Deloach v. Shinseki , 704 F.3d 1370 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
RONALD G. DELOACH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2011-7147
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-2532, Judge Frank Q.
Nebeker.
----------------------
WILLIAM H. GREENE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2011-7166
______________________
2 DELOACH v. SHINSEKI
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-3013, Judge Mary J.
Schoelen.
______________________
Decided: January 30, 2013
______________________
IGOR V. TIMOFEYEV, Paul Hastings LLP, of Washing-
ton, DC, argued for claimant-appellants in both appeals.
With him on the briefs was STEPHEN B. KINNAIRD. Of
counsel on the brief were BARTON F. STICHMAN; and LOUIS
J. GEORGE, National Veterans Legal Services Program, of
Washington, DC.
MARTIN F. HOCKEY, JR., Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for the
respondent-appellee in both appeals. With him on the
brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MEREDYTH COHEN
HAVASY, Trial Attorney. Of counsel on the brief were
DAVID J. BARRANS, Deputy Assistant General Counsel,
and JONATHAN TAYLOR, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC in appeal no.
2011-7147.
J. WILLIAM KOEGEL, JR., Steptoe & Johnson, LLP, of
Washington, DC, for amici curiae in both appeals, Mili-
tary Order of the Purple Heart, et al.
______________________
DELOACH v. SHINSEKI 3
Before NEWMAN, PROST, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
In these consolidated appeals, the veterans claim that
their current disabilities are connected to injuries sus-
tained during their military service. In both cases, the
veterans’ medical records contained at least one physi-
cian’s report opining that the claimed disabilities were
service-connected and at least one ambiguous or inconclu-
sive report declining to confirm such a nexus. The De-
partment of Veterans Affairs (“VA”) relied upon these
latter medical opinions in denying the veterans entitle-
ment to service-connected disability benefits, and the
Board of Veterans’ Appeals (“Board”) affirmed. Finding
that the medical examination did not comply with the
Board’s instructions and that the Board failed to explain
its reasons and bases for denying service connection, the
U.S. Court of Appeals for Veterans Claims remanded.
Deloach v. Shinseki, No. 09-4505, 2011 U.S. App. Vet.
Claims LEXIS 512, at *1 (Vet. App. April 29, 2011);
Greene v. Shinseki, No. 09-3013, 2011 U.S. App. Vet.
Claims LEXIS 873, at *1 (Vet. App. April 26, 2011).
Specifically, the Court of Appeals for Veterans Claims
held that remand, rather than reversal, was the appro-
priate remedy where the Board’s decision lacks an ade-
quate statement for its bases, or where the evidence of the
record is inadequate.
For the reasons outlined below, we agree the remand
was appropriate and affirm.
I. BACKGROUND
A. RONALD G. DELOACH
Ronald G. Deloach served as a Neuropsychiatric Spe-
cialist in the Army from 1969 to 1971. He was tasked
with restraining, treating, and counseling fellow soldiers
4 DELOACH v. SHINSEKI
returning from the combat zone. In 1974, Mr. Deloach
was hospitalized and diagnosed with catatonic schizo-
phrenia. In connection with several additional hospitali-
zations between 1974 and 1978, he was diagnosed with
schizophrenic reaction of chronic, paranoid type as well as
anxiety and depression.
Mr. Deloach filed a disability claim for service connec-
tion with respect to schizophrenia, depression, and PTSD
in December 2001. In June 2002, the Veterans Affairs
Regional Office (“VARO”) found nothing linking a mental
condition to military service and, therefore, denied Mr.
Deloach entitlement to service connection.
In November 2002, Mr. Deloach timely filed a Notice
of Disagreement with the VARO’s denial and requested
that the VA review his claim. The VA issued a Statement
of the Case in December 2002, which reaffirmed the
denial. Mr. Deloach appealed to the Board.
In its review, the Board considered medical records
from Mr. Deloach’s private treating physician, Dr. Linda
Jenness-McClellan. In a January 2004 letter, Dr. Jen-
ness-McClellan concluded that Mr. Deloach had signifi-
cant depression and symptoms characteristic of PTSD and
that “[Mr. Deloach’s] presentation and report strongly
indicates that his initial schizophrenic break resulted
from stress encountered as a psychiatric technician caring
for maimed psychiatric veteran returnees from Vietnam.”
