# United States Court of Appeals for the Federal Circuit

02-7259

MARTHA M. MYORE,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

[Kenneth M. Carpenter]{.underline}, Carpenter Chartered, of Topeka,
Kansas, argued for claimant-appellant.

[David B. Stinson]{.underline}, Trial Attorney, Commercial Litigation
Branch, Civil Division, Department of Justice, of Washington, DC, argued
for respondent-appellee. With him on the brief were [Robert D. McCallum,
Jr.]{.underline}, Assistant Attorney General; [David M.
Cohen]{.underline}, Director; and [Franklin E. White, Jr.]{.underline},
Assistant Director. Of counsel on the brief were [Richard J.
Hipolit]{.underline}, Deputy Assistant General Counsel; and [David R.
McLenachen]{.underline}, Attorney, 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

02-7259

MARTHA M. MYORE,

Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: March 27, 2003

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before RADER, GAJARSA, and DYK, [Circuit Judges]{.underline}.

DYK, [Circuit Judge]{.underline}.

Martha M. Myore ("Myore") appeals the order of the United States Court
of Appeals for Veterans Claims remanding to the Board of Veterans'
Appeals ("the Board") her claim for dependency and indemnity
compensation. [Myore v. Principi]{.underline}, No. 00-488, slip op. at 4
(Vet. App. July 9, 2001). Because the remand order of the Veterans Court
is not an appealable final order, we dismiss the appeal.

BACKGROUND

This case has a long history. The opinions of the Veterans Court in this
matter provide a full description of that history. [Myore v.
Brown]{.underline}, 9 Vet. App. 498 (1996) ("[Myore I]{.underline}");
[Myore v. Principi]{.underline}, No. 00-488 (Vet. App. July 9, 2001)
("[Myore II]{.underline}"). We simply summarize here the relevant facts.

Myore is the widow of deceased veteran Kenneth B. Myore ("the veteran"),
who served in the United States Marine Corps from May 1984 until his
death on May 26, 1990. [Myore I]{.underline}, 9 Vet. App. at 500.
According to the Board's findings of fact of January 31, 2000, the
veteran's death was the result of a self-inflicted gunshot wound to the
head incurred while the veteran was playing "Russian roulette." [In re
Myore]{.underline}, No. 92-23 224, slip op. at 2 (Bd. Vet. App. Jan. 31,
2000).

In July 1990, Myore filed a claim with the Department of Veterans
Affairs ("the DVA") for dependency and indemnity compensation under 38
U.S.C. § 1310. [Myore I]{.underline}, 9 Vet. App. at 501-02. That
statute provides:

