeding may moot the issue.

Williams, 275 F.3d at 1364 (footnotes omitted); see also Myore v. Principi, 323 F.3d

1347, 1351 (Fed. Cir. 2003).3

      Agreeing that the Williams standard applies in this instance, both parties

acknowledge that the first two requirements of Williams are met and therefore the last

criterion is the only one in dispute.4 While Jones argues that the issue in this case of

whether § 5103A extends the “duty-to-assist” required by the Secretary to the

development of his tolling claim will evade review, the government responds that Jones

has not shown that the Veterans Court ruling would be mooted by the interim order.

      We find that this case does not satisfy the narrow exception to the rule of finality.

This court has addressed this issue in at least two similar cases. See Myore, 323 F.3d

1347; Winn, 110 F.3d 56. In Winn, the Board denied disability benefits to the veteran

based on lack of service connection. 110 F.3d at 57. On appeal to the Veterans Court,

Winn argued that his condition was service-connected and also challenged the validity

of a VA regulation, 38 C.F.R. § 3.303(c), which disallowed service-connection for certain

mental disorders. Id. The Veterans Court held that the challenged regulation was valid

but vacated and remanded the Board decision for further fact-finding on the merits of his

case. Id.



      3
                The Supreme Court has emphasized that the exception to the rule of
finality is narrow: “The importance of the final judgment rule has led the Court to permit
departures from the rule ‘only when observance of it would practically defeat the right to
any review at all.’” Flanagan, 465 U.S. at 265 (quoting Cobbledick v. United States, 309
U.S. 323, 324-25 (1940)).
      4
              While the Williams exception speaks in terms of remand orders, it extends
to any type of non-final Veterans Court order, including interim orders.


05-7082                                     8
       On appeal of the remand to this court, Winn argued that the issue would evade

review. This court rejected Winn’s argument that he had a right to appeal from the non-

final order and dismissed the appeal, finding instead that the order would not be

unreviewable at a later stage of litigation. Analogous to the facts in this case, this court

noted that “Mr. Winn may win or lose on the facts of his case without regard to the

regulation he now challenges.” Id. This court found that the issue would be reviewable

if Winn lost in a final judgment, stating

       [i]f he loses, and the regulation is applied against him, and the loss is
       affirmed by the Court of Veterans Appeals, then Mr. Winn can certainly
       appeal to this court on what will then be a final judgment. At that time, if
       the regulation had been relied upon by the Court of Veterans Appeals in
       reaching its decision, then Mr. Winn may have proper standing to
       challenge its validity before this court.

Id.

       Relying in part on Winn, this court in Myore also found that the issue in that

appeal would be reviewable at a later stage of litigation. Myore, 323 F.3d at 1352

(“Myore may win or lose on the facts of her case without regard to the Veterans Court's

interpretation of section 1310(a), which she now challenges.”).5 This court rejected

Myore’s argument that the issue will be important on remand, finding instead that “[t]he

mere fact that the Veterans Court as part of a remand decision may have made an error

of law that will govern the remand proceeding – even one that, if reversed, would lead to

a decision in favor of the claimant – does not render that decision final.” Id. Instead,

this court determined that the issue would be reviewable if Myore lost on remand,



       5
             Myore distinguishes the earlier holdings of Stevens v. Principi, 289 F.3d
814 (Fed Cir. 2002), Adams, 256 F.3d 1318, and Allen v. Principi, 237 F.3d 1368 (Fed.
Cir. 2001). Myore, 323 F.3d at 1352-53.



05-7082                                      9
stating that “[i]f Myore loses before the Board, and section 1310(a) is applied against

her, and the Board’s decision is affirmed by the Veterans Court, then Myore may seek

review of that court’s interpretation of section 1310(a) on what will then be a final

judgment.” This court thus determined that the issue would not evade review and that it

was not appealable. Id.

       Following the holdings of Winn and Myore, we find that the Williams test does not

depend on whether the Veterans Court’s interpretation of § 5103A will be applied in the

Veterans Courts final decision, but whether there is a substantial risk that this

interpretation will not survive the non-final order.       The correctness of the Veterans

Court’s construction of § 5103A will not be rendered unreviewable by our decision to

dismiss the case; an appeal may be taken from the final decision. Here, Jones may win

or lose the case before the Veterans Court without regard to its interpretation of

§ 5103A. If Jones loses on his tolling claim, he may then seek review of the Veterans

Court’s interpretation on what then will be a final judgment.           We conclude that the

Veterans Court order is not a final appealable order, and that there is not a substantial

risk that the interim decision will not survive a later stage of litigation.

                                        CONCLUSION

       Accordingly, we hold that we lack jurisdiction and the appeal is dismissed.

                                            COSTS

       No costs.

                                          DISMISSED




05-7082                                        10