Deloach Joint App’x at 946.
In September 2004, the Board remanded the case to
the VARO with instructions that Mr. Deloach undergo
further psychiatric evaluation by a VA physician for a
diagnosis of all his psychiatric disabilities. Additionally,
the Board requested that the examination report include
an opinion on the etiology of each disability diagnosis.
DELOACH v. SHINSEKI 5
In April 2005, the VA again issued a Statement of the
Case denying Mr. Deloach entitlement to service connec-
tion. The VA considered new evidence provided by the VA
examiner Dr. Lanette Atkins. The VA noted Dr. Atkins’
diagnosis of chronic schizophrenia and that her findings
of evidence of psychosis as early as 1974 were consistent
with Dr. Jenness-McClellan’s opinion. Finding that
evidence demonstrated development of a mental disorder
more than one year after Mr. Deloach’s discharge from
active duty in 1971, Dr. Atkins could not confirm a service
connection without speculating.
Mr. Deloach again appealed the VA’s decision to the
Board. In April 2006, the Board declined to make a
service connection decision based on the evidence of
record and remanded to the VARO for further develop-
ment. The Board explained that the VA examiner failed
to comply with remand instructions to provide an opinion
on the etiology of Mr. Deloach’s disability diagnosis.
Furthermore, the Board found no discussion in the exam-
iner’s report as to whether Mr. Deloach satisfied the
criteria for a PTSD diagnosis.
In May 2007, in accordance with the Board’s remand
instructions, the VA provided another evaluation of Mr.
Deloach’s mental condition. Another VA examiner, Dr.
Monica Wright, offered a primary diagnosis of psychosis,
but found that Mr. Deloach did not meet the criteria for
symptoms of PTSD. In September 2007, the VA issued a
Deferred Rating Decision notifying Dr. Wright that her
examination failed to discuss the etiology of Mr. Deloach’s
diagnosis and did not comply with the Board’s instruc-
tions. Dr. Wright submitted a follow-up report addressing
the question of etiology in November 2007. Her report
indicated that the history of Mr. Deloach’s illness during
his military service is unclear due to a scarcity of availa-
ble service medical records. Dr. Wright concluded that:
6 DELOACH v. SHINSEKI
There is not presently a way to address the etiolo-
gy of [Mr. Deloach’s] disorder. According to the
sixth edition of Kaplan and Sadock’s Synopsis of
Psychiatry post-1991, there is a direct quote that
says, “The cause or etiology of schizophrenia is not
known.” Therefore, I cannot address it, and to do
so would result in mere speculation on my part.
Deloach Joint App’x at 1454. As a result, the VA issued a
Statement of the Case in December 2007 which denied
entitlement to service connection. The VA pointed to Dr.
Wright’s opinion that etiology was indeterminable at the
time of her examination and concluded that the evidence
of record does not provide sufficient connection between
Mr. Deloach’s schizophrenia and his military service. Mr.
Deloach appealed the VA’s decision to the Board for a
third time.
In May 2008, the Board affirmed the VA’s decision,
which Mr. Deloach then appealed to the Court of Appeals
for Veterans Claims. Mr. Deloach argued that the Board
erred in denying his claim of entitlement to service con-
nection for his mental disability and urged the court to
reverse the Board’s decision under the “clearly erroneous”
standard. Specifically, Mr. Deloach asserted that reversal
is appropriate because the Board’s decision is “clearly
erroneous in light of the uncontroverted evidence in [his]
favor.”
The Court of Appeals for Veterans Claims held that
reversal was not appropriate under the clearly erroneous
standard because such a reversal would require the court
to analyze the opinions of Dr. Jenness-McClellan and Dr.
Atkins in the first instance. Instead, the court ruled that
a remand was required because it was unclear whether
the Board adequately considered all evidence in its evalu-
ation, including the records of Dr. Jenness-McClellan, and
provided a sufficient reason for denial of service connec-
DELOACH v. SHINSEKI 7
tion. The Court of Appeals for Veterans Claims stated
that “the lack of an adequate statement of reasons or
bases frustrates judicial review, and the failure to provide
an adequate medical examination involves factual devel-
opment.” Deloach, 2011 U.S. App. Vet. Claims LEXIS
512, at *8. The court observed that the Board did not
comply with its remand instructions to ensure that the
medical examination met instructions outlined by the
Board; specifically, acquiring an opinion on the etiology of
Mr. Deloach’s mental condition. The Court of Appeals for
Veterans Claims concluded that remand was required to
provide an adequate medical examination.
