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 United States Court of Appeals for the Federal Circuit

                                        05-7152



                                 THOMAS G. JOYCE,

                                                             Claimant-Appellant,

                                           v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                             Respondent-Appellee.




      Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.

      John S. Groat, 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 Brian M. Simkin, Assistant Director. Of counsel on the brief were
David J. Barrans and Amanda R. Blackmon, Attorneys, United States Department of
Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Jonathan R. Steinberg
 United States Court of Appeals for the Federal Circuit

                                       05-7152

                                THOMAS G. JOYCE,

                                                            Claimant-Appellant,

                                          v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,


                                                            Respondent-Appellee.


                          ___________________________

                            DECIDED: March 30, 2006
                          ___________________________

Before LOURIE, RADER, and DYK Circuit Judges.

DYK, Circuit Judge.

      Thomas G. Joyce (“Joyce”) appeals the decision of the Court of Appeals for

Veterans Claims. That decision affirmed in part, reversed in part, vacated in part, and

remanded in part the decision of the Board of Veterans Appeals (the “Board”) finding no

clear and unmistakable error (“CUE”) in a 1955 Veterans’ Administration (“VA”) regional

office (“RO”) decision denying Joyce’s disability compensation application. Joyce v.

Nicholson, No. 03-0059 (Vet. App. Mar. 22, 2005). Because we conclude that the

decision of the Court of Appeals for Veterans Claims is not final for purposes of our

review, we dismiss.
                                     BACKGROUND

       Disability compensation for veterans is typically of two different types -- one for

service connection where the injury or disease first manifested itself during service and

another for in-service aggravation when a preexisting injury or disease is aggravated by

service. A successful service connection claim results in full compensation for the injury

or disease; aggravation claimants receive compensation reduced according to the

degree of disability existing at the date of entrance into service. 38 C.F.R. § 3.322

(2005); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

       As we discussed in Wagner, 370 F.3d at 1093-96, a different regime prevails

under 38 U.S.C. § 1110, which governs disability compensation for veterans who

served during wartime. If the disability was not noted upon entry into service, wartime

service disability compensation claimants benefit from a presumption of soundness

which, if unrebutted, supports a finding that the disability was service-connected. The

government may rebut this presumption of soundness only on a showing, by clear and

unmistakable evidence: (1) that the disability preexisted service; and (2) that the

disability was not aggravated due to service. 38 U.S.C. § 1111 (2000); Wagner, 370

F.3d at 1093-96. To satisfy the second requirement for rebutting the presumption of

soundness, the government must rebut a statutory presumption of aggravation by

showing, by clear and unmistakable evidence, either that (1) there was no increase in

disability during service, or (2) any increase in disability was “due to the natural

progression” of the condition. 38 U.S.C. § 1153 (2000); Wagner, 370 F.3d at 1096.1



       1
               Under the wartime service regime, if the disability was noted at the time of
entry into service, the veteran may seek compensation for in-service aggravation, and is
entitled to the presumption of aggravation on such claims. 38 U.S.C. § 1153; Wagner,


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       Our decision in Wagner made clear that, under the wartime service regime, there

is only one claim for a disability not noted upon entry -- a claim for service connection.

We concluded that under such circumstances the statute has “essentially . . . the effect

of converting an aggravation claim into one for service-connected disability.” Wagner,

370 F.3d at 1096. We have held, however, that where the regulations in existence at

the time of the original decision imposed a different rule, Wagner cannot be the basis for

a CUE claim. Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005).