> When any veteran dies after December 31, 1956, from a
> service-connected or compensable disability, the Secretary shall pay
> dependency and indemnity compensation to such veteran's surviving
> spouse, children, and parents. The standards and criteria for
> determining whether or not a disability is service-connected shall be
> those applicable under chapter 11 of this title.
>
> 38 U.S.C. § 1310(a) (2000). Chapter 11 provides the standards for
> determining whether a disability is service-connected. Relevant to
> this appeal is 38 U.S.C. § 1110, which requires that "no compensation
> shall be paid if the disability is a result of the veteran's own
> willful misconduct . . . ." 38 U.S.C. § 1110 (2000). In June 1991, the
> DVA regional office determined that the veteran's death was not
> service-connected because it was attributable to the veteran's own
> willful misconduct, and denied Myore's claim. [Myore I]{.underline}, 9
> Vet. App. at 501.
>
> In April 1992, Myore appealed the regional office's decision to the
> Board. [Id.]{.underline} at 502. In December 1993, the Board found
> that the veteran's death was due to a self-inflicted gunshot wound to
> the head while playing Russian roulette, and that the veteran was not
> insane at the time of his death. [Id.]{.underline} The Board found
> that the veteran's death was, therefore, the result of willful
> misconduct and affirmed the regional office's denial of disability and
> indemnity compensation. [Id.]{.underline}
>
> Myore appealed the Board's decision to the Veterans Court. On October
> 31, 1996, the court vacated and remanded the Board decision.
> [Id.]{.underline} at 500. The court held that the Board decision
> failed to indicate whether the Board accorded weight to the statutory
> presumption afforded by 38 U.S.C. § 105(a) that an injury or disease
> incurred during active military service was incurred in the line of
> duty, and did not specifically find willful misconduct by a
> preponderance of the evidence. [Id.]{.underline} at 503. The court
> further held that the Board did not base its conclusion of willful
> misconduct on a specific finding that the veteran engaged in "an act
> involving conscious wrongdoing or known prohibited action" or in
> "deliberate or intentional wrongdoing with knowledge of or wanton and
> reckless disregard of its probable consequences," as required by 38
> C.F.R. § 3.1(n). [Id.]{.underline}[^1] The court also held that the
> Board had failed adequately to consider whether the veteran committed
> suicide, and if so, whether the veteran was of unsound mind.
> [Id.]{.underline} at 504. According to the court, under 38 C.F.R. §
> 3.302, a finding of unsound mind would have negated the finding of
> willful misconduct. [Id.]{.underline} Finally, the court held that
> pursuant to the government's statutory duty to assist, on remand the
> Board "must seek to obtain" two documents that Myore had requested
> from the government. [Id.]{.underline} at 506-07.
>
> On remand, the Board specifically found that "\[t\]he veteran died as
> the result of a self-inflicted gunshot wound to the head while he was
> playing Russian roulette," and that "\[t\]he veteran's death was not
> the result of suicide." [In re Myore]{.underline}, No 92-23 224, slip
> op. at 2. The Board concluded that the veteran's actions constituted
> willful misconduct under 38 C.F.R. § 3.1(n), and, therefore, the
> veteran's death was not service-connected. [Id.]{.underline} at 8.
> Consequently, the Board denied Myore's claim for dependency and
> indemnity compensation.
>
> Once again, Myore appealed to the Veterans Court. Myore urged reversal
> of the Board decision, arguing that 38 U.S.C. § 1310(a) does not
> require that a surviving family member be denied dependency and
> indemnity compensation as a result of the deceased veteran's willful
> misconduct. [Myore II]{.underline}, slip op. at 2. In the alternative,
> Myore argued that a second remand was required, because the Board
> failed to follow the court's previous instructions on remand, and
> because the government failed to fulfill its duty to assist in the
> development of Myore's claim. [Id.]{.underline} at 1. In response, the
> government asked that the Board decision be vacated and remanded to
> the Board for readjudication in light of the enactment of the Veterans
> Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
> (2000) ("VCAA"), which amended 38 U.S.C. § 5103 (entitled "Notice to
> claimants of required information and evidence") and added 38 U.S.C. §
> 5103A (entitled "Duty to assist claimants"). [Id.]{.underline}
>
> On July 9, 2001, the court vacated and remanded the Board's decision
> of January 31, 2000. The court held that the Board should readjudicate
> the case in light of the newly enacted VCAA. [Id.]{.underline} at 2.
> The court noted that "all provisions of the VCAA are potentially
> applicable to claims pending on the date of the VCAA's enactment."
> [Id.]{.underline} (quoting [Holliday v. Principi]{.underline}, 14 Vet.
> App. 280, 286 (2001)). The court therefore held:
>
> \[I\]n view of "the absence of VA implementing regulations, and . . .
> \[in view of\] concerns of fundamental fairness and fair process, the
> Court must avoid cutting off an appellant's rights under the VCAA by
> prematurely injecting itself into the VA adjudication process and
> making determinations on issues that were not addressed by VA in the
> first instance" and that, therefore, "at least at this time . . . this
> Court may not determine in the first instance the applicability of the
> VCAA" to an appellant's claims.
>
> [Id.]{.underline} (quoting [Holliday]{.underline}, 14 Vet. App. at
> 290) (ellipses in original).
>
> Despite vacating and remanding to the Board, the court addressed
> Myore's argument that 38 U.S.C. § 1310(a) "cannot be interpreted to
> deny her \[dependency and indemnity compensation\] because of
> misconduct committed by the veteran." [Id.]{.underline} at 1. The
> court held that section 1310(a) provides for benefits only "where the
> veteran's death results from a service-connected disability as defined
> under chapter 11 of \[Title 38\]." [Id.]{.underline} at 2. Under 38
> U.S.C. § 1110, the court held, service-connection cannot be found
> where the disability is the result of the veteran's own willful
> misconduct. [Id.]{.underline} The court noted, however, that it
> "continue\[d\] to be concerned about whether VA regulations provide an
> objective standard or principled basis for distinguishing willful
> misconduct . . . from suicide . . . in a 'Russian roulette'
> situation." [Id.]{.underline} at 3. The court required that on remand
> the Board issue "a readjudicated decision supported by an adequate
> statement of reasons or bases." [Id.]{.underline} The court refrained
> from reviewing Myore's other arguments "in view of the readjudication
> that will be ordered in light of the enactment of the VCAA."
> [Id.]{.underline} at 20. The court specified that Myore "will be free
> to raise any such arguments on remand." [Id.]{.underline} at 3.
>
> Myore timely appealed the Veterans Court's interpretation of section
> 1310(a) to this court.