B. WILLIAM H. GREENE
Mr. Greene served on active duty from February 6,
1979 to February 5, 1983. During his station at Fort
Hood in 1982, Mr. Greene injured his left foot while
playing football. That year, a physician treated him for a
“foot injury” and diagnosed his injury as a sprain. Mr.
Greene reported ongoing pain, “swollen or painful joints,”
and “foot trouble” in his separation medical examination.
In December 2002, Dr. Edward A. Carrillo, a private
physician had opined that Mr. Greene’s foot injuries were
connected to military service. Similarly, in December
2004, Dr. Richard DiBacco, another private physician,
rendered an opinion that Mr. Greene’s foot disability was
a causal result of the original injury at Fort Hood.
Mr. Greene filed a claim for service connection with
respect to a bilateral foot condition in January 2001. The
VARO denied Mr. Greene’s claim for service connection,
stating that evidence shows the condition existed prior to
service. Next, Mr. Greene submitted a Statement in
Support of Claim requesting that his claim for service-
connected compensation be reopened based on the medical
8 DELOACH v. SHINSEKI
nexus provided by Dr. Carrillo. In the pertinent part, Dr.
Carrillo’s report stated that:
After reviewing his military records it was noted
that Mr. Greene was seen on base for left foot pain
in October of 1982 . . . . Military service duties in-
cluded activities such as marching, hiking, and
other duties that involve the feet . . . . It is of my
opinion that Mr. Greene’s left foot problem is mili-
tary service related since the problem began while
in the military and in the performance of the usu-
al military service activities.
Greene Joint App’x at 403.
In August 2003, the VARO again denied Mr. Greene’s
claim for service connection on the grounds that recent
evidence submitted, including Dr. Carrillo’s medical
report, was not new material. Mr. Greene filed another
Statement in Support of Claim in November 2003, re-
questing review and reconsideration of Dr. Carrillo’s
opinion, and adding a claim for a secondary knee injury
resulting from the foot injury.
In April 2004, the VARO denied service connection.
Mr. Greene appealed to Board on May 6, 2005. The Board
remanded to the VARO twice on August 2007 and No-
vember 2008 with instructions to provide Mr. Greene an
examination and opinion addressing the nature and
etiology of his foot disability.
In December 2008, a VA Compensation & Pension ex-
amination (“C&P exam”) diagnosed residuals of a left
ankle sprain with pain and limited motion and reported
that the onset of the injury was November 1982 at Fort
Hood. Yet the C&P exam concluded that the injury was
“at least as likely as not less than 50/50 the cause of
current symptomatology of left foot and ankle pain.”
Greene Joint App’x at A669–70. Based on evidence from
DELOACH v. SHINSEKI 9
the C&P exam, the VARO continued its denial of Mr.
Greene’s claim because his “left ankle sprain . . . is less
likely than not the cause of [his] current left foot prob-
lems.” Greene Joint App’x at 685.
Mr. Greene appealed to the Board which, in June
2009, considered his claim for the third time. The Board
found that the private physicians’ opinions—from Drs.
Carrillo and DiBacco—in favor of service connection less
probative than the C&P examiner’s opinion, which, ac-
cording to the Board’s interpretation, did not support
service connection. The Board discredited the private
physicians’ opinions because they allegedly did not review
the entire claim file, did not address a years-long symp-
tomatology gap, and did not discuss relevant facts in the
case. In contrast, the Board found the C&P examiner’s
opinion probative because it reviewed all the evidence and
offered a thorough rationale for its opinion that was
supported by the record. The Board found that the pre-
ponderance of the evidence was against awarding service
connection and, therefore, denied Mr. Greene’s claim.
Mr. Greene appealed to the Court of Appeals for Vet-
erans Claims, which issued an opinion in April 2011
vacating the Board’s denial and remanding the case for
additional development. It determined that the Board’s
decision to attribute less weight to the private physicians’
opinions and more probative value to the C&P exam was
based on findings that were (1) inadequate and (2) either
erroneous or unclear. In addition, the court noted that
the Board ignored internal inconsistencies in the C&P
examiner’s report and failed to provide an adequate
statement of reasons and bases for why it found that
report more probative. In light of the incomplete record
resulting from the Board’s inadequate findings, the Court
of Appeals for Veterans Claims held that reversal was not
10 DELOACH v. SHINSEKI
appropriate. Instead, it remanded the matter to the
Board.
These appeals of the remand orders followed. We
have jurisdiction pursuant to 38 U.S.C. § 7292(a), (c).
II. ANALYSIS
A. JURISDICTION
The Secretary argues that this court lacks juris-
diction to review the decisions remanding Mr. Deloach’s
and Mr. Greene’s cases to the Board. Generally, we
decline to review remand orders of the Court of Appeals
for Veterans Claims because they are viewed as non-final
decisions. See Ebel v. Shinseki, 673 F.3d 1337, 1340 (Fed.
Cir. 2012); Joyce v. Nicholson, 443 F.3d 845, 849 (Fed.
Cir. 2006); Williams v. Principi, 275 F.3d 1361, 1363 (Fed.
Cir. 2002). But see Byron v. Shinseki, 670 F.3d 1202, 1204
(Fed. Cir. 2012); Stevens v. Principi, 289 F.3d 814, 817
(Fed. Cir. 2002); Adams v. Principi, 256 F.3d 1318, 1320
(Fed. Cir. 2001). Unlike statutes governing cases ap-
pealed from other tribunals, the jurisdictional statute
implicated by these appeals does not explicitly premise
appellate review on the finality of the decision. Compare
28 U.S.C. § 1295(a)(1) (2006) (conferring jurisdiction over
“an appeal from a final decision of a district court”), with
38 U.S.C. § 7292(a) (2006) (“After a decision of the United
States Court of Appeals for Veterans Claims is entered in
a case, any party to the case may obtain a review of the
decision . . . .”). Thus, we have recognized a narrow
exception and depart from the strict finality rule only
when three conditions, termed the Williams conditions,
are met:
(1) [T]here must have been a clear and final deci-
sion 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
DELOACH v. SHINSEKI 11
court, would render the remand proceedings un-
necessary; (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.
Williams, 275 F.3d at 1364 (footnotes omitted).
While apparently conceding that the appeals of Mr.
Deloach and Mr. Greene require resolution of issues that
adversely affect the appellants (the second Williams
condition), the Secretary contends that neither appeal
presents a final decision on a legal issue or a substantial
risk that the decision would not survive a remand. Those
contentions, however, reflect a misunderstanding of the
legal issue appellants have pressed on their appeals.
Appellants do not assert that the Court of Appeals for
Veterans Claims misinterpreted its standard of review
when it determined that initial fact finding by the Board
was required or that the Board failed to properly explain
why it rejected certain evidence and favored other evi-
dence. Rather, the Appellants maintain that they are
legally entitled to a reversal on the record, and should not
be required to undergo a remand.
This case involves the same legal issue presented in
three cases where we had jurisdiction, Adams, Stevens,
and Byron: whether the Court of Appeals for Veterans
Claims has authority to reverse the Board instead of
remanding the case. As in Bryon, where the Court of
Appeals for Veterans Claims explicitly analyzed its statu-
tory authority and held that it did not have the authority
to reverse and must remand, the court in the instant
appeals held that reversal would be impermissible or not
appropriate notwithstanding Appellants’ contentions that
the record required reversal rather than remand. Com-
pare Byron v. Shinseki, No. 09-4634, 2011 U.S. App. Vet.
12 DELOACH v. SHINSEKI
Claims LEXIS 1293, at *17 (Vet. App. Jun. 20, 2011)
(“The Court will not address whether direct service con-
nection and an earlier effective date are warranted be-
cause that would require it to make factual
determinations in the first instance based on the evidence
the Board failed to consider, which it may not do. There-
fore, reversal is precluded as a remedy, and remand is
appropriate.” (citations omitted)), with Deloach, 2011 U.S.
App. Vet. Claims LEXIS 512, at *7–8 (“To reverse the
Board’s decision as the appellant requests would require
the Court to analyze the opinions of Drs. Jenness-
McClellan and Atkins in the first instance and to weigh
those opinions against the other evidence of record.
Because the Court is generally prohibited from finding
facts in the first instance, this would be impermissible.”
(citations omitted)), and Greene, 2011 U.S. App. Vet.
Claims LEXIS 873, at *13 (“Although, the appellant asks
this Court to reverse the Board’s erroneous findings and
order the award of service connection, such a request is
not appropriate in this case. The Court, therefore, will
remand this matter to the Board.” (citations omitted)).
Similarly, Stevens involved a situation where the Court of
Appeals for Veterans Claims ordered remand for an
alleged prohibited purpose—to allow the government to
make up a shortfall in its evidence to rebut a presumptive
entitlement to compensation. 289 F.3d at 817. Likewise,
a clear and final decision on a legal issue existed in Ad-
ams when the appellant argued that the Court of Appeals
for Veterans Claims should have ruled, without a remand,
that the government offered insufficient evidence to rebut
the presumption of sound condition. 256 F.3d at 1321.
All of these cases, like the ones pressed by Appellants,
implicate a legal right not to be subjected to a remand,
which if reversed by this court, would render the remand
proceedings unnecessary.
DELOACH v. SHINSEKI 13
These cases are readily distinguished from Ebel where
the Court of Appeals for Veterans Claims remanded when
it found the examiner’s report insufficient to establish
direct service connection. See 673 F.3d at 1341. The
court in the instant appeals, as in Byron, explicitly held
that it did not have authority to reverse. The court in
Ebel simply remanded without addressing whether it had
authority to remand. See Ebel v. Shinseki, No. 08-4130,
2011 U.S. App. Vet. Claims LEXIS 250, at *6, 10–11 (Vet.
App. Feb. 7, 2011). It follows that while the decision in
Byron and these appeals was final as to the issue of the
court’s lack of authority to reverse, Ebel did not present a
clear and final decision on that legal issue as required
under the first Williams condition. Thus, while the first
Williams condition was not satisfied in Ebel, it is satisfied
in the instant appeals. 1
These cases present an even more compelling circum-
stance for an immediate review than Byron. The Board
on remand in Byron still had to address whether the
appellant had established a direct service connection, and
if so, whether she was entitled to an earlier effective date.
Byron, 2011 U.S. App. Vet. Claims LEXIS 1293, at *17.
1 To be clear, these appeals meet the narrow excep-
tion to finality enunciated in Williams exclusively on the
rationale articulated in Byron; that is, after addressing
the matter, the CAVC determined that it lacked authority
to reverse the Board rather than remand the case. Byron,
670 F.3d at 1205 (“[T]his is one of the rare circumstances
where review of a remand order is proper.”). It remains
true that appellants cannot satisfy the Williams condi-
tions by merely appealing a remand order and arguing
that the petitioner was entitled to a reversal on the rec-
ord. Ebel, 673 F.3d at 1341 n.1. Otherwise, the narrow
exception under Williams would swallow the strict rule of
finality. Id.
14 DELOACH v. SHINSEKI
Notwithstanding the remaining issues that could only be
addressed on remand, this court held that jurisdiction
was proper in Byron. 670 F.3d at 1205. Appellants in the
instant cases alleged that the Board clearly erred in not
awarding a service connection based on the record as it
stood; thus, reversal would inure in them the relief they
seek without further fact-finding on tangential matters.
The Secretary makes the related jurisdictional argu-
ment that the instant appeals do not involve a “challenge
to the validity of any statute or regulation or any inter-
pretation therefore,” or require interpretation of constitu-
tional or statutory provisions. See 38 U.S.C. § 7292(c).
This, the Secretary contends, divests the court of jurisdic-
tion notwithstanding satisfaction of the Williams condi-
tions. Prior decisions by this court, however, make clear
that questions concerning the Court of Appeals for Veter-
ans Claims’ statutory authority to remand are legal
questions that negate the Secretary’s alternative jurisdic-
tional challenge. Myore v. Principi, 323 F.3d 1347, 1353
(Fed. Cir. 2003) (citing Stevens, 289 F.3d at 818 and
Adams, 256 F.3d at 1321).
