Elkins v. Gober

• Decision Date: 13 October 2000
• Citation: 229 F.3d 1369
• Parties: (Fed. Cir. 2000) NORVAL J. ELKINS, Claimant-Appellant, v. HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee. 00-7023 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1369

229 F.3d 1369 (Fed. Cir. 2000)

NORVAL J. ELKINS, Claimant-Appellant, v.HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee.

00-7023

United States Court of Appeals for the Federal Circuit

DECIDED: October 13, 2000

Appealed from: United States Court of Appeals for Veterans Claims

Judge Ronald M. Holdaway

[Copyrighted Material Omitted] Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

David Feniger, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee.On the brief were David W. Ogden, Assistant Attorney General; David M. Cohen, Director; Kirk T. Manhardt, Assistant Director; and Elizabeth M. Hosford, Attorney.

Before MAYER, Chief Judge, FRIEDMAN, Senior Circuit Judge, and MICHEL, Circuit Judge.

Opinion for the court filed by Circuit Judge MICHEL.Dissenting opinion filed by Senior Circuit Judge FRIEDMAN.

MICHEL, Circuit Judge.

Norval J. Elkins appeals a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court").In a one-judge memorandum decision, the Veterans Court: 1) affirmed the decision of the Board of Veterans' Appeals ("Board" or "BVA") denying Elkins' claim for service connection for headaches; 2) dismissed his appeal with respect to an alleged neck injury because the BVA did not decide the matter below; and 3) vacated the Board's decision denying service connection for a back condition and remanded the back injury claim for adjudication in light of what it held was new and material evidence.Elkins v. West, No. 98-1701(Ct. App. Vet. Cl.Aug. 31, 1999)(Elkins II).On appeal, Elkins does not challenge the remand.We hold that the Veterans Court erred in affirming the denial of the headache claim because it relied on a finding as to well groundedness different from that cited by the BVA and erroneously characterized Elkins' neck injury argument as a new claim, never adjudicated by the BVA and thus beyond the court's jurisdiction.Accordingly, we vacate the decision of the Veterans Court affirming the BVA denial, reverse its decision regarding lack of jurisdiction, and remand the case with instructions to remand to the BVA.

BACKGROUND

Elkins served on active duty in the United States Air Force from January 1950 to September 1953.In March 1951, Elkins was involved in an auto accident.Between October 1952 and December 1952, he was treated for headaches on three occasions.When he was examined at the time of his separation from military service, Elkins reported that he suffered from headaches and back pain.

In late 1953, Elkins filed with the Veterans Administration Regional Office("RO") a claim for service connection for various injuries suffered as a result of the 1951 accident, including back pain, scars to the face, and head injury.At that point a Veterans Administration doctor examined him.After reviewing the doctor's report, the RO awarded benefits for scars on the face, but denied benefits for all other injuries.

In April 1990, Elkins attempted to reopen his claim for service connection as to the back injury based on "new and material evidence."Later in 1990, he amended the claim to include service connection for headaches.The RO denied this claim entirely in March 1991, and Elkins filed a notice of disagreement ("NOD").In response to the NOD, the Department of Veterans Affairs("DVA")¹ generated a Statement of the Case indicating that Elkins' appeal to the Board concerned a claim for back injury and headaches.In his substantive appeal to the BVA, Elkins referenced back problems and headaches, but not neck or cervical injury.The BVA remanded the claim with directions for the RO to obtain medical and social security records and ordered the DVA to provide Elkins with orthopedic and neurological examinations.After the RO denied his claims again, Elkins appealed back to the BVA.Based on the reports of the examinations and records from Elkins' private doctors, the BVA determined that Elkins failed to submit new and material evidence regarding his back condition.In addition, the BVA found that he had not submitted a well grounded claim for headaches because he had not provided competent medical evidence of a current headache condition.In support of its conclusion that Elkins does not currently suffer from headaches, the BVA quoted a 1994 report from a neurological examiner, which states:

Regarding headaches, [the veteran] does not have headaches.However, what he was interpreting as headaches was actually cervical pain or neck pain, and indeed he has mild limitation of range of motion and it would not be unreasonable to connect mechanical back pain and muscle spasms with cervical pain and spasms.