DISCUSSION

The government contends that this appeal should be dismissed, because
Myore has not appealed from a final order. We agree.

The statute granting this court jurisdiction over appeals from the
Veterans Court provides:

> 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 with respect to the validity of a decision of the
> Court on a rule of law or of any statute or regulation (other than a
> refusal to review the schedule of ratings for disabilities adopted
> under section 1155 of this title) or any interpretation thereof (other
> than a determination as to a factual matter) that was relied on by the
> Court in making the decision. Such a review shall be obtained by
> filing a notice of appeal with the Court of Appeals for Veterans
> Claims within the time and in the manner prescribed for appeal to
> United States courts of appeals from United States district courts.
>
> 38 U.S.C. § 7292(a) (2000), [as]{.underline} [amended]{.underline}
> [by]{.underline} Veterans Benefits Act of 2002, Pub. L. No. 107-330, §
> 402, 116 Stat. 2820, 2832 (2002). Although this provision does not
> include an express requirement of finality, "we have . . . 'generally
> declined to review non-final orders of the Veterans Court.'" [Williams
> v. Principi]{.underline}, 275 F.3d 1361, 1363 (Fed. Cir. 2002)
> (quoting [Adams v. Principi]{.underline}, 256 F.3d 1318, 1320 (Fed.
> Cir. 2001)). Of specific relevance to this appeal, "\[t\]his court
> typically will not review remand orders by the Court of Appeals for
> Veterans Claims 'because they are not final judgments.'"
> [Williams]{.underline}, 275 F.3d at 1364 (quoting [Winn v.
> Brown]{.underline}, 110 F.3d 56, 57 (Fed. Cir. 1997));
> [see]{.underline} [also]{.underline} [Adams]{.underline}, 256 F.3d at
> 1320 ("\[R\]emand orders from the Veterans Court ordinarily are not
> appealable because they are not final.").
>
> In [Williams]{.underline}, we held that there is a limited exception
> to the rule that remands are not appealable:
>
> Our cases establish that we 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 a
> remand, [i.e.]{.underline}, that the remand proceeding may moot the
> issue.
>
> 275 F.3d at 1364 (citations omitted).
>
> Myore contends that the Veterans Court misinterpreted 38 U.S.C. §§
> 1310(a) and 1110, and that the disposition of this legal issue
> satisfies the three criteria of [Williams]{.underline}, rendering the
> court's remand order an appealable final decision. Both parties agree
> that the first two requirements of [Williams]{.underline} are met. It
> is not disputed that the court's interpretation of sections 1310(a)
> and 1110, as barring indemnity and disability compensation to family
> members where the veteran's death was the result of willful
> misconduct, constitutes a "clear and final decision of a legal issue"
> that will "adversely affect the party seeking review." The parties
> disagree, however, as to whether the remand order satisfies the third
> criterion, [i.e.]{.underline}, whether there is "a substantial risk
> that the decision would not survive a remand."