Turning to the third Williams condition, there is un-
doubtedly a substantial risk that the legal issue will not
survive a remand. A remand will surely moot Appellants’
claim that they have a legal right to a favorable decision
without the need for a remand. Byron, 670 F.3d at 1205.
“Our cases have distinguished (1) situations where an
issue might be mooted by a failure to present sufficient
evidence on remand from (2) situations where the very
authority of the [Court of Appeals for Veterans Claims] to
remand might be mooted by the remand itself.” Duch-
esneau v. Shinseki, 679 F.3d 1349, 1353 (Fed. Cir. 2012).
This court does not have jurisdiction in cases presenting
the first situation. See, e.g., id.; Donnellan v. Shinseki,
676 F.3d 1089, 1093 (Fed. Cir. 2012); Joyce, 443 F.3d at
DELOACH v. SHINSEKI 15
850; Myore, 323 F.3d at 1352–53; Winn v. Brown, 110
F.3d 56, 57 (Fed. Cir. 1997). This is true regardless of
whether the appellant would win or lose based on the
facts and legal standards confronted on remand so long as
the disputed issue would survive a subsequent appeal.
See Winn, 110 F.3d at 57. Conversely, in cases like Ad-
ams, Stevens, and Byron, we have held that challenges
questioning the authority of the Court of Appeals for
Veterans Claims to order a remand, which might not
survive a remand, satisfied the third Williams condition
and, therefore, constituted an appealable final decision.
Duchesneau, 679 F.3d at 1354. Because the instant
appeals present the same question of the authority of the
court to reverse instead of remanding, jurisdiction is
therefore proper.
B. DISCUSSION
Congress has limited the scope of our review of a deci-
sion of the Court of Appeals for Veterans Claims by
statute. See 38 U.S.C. § 7292. Absent a constitutional
issue, this court may not review challenges to factual
determinations or challenges to the application of a law or
regulation to facts. 38 U.S.C. § 7292(d)(2). We review
questions of law, including the interpretation of statutes
and regulations, de novo. DeLaRosa v. Peake, 515 F.3d
1319, 1321 (Fed. Cir. 2008).
The Court of Appeals for Veterans Claims has “exclu-
sive jurisdiction to review decisions of the Board of Veter-
ans’ Appeals.” 38 U.S.C. §7252(a). On review, 38
U.S.C. §7261(a)(4) instructs the court to examine the
Board’s findings of material fact according to a “clearly
erroneous” standard. 38 U.S.C. § 7261(a)(4); see also
Padgett v. Principi, 19 Vet. App. 133, 145 (2005) (en banc)
(identifying the Board’s decision regarding service connec-
tion as a finding of fact that the court “reviews under the
‘clearly erroneous’ standard of review set forth in 38
16 DELOACH v. SHINSEKI
U.S.C. § 7261(a)(4)”), withdrawn on other grounds, 19 Vet.
App. 334 (2005), rev’d, 473 F.3d 1364 (Fed. Cir. 2007).
Where the Court of Appeals for Veterans Claims deter-
mines that findings of material fact adverse to the claim-
ant are clearly erroneous, the court shall “hold unlawful
and set aside or reverse such finding[s].” 38 U.S.C.
§7261(a)(4) (emphasis added). “A finding is ‘clearly erro-
neous’ when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948); see also Andino v. Nicholson, 498 F.3d
1370, 1373 n.1 (Fed. Cir. 2007) (“To be ‘clearly erroneous’
there must be a definite and firm conviction that a mis-
take has occurred.”); Sanchez-Benitez v. Principi, 259 F.3d
1356, 1360 (Fed. Cir. 2001).
In reviewing for clear error, the Court of Appeals for
Veterans Claims is required under § 7261(b) to “take due
account of the Secretary’s application” of the benefit of the
doubt standard outlined in 38 U.S.C. § 5107(b). 38 U.S.C.
§ 7261(b); see also Mariano v. Principi, 17 Vet. App. 305,
313 (2003). The statutory provision establishing the
benefit of the doubt standard provides:
The Secretary shall consider all information and
lay and medical evidence of record in a case before
the Secretary with respect to benefits under laws
administered by the Secretary. When there is an
approximate balance of positive and negative evi-
dence regarding any issue material to the deter-
mination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.