       Joyce served on active duty in the Army from December 7, 1953, to April 30,

1954, during the Korean conflict. Service in the Korean conflict qualifies as wartime

service for disability compensation purposes. 38 C.F.R. §§ 3.2(e), 3.304(a) (2005). A

medical examination of Joyce upon entry into service noted no disability. Joyce was

separated from service due to disability after a subsequent medical examination

revealed a duodenal ulcer. On November 3, 1955, Joyce applied to the RO for service-

connected disability compensation for a duodenal ulcer pursuant to former Veterans’

Regulation (“VR”) No. 1(a). The RO denied Joyce’s claim on November 30, 1955,

concluding that Joyce’s ulcer “was not service incurred or aggravated.” Id. In April

1998, Joyce filed with the Board a CUE claim regarding the November 1955 RO

decision, asserting that the RO improperly denied him an award of service-connected

disability. The Board rejected Joyce’s claim in July 1998, but the Court of Appeals for

Veterans Claims remanded to the Board for a more detailed statement of the reasons




370 F.3d at 1096. The presumption of aggravation may be rebutted either by evidence
showing that there was no increase in disability during service, or by evidence
supporting “a specific finding that the increase in disability is due to the natural progress
of the disease.” 38 U.S.C. § 1153.


05-7152                                      3
for the Board’s decision. On remand, the Board again rejected the claim on September

25, 2002.

       On appeal from the Board’s September 25, 2002, decision, the Court of Appeals

for Veterans Claims again remanded to the Board.          (Judge Hagel filed a separate

concurrence.) The court declined to address whether our decision in Wagner applied to

Joyce’s CUE claim because the court found that the regulations in effect in 1955

adopted the same rule. Accordingly, the court viewed the case as involving a single

claim -- one for service connection that could be established either by the presumption

of soundness or the presumption of aggravation. The court concluded that clear and

unmistakable evidence before the RO showed that Joyce’s condition preexisted service,

and thus that the government had rebutted the presumption of soundness as to the

preexisting condition prong of the inquiry. The court also found uncontested evidence in

the RO record that Joyce’s disability had permanently increased in severity during

service, and thus held that the RO was incorrect to conclude that Joyce’s condition was

not aggravated during service. The court then turned to the question of whether Joyce’s

condition was aggravated by service or by the disease’s natural progression. The court

concluded that it was CUE for the RO to decide that the presumption of aggravation had

been rebutted because, while the evidence before the RO contained an implicit finding

by medical authorities that the aggravation was due to the natural progression of the

disease, the evidence did not reflect a “specific finding that increase in disability is due

to the natural progress of the disease.” The court held that such an explicit finding is

required to rebut the presumption of aggravation under the regulation. The court thus

vacated the judgment of no service connection and remanded for the Board to




05-7152                                      4
determine whether the RO’s error was outcome determinative, a required element of a

CUE claim. See 38 C.F.R. § 3.105 (2000); Cook v. Principi, 318 F.3d 1334, 1344-45

(Fed. Cir. 2002) (en banc).

       Joyce timely appealed the decision of the Court of Appeals for Veterans Claims

to this court, and we have jurisdiction pursuant to 38 U.S.C. § 7292.

                                         DISCUSSION

       Our review of decisions of the Court of Appeals for Veterans Claims is governed

by 38 U.S.C. § 7292. While that statute does not explicitly impose a final judgment

requirement, we have nonetheless “generally declined to review non-final orders of the

Veterans Court” on prudential grounds. Williams v. Principi, 275 F.3d 1361, 1363 (Fed.

Cir. 2002) (internal quotation marks omitted). Williams established a three part test for

deviation from the strict rule of finality:

       [W]e 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 such a remand, i.e., that the remand proceeding may moot the
       issue.

Id. at 1364 (footnotes omitted).

       We have repeatedly made clear that a decision by the Court of Appeals for

Veterans Claims remanding to the Board is non-final and not reviewable. See, e.g.,

Myore v. Principi, 323 F.3d 1347, 1351-53 (Fed. Cir. 2003); Winn v. Brown, 110 F.3d

56, 57 (Fed. Cir. 1997). The sole exception is where the remand action itself would

independently violate the rights of the veteran, for example, where a remand would be



05-7152                                       5
barred by statute. Stevens v. Principi, 289 F.3d 814, 817 (Fed. Cir. 2002); Adams v.

Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001).