In the Appeal of Norval J. Elkins, No. 92-04 590 (BVA July 16, 1998)(Elkins I), slip op. at 17.

Elkins appealed to the Veterans Court, arguing that the BVA erred in denying service connection for headaches and back injury and that it further erred in not recognizing, based on the evidence presented, a well grounded claim for neck pain.With respect to the back condition, the Veterans Court remanded to the BVA for further adjudication.The court then determined, contrary to the BVA, that Elkins had indeed submitted competent medical evidence of a current headache condition but ruled nevertheless that he had failed to establish a well grounded claim "because there is no medical evidence in the record which establishes a medical nexus between his headaches and his military service."Elkins II, at *4.Finally, the court dismissed Elkins' claim with respect to neck injury for lack of jurisdiction because Elkins had not filed a claim or NOD alleging neck injury, and because neck injury, per se, was never incorporated into the BVA's statements of the case, raised in the BVA appeals, or discussed in the BVA decision.SeeElkins II, at *4.Elkins timely appealed the decision as to the headaches and neck injury to this court.The remand for back injury is not before us.

DISCUSSION

I.Jurisdiction

On August 31, 1999, the Veterans Court affirmed the BVA's denial of Elkins' claim for headaches as not well grounded, dismissed his newly asserted claim for neck injuries for lack of jurisdiction, and remanded his previously denied back injury claim to the BVA for further proceedings because of new and material evidence.The first two decisions are challenged in this appeal.A threshold question in this case is whether this court has jurisdiction to hear Elkins' appeal when the Veterans Court has rendered a final decision with respect to only two of the three issues or claims presented to it by Elkins in an appeal from a single Board decision.Although upon our request for supplemental briefing on this issue both parties agreed we do have jurisdiction, our independent analysis is still required.

A.The jurisdiction of this court over appeals from the Veterans Court is governed by 38 U.S.C. 7292, which provides in relevant part that "[a]fter 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."38 U.S.C. 7292.This jurisdictional provision leaves open the question of whether the Veterans Court must render a "final" decision disposing of all the claims or issues presented to it before we may exercise appellate jurisdiction.

Had Elkins appealed a similar decision to us from a district court, there would be little question that we would lack jurisdiction.Under the "final judgment rule,"a party may not appeal district court rulings until the trial court has rendered a decision that "'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'"Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373(1981)(quotingCoopers & Lybrand v. Livesay, 437 U.S. 463, 467(1945)).In appeals from district court rulings, all claims for relief must be resolved before an appeal on any claim may be taken.Seeid.;see alsoFed. R. Civ. P. 54(b)(providing that, in the absence of an express determination by a district court, when more than one claim for relief is presented in an action, the parties shall not terminate the action prior to the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties).The final judgment rule serves a number of important purposes, including minimizing appellate court interference with lower court proceedings and promoting efficient judicial administration.SeeFirestone, 449 U.S. at 374.The collateral order doctrine, not applicable here, is an exception to this general rule.

B.This court has recognized, however, that there is not always "precise congruence between 'the classical jurisdictional requirements' applied to appeals from district courts and the jurisdictional standards applicable to review of administrative proceedings."Dewey Electronics Corp. v. United States, 803 F.2d 650, 654(Fed. Cir.1986).The relevant consideration, in determining whether an administrative adjudication is sufficiently "final" is "'whether the process of the administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.'"Id.(quotingPort of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71(1970)).

This court has held, when reviewing decisions of agency boards of contract appeals, that a litigant's individual claims for relief may, in certain circumstances, be separable for purposes of appellate review.SeeDewey, 803 F.2d at 653-54;see alsoKinetic Builder's Inc. v. F. Whitten Peters, 226 F.3d 1307, 1312(Fed. Cir.Sept. 25, 2000);Orlando Helicopter Airways, Inc. v. Widnall, 51 F.3d 258, 261(Fed. Cir.1995).In Dewey, the...