38 U.S.C. § 5107(b).
The dual requirement placed on the Court of Appeals
for Veterans Claims by § 7261(a)(4) and (b)—to hold
DELOACH v. SHINSEKI 17
unlawful and set aside or reverse clearly erroneous find-
ings of fact and take due account of the Secretary’s appli-
cation of the benefit of the doubt standard—indicates
congressional intent to invest the court with the authority
to reverse certain Board decisions. Congress’ enactment
of the Veterans Benefits Act of 2002, which altered the
scope of the court’s judicial review, expressly empowered
it to reverse adverse findings of material fact that are
“clearly erroneous” rather than remand to the Board for
re-determination. Veterans Benefits Act of 2002, Pub. L.
No. 107-330, § 401(c), 116 Stat. 2820, 2832 (codified as
amended at 38 U.S.C. § 7261(a)(4)).
The language of the statute and legislative history in-
dicates that the Court of Appeals for Veterans Claims has
full authority to reverse cases that are clearly erroneous.
See 38 U.S.C. § 7261(a)(4). Congress added the “or re-
verse” language to the statute with the enactment of the
Veterans Benefits Act of 2002 (“VBA”). See Pub. L. No.
107-330, § 401(c), 116 Stat. at 2832. The problem in 2002
with the appeals process was the number of cases being
remanded by the court and the delay those remands
caused. See Pending Legislation: Hearing Before the S.
Comm. on Veterans’ Affairs, 107th Cong. 60, 66 (2002)
(statement of James Fischl, Director, The American
Legion) (addressing the long wait created by the remand
of cases by the Court of Appeals for Veterans Claims back
to the Board). Congress added the “or reverse” language
to mitigate this problem. See id. (expressing the view
that the “or reverse” language would “address[] a long-
standing concern of The American Legion . . . [and] pro-
vide more timely final decisions on issues on appeal.”).
It was Congress’ intent to clarify the Court of Appeals
for Veterans Claims’ authority and expressly instruct the
court that it had the power to reverse. See 148 Cong. Rec.
22,913 (2002) (statement of Sen. Rockefeller). Senator
18 DELOACH v. SHINSEKI
Rockefeller, Chairman of the Committee on Veterans’
Affairs, explained that “the addition of the words ‘or
reverse’ after ‘and set aside’ . . . is intended to emphasize
that the [Court of Appeals for Veterans Claims] should
reverse clearly erroneous findings when appropriate,
rather than remand the case.” Id. Representative Lane
Evans, a House committee member on the legislation,
expressed the same when urging for passage of the bill.
Id. at 22,594 (explaining that the legislation “clarifies the
authority of the Court of Appeals for Veterans Claims to
reverse decisions of the Board of Veterans Appeals in
appropriate cases”). Additionally, the House and Senate
Committees’ Joint Explanatory Statement to the VBA
noted that the addition of the language indicates that
both Houses of Congress “expect the Court to reverse
clearly erroneous findings when appropriate, rather than
remand the case.” Id. at 22,917 (emphasis added). Con-
sequently, the court is free to exercise reversal power in
appropriate cases and is not legally restricted only to
remand.
Against this backdrop, we turn to the instant appeals.
Appellants argue that the Court of Appeals for Veterans
Claims erred by remanding instead of reversing the
Board’s decision under the clearly erroneous standard.
Reversal is mandated, they maintain, when the records
are viewed in their entirety and after they have been
given the benefit of the doubt under § 5107. Appellants
reason that due to the interplay between the court’s
ability to reverse and veteran’s entitlement to the benefit
of the doubt, it has a duty to independently weigh the
entirety of the evidence to determine whether the Board’s
factual findings are clearly erroneous. We disagree. The
Court of Appeals for Veterans Claims, as part of its clear
error review, must review the Board’s weighing of the
evidence; it may not weigh any evidence itself. As we
have recognized, the statute prohibits the court from
DELOACH v. SHINSEKI 19
making factual findings in the first instance. Andre v.
Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2002) (quoting 38
U.S.C. § 7261(c)).
The statutory provisions are consistent with the
general rule that appellate tribunals are not ap-
propriate fora for initial fact finding. Thus, the
Supreme Court has held that when a court of ap-
peals reviews a district court decision, it may re-
mand if it believes the district court failed to
make findings of fact essential to the decision; it
may set aside findings of fact it determines to be
clearly erroneous; or it may reverse incorrect
judgments of law based on proper factual findings;
“[b]ut it should not simply [make] factual findings
on its own.”
Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)
(alterations in original) (quoting Icicle Seafoods, Inc. v.
Worthington, 475 U.S. 709, 714 (1986)). We reaffirm that
the evaluation and weighing of evidence are factual
determinations committed to the discretion of the fact-
finder—in this case, the Board. Bastien v. Shinseki, 599
F.3d 1301, 1306 (Fed. Cir. 2010). But where the Board
has performed the necessary fact-finding and explicitly
weighed the evidence, the Court of Appeals for Veterans
Claims should reverse when, on the entire evidence, it is
left with the definite and firm conviction that a mistake
has been committed. U.S. Gypsum, 333 U.S. at 395.
Appellants also argue that the Court of Appeals for
Veterans Claims impermissibly remanded after allegedly
finding that the evidence was controverted. As explained
below, we do not perceive the courts’ remand orders as
contingent upon the existence of controverted evidence,
but rather on procedural and substantive defects in the
proceedings before the Board. Thus, this argument
entitles Appellants to no relief. To be clear, this opinion
20 DELOACH v. SHINSEKI
does not foreclose the Court of Appeals for Veterans
Claims from finding that reversal is appropriate where,
despite the existence of controverting evidence, a finding
of material fact is clearly erroneous. See Padgett, 19 Vet.
App. at 147.
In Mr. Deloach’s case, the Court of Appeals for Veter-
ans Claims held that the Board failed to provide adequate
reasons and bases for rejecting the opinions of Drs. Jen-
ness-McClellan and Atkins. “The Board is statutorily
compelled by [38 U.S.C. §] 7104(d)(1) to articulate reasons
and bases to provide for judicial review of its findings and
conclusions.” Sickels v. Shinseki, 643 F.3d 1362, 1365
(Fed. Cir. 2011). Without an adequate statement, it is
impossible to understand the precise basis for the Board’s
decision and conduct informed appellate review. The
Court of Appeals for Veterans Claims also determined
that the VA failed to provide an adequate medical exam
despite the Board’s earlier order of an examination
providing an opinion on the etiology of Mr. Deloach’s
current diagnosis. The VA is required to provide a medi-
cal examination when “necessary to make a decision on
the claim.” 38 U.S.C. § 5103A(d)(1). And if inadequate,
the VA should request clarification or order a new exami-
nation. See 38 C.F.R. § 4.2. Remand is appropriate under
either of these defects identified by the Court of Appeals
for Veterans Claims. See Adams, 256 F.3d at 1322 (“If the
reviewing court simply cannot evaluate the record before
it, the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or
explanation.” (quoting Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 744 (1984))).
In Mr. Greene’s case, the Court of Appeals for Veter-
ans Claims viewed the Board’s justification for according
less probative weight to the opinions of Drs. Carrillo and
DiBacco as unclear, inadequate, and legally erroneous.
DELOACH v. SHINSEKI 21
Similarly, it found inadequate reasons and bases for
affording the C&P examiner’s report more probative
value, particularly when it was internally inconsistent
and ambiguous. As we previously recognized, “when the
Board misinterprets the law and fails to make the rele-
vant initial factual findings, ‘the proper course for the
Court of Appeals for Veterans Claims [is] to remand the
case to the [Board] for further development and applica-
tion of the correct law.’” Byron, 670 F.3d at 1205 (citing
Hensley, 212 F.3d at 1264); Stevens, 289 F.3d at 817–18
(holding that when the Board commits a legal error “the
appropriate remedy is normally for the reviewing court to
remand”); Adams, 256 F.3d at 1322 (remanding for expla-
nation of a medical examination or a supplemental exam
given the ambiguity of the original). As was true in Mr.
Deloach’s case, the Court of Appeals for Veterans Claims
properly ordered remand in Mr. Greene’s. No doubt
situations will arise where clearly erroneous judgments
will be based on proper factual findings where the court
must reverse rather than remand. Neither of these
appeals, however, present such a situation.
III. CONCLUSION
For the foregoing reasons, we affirm the Court of Ap-
peals for Veterans Claims’ decision remanding the case to
the Board.
AFFIRMED
COSTS
Each party shall bear its own costs.