Adams v. Principi

• Decision Date: 13 July 2001
• Docket Number: No. 00-7160,CLAIMANT-APPELLANT,RESPONDENT-APPELLEE,00-7160
• Citation: 256 F.3d 1318
• Parties: (Fed. Cir. 2001) JIMMY D. ADAMS,, v. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS,
• Court: U.S. Court of Appeals — Federal Circuit

Page 1318

256 F.3d 1318 (Fed. Cir. 2001)

JIMMY D. ADAMS, CLAIMANT-APPELLANT, v. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.

No. 00-7160

United States Court of Appeals for the Federal Circuit

July 13, 2001

Appealed from: United States Court of Appeals for Veterans Claims

Ronald L. Smith, Disabled American Veterans, of Washington, Dc, argued for claimant-appellant. With him on the brief was Stephen L. Purcell, Attorney.

Martin F. Hockey, Jr., Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, Dc, argued for respondent-appellee. With him on the brief were David M. Cohen, Director; and Harold D. Lester, Jr., Assistant Director. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel; and David J. Barrans, Staff Attorney, Department of Veterans Affairs, of Washington, Dc.

Before Clevenger, Schall, and Bryson, Circuit Judges.

Bryson, Circuit Judge.

Chief Judge Kenneth B. Krammer

Jimmy D. Adams appeals from a decision of the Court of Appeals for Veterans Claims ("Veterans Court"). In the order on appeal, the Veterans Court vacated a decision of the Board of Veterans' Appeals and remanded the matter to the Board for further development of the record. Adams v. West, 13 Vet. App. 453 (2000). We affirm.

I.

Mr. Adams began active duty in the United States Navy on August 20, 1992. Prior to starting service, Mr. Adams underwent a medical examination, which did not detect any of the conditions for which he later sought compensation. In November 1992, he was placed on Limited Duty Board for medical reasons. Subsequent medical examinations resulted in his being diagnosed as suffering from hypogonadism and growth hormone deficiency. In October 1993, he was honorably discharged from the Navy based on a finding that he was unfit for duty because of those and other medical conditions.

While his discharge was pending, Mr. Adams filed a claim for disability compensation with the Department of Veterans Affairs (DVA), seeking service connection for the diseases of hypogonadism, hypothyroidism, and growth hormone deficiency. The DVA conducted a compensation examination in April 1994 and based on that examination the DVA regional office denied service connection. Mr. Adams appealed the regional office decision to the Board, which issued a decision in April 1997 that remanded the case to the regional office. The remand instructions directed that a DVA endocrinologist examine Mr. Adams and that the regional office reconsider Mr. Adams's claims in light of the examination. The instructions specified that the endocrinologist should evaluate whether the conditions were related to service or whether they were present prior to service and should comment on the "degree of probability, in percentage terms, that [the conditions] had their onset during the veteran's period of service or are otherwise related to service."

The examination ordered by the Board was conducted on February 27, 1998, by Dr. Michael Lawson. Dr. Lawson's examination report included the following:

Addressing issues raised specifically in the Compensation and Pension exam request, I believe there is evidence that the patient's hypogonadism and growth hormone deficiency may have pre-existed his admission to the service based on the fact that his epiphyses were not found to be closed on his initial bone radiograph when he was evaluated at the National Naval Medical Center in Bethesda. He was reported to have a bone age of thirteen years at that time when his chronological age was eighteen. . . . The fact that the patient even now has small, soft testes and sparse body hair would also support the likelihood that this condition existed prior to his beginning his active military service.

The regional office again denied service connection in May 1998, and Mr. Adams again appealed to the Board. The Board affirmed and noted that while Mr. Adams was entitled to the presumption of soundness based on the pre-service examination, see 38 U.S.C. §§ 1111, the presumption had been rebutted by clear and unmistakable evidence based on Dr. Lawson's report, which showed, as the Board characterized it, that Mr. Adams's medical conditions "clearly pre-existed service."

Mr. Adams appealed the Board's decision to the Veterans Court. The court considered whether the "Board had erred in determining that there was clear and unmistakable evidence to rebut the presumption of sound condition." Rather than decide that question, however, the court concluded that it was "premature, based on [Dr. Lawson's] report and given the closeness of the question," for the Board to decide whether the presumption of soundness had been rebutted "without seeking, pursuant to the duty to assist, see 38 U.S.C. §§ 5107(a), clarification from Dr. Lawson as to the degree of likelihood of preexistence, or seeking other medical opinions on this subject." Because the Veterans Court concluded that the Board had acted prematurely in ruling on the issue, it remanded the case to the Board for further proceedings. Mr. Adams appealed that order to this court.

II.

The government argues that we must dismiss this appeal because the Veterans Court's remand order was not a final, appealable order. In applying the statute that grants us jurisdiction over appeals from the Veterans Court, 38 U.S.C. §§ 7292, we have generally declined to review non-final orders of the Veterans Court, and we have held that remand orders from the Veterans Court ordinarily are not appealable because they are not final. See Allen v. Principi, 237 F.3d 1368, 1372 (Fed. Cir. 2001); Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). Under some circumstances, however, we have entertained appeals from remand orders. See, e.g., Allen, 237 F.3d at 1372-74; Dambach v. Gober, 223 F.3d 1376, 1379 (Fed. Cir. 2000); Jones v. West, 136 F.3d 1296, 1298 (Fed. Cir. 1998); Travelstead v. Derwinski, 978 F.2d 1244, 1247-49 (Fed. Cir. 1992). In Allen, for example, we held that we could review a remand order where the order under review precluded the veteran from relying on certain evidence to increase his rating level, and where it was clear that the remand proceedings would not result in granting the veteran the relief he sought because he had no other available evidence. 237 F.3d at 1373-74. In Dambach, similarly, we reviewed a remand order based on our conclusion that the order altered the evidentiary burdens for the remand proceedings and might make the legal issue unreviewable on an appeal from a final order denying relief. 223 F.3d at 1379.

We conclude that in light of the nature of the claim pressed by Mr. Adams it is appropriate for us to review the merits of his appeal. Mr. Adams's position, in essence, is that it was improper for the Veterans Court to remand the case to the Board. Instead, he contends, the court should have ruled, without a remand, that the DVA offered insufficient evidence to rebut the presumption of sound condition. The question whether Mr. Adams is entitled to a decision without a remand may become moot once the remand proceeding has taken place. See Travis v. Sullivan, 985 F.2d 919, 923 (7th Cir. 1993) (court of appeals has jurisdiction to review lawfulness of remand order because that issue would become moot after remand); AJA Assocs. v. Army Corp of Eng'rs, 817 F.2d 1070, 1073 (3d Cir. 1987) (court of appeals has jurisdiction to review remand order granting a new hearing because the issue of the right to the hearing would become moot after remand).

If Mr. Adams is correct on the merits that he has a right to judgment without a remand, the order of...