       The parties here urge different views of the finality issue based on their different

views as to the underlying claims. In Joyce’s view, because Joyce’s disability was not

noted upon entry into service, Wagner establishes that there is only a single claim --

one for service connection that is established either through the presumption of

soundness or the presumption of aggravation. Joyce insists that we may review the

decision of the Court of Appeals for Veterans Claims because the court improperly

remanded when it should have reversed the finding of no service connection in view of

the court’s conclusion that the government failed to rebut the presumption of

aggravation. Alternatively, Joyce contends that if a remand was appropriate, the Court

of Appeals for Veterans Claims’ remand instructions should have required a

determination as to whether the government had properly overcome the presumption of

soundness by clear and convincing evidence. Joyce urges that this alleged error, too, is

reviewable at this time.

       The government, on the other hand, argues that under our decision in Jordan,

Wagner is not a basis for a CUE claim, and thus for purposes of a CUE analysis there

are two separate claims here -- one for service connection and one for aggravation.

The government takes the position that the Court of Appeals for Veterans Claims’

disposition of the service connection claim was final and is reviewable by this court, but

the court’s disposition of the aggravation claim was not final and thus is not reviewable.

       In fact, we need not decide which view of the underlying claims is correct,

because under either view, there is a lack of finality.




05-7152                                       6
       If Joyce has only a single claim, review is only available if the Williams test is

satisfied. As to the third prong of that test, Joyce argues that there is a substantial risk

that “the remand proceeding may moot the issue” because the alleged errors in the

Court of Veterans Claims’ decision will be binding on this court under the law of the

case doctrine. We disagree. After completion of the remand proceedings and the entry

of a final judgment by the Court of Appeals for Veterans Claims, the veteran may raise

any objections to the judgment that was entered, whether the errors arose from the

original Court of Appeals for Veterans Claims decision or the second and final decision.

While the first Court of Appeals for Veterans Claims decision will be law of the case for

the Court of Appeals for Veterans Claims, it will not, of course, in any way bind this

court. 18B Charles Allan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 4478.6 (2d ed. 2002) (“[A] court of appeals is free to review the original ruling after a

district court or administrative agency has adhered to the ruling as the law of the

case.”).    Accordingly, if there is only a single claim, review is unavailable under

Williams.

       If this case involves separate claims for service connection and aggravation, as

the government urges, then the decision of the Court of Appeals for Veterans Claims

nevertheless is not final. To be sure, under some circumstances review is available for

a claim for which final judgment has been entered even if other, separate claims have

been remanded. We addressed this issue in Elkins v. Gober, 229 F.3d 1369, 1376

(Fed. Cir. 2000).   There, the Board denied Elkins’ claims of service connection for

headaches and back pain resulting from an automobile accident. The Veterans Court

affirmed as to the headache claim, remanded the claim for back pain to the Board, and




05-7152                                      7
rejected Elkins’ argument that the medical evidence regarding his headaches also

established a claim for service-connected neck pain. Id. at 1372. Elkins appealed the

Veterans Court’s decision as to his headache and neck pain claims to this court. We

held that “[b]ecause . . . each ‘particular claim for benefits’ may be treated as distinct for

jurisdictional purposes, a veteran’s claims may be treated as separable on appeal.” Id.

at 1376 (quoting Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000)) (citation

omitted). We made clear, however, that we will not review final judgments on separable

claims where other claims are still pending if our review would “disrupt the orderly

process of adjudication” -- for example, where the appealed claim is “inextricably

intertwined” with the remanded claim. Id. at 1374-76. Here, even if two separate claims

are involved, Joyce’s assertedly separate claims are inextricably intertwined because

both claim compensation for the same disability.          Review of the Veterans Court’s

decision as to the service connection claim is unavailable under Elkins because it would

“disrupt the orderly process of adjudication.”

       We conclude that the decision of the Court of Appeals for Veterans Claims is not

final and thus not reviewable by this court.

                                        DISMISSED.

                                          COSTS

       No costs.




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