We hold that there is not a substantial risk that the Veterans Court's
interpretation of sections 1310(a) and 1110 would evade further review
if Myore should lose on remand. This case is governed by our decision in
[Winn]{.underline}. In [Winn]{.underline}, 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, the veteran argued that his
condition was service-connected and also challenged the validity of a
DVA regulation, 38 C.F.R. § 3.303(c), which disallowed
service-connection for certain mental disorders. [Id.]{.underline} The
Veterans Court vacated and remanded the Board decision, holding that
further evidence was required to determine whether the veteran's
condition was service-connected. [Id.]{.underline} The court also held,
however, that the challenged regulation was valid. [Id.]{.underline} The
veteran appealed to this court, arguing that the Veterans Court's
decision regarding the validity of the regulation was an appealable
final decision, because it would be "effectively unreviewable at a later
stage of litigation." [Id.]{.underline} We rejected that contention and
dismissed the appeal. We reasoned:

> \[I\]n this case the Court of Veterans Appeals remanded Mr. Winn's
> claim to the \[Board\] for further fact finding on the merits of his
> particular disorder. There, Mr. Winn may win or lose on the facts of
> his case without regard to the regulation he now challenges. If 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.]{.underline}

The same reasoning applies to the present case. The Veterans Court
vacated and remanded Myore's claim for readjudication. On remand, Myore
may present evidence that the veteran's death was service-connected and
was not the result of willful misconduct. Myore may also pursue her
other claims, which the Veterans Court declined to resolve at this stage
of the proceeding. As in [Winn]{.underline}, 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. If 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. The Veterans Court's interpretation of
section 1310(a) will not, therefore, evade further review, and under the
criteria identified in [Williams]{.underline}, Myore has not appealed
from a final order.

The appellant argues that if an issue will be important in the
proceedings on remand and, if reversed, would result in a decision in
the claimant's favor, the [Williams]{.underline} test is satisfied. We
disagree. The 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. Rather,
"there must be a substantial risk that the decision would not survive a
remand." [Williams]{.underline}, 275 F.3d at 1364; [see]{.underline}
[also]{.underline} [Winn]{.underline}, 110 F.3d at 57 (holding that a
remand is appealable only "when the remand disposes of an important
legal issue that would be effectively unreviewable at a later stage of
litigation"); [cf.]{.underline} [Cabot Corp. v. United
States]{.underline}, 788 F.2d 1539, 1543 (Fed. Cir. 1986) (holding that
a remand issued by the Court of International Trade is not final and
appealable solely because it "finally determines the controlling issue
in the case" unless it is "effectively unreviewable on appeal from a
final judgment"). Hence, regardless of whether the Veterans Court's
interpretation of section 1310(a) will be important on remand, there is
no substantial risk that this interpretation will not survive the
remand, and the remand is, therefore, not a final appealable order.

The appellant argues that this conclusion is inconsistent with our
earlier decisions in [Adams]{.underline} and [Stevens v.
Principi]{.underline}, 289 F.3d 814 (Fed Cir. 2002). We disagree. In
those cases, rather than merely alleging legal error within the remand
order, the appellants challenged the very authority of the Veterans
Court to order a remand. In other words, the veterans claimed a legal
right to a decision without a remand. In [Stevens]{.underline}, "Mr.
Stevens's argument \[was\] that the remand \[had\] been ordered for a
prohibited purpose, that he \[was\] entitled to a decision in his favor
without the need for a remand, and that his right to relief might be
lost after further proceedings on remand." 289 F.3d at 817. Similarly,
in [Adams]{.underline}, "Mr. Adams's position, in essence, \[was\] that
it was improper for the Veterans Court to remand the case to the Board.
Instead, he contend\[ed\], the court should have ruled, without a
remand, that the DVA offered insufficient evidence to rebut the
presumption of sound condition." 256 F.3d at 1321. The appellants'
contention in [Adams]{.underline} and [Stevens]{.underline} was,
therefore, that the Veterans Court lacked the statutory power to remand,
under 38 U.S.C. § 7252(a).

In both cases, we held that the question of the authority of the
Veterans Court to order a remand might not survive a remand, and,
therefore, constituted an appealable final decision. In
[Adams]{.underline}, we held 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. . . . The question whether Mr. Adams is entitled to a
decision without a remand may become moot once the remand proceeding has
taken place." [Id.]{.underline} at 1321. In both cases, we definitely
answered the question of the Veterans Court's statutory authority to
remand. In [Adams]{.underline}, we held that "\[t\]he court is
authorized by statute to 'affirm, modify, or reverse a decision of the
Board [or to remand the matter, as appropriate]{.underline}.'"
[Id.]{.underline} (emphasis in original) (quoting 38 U.S.C. § 7252(a)).
In [Stevens]{.underline}, we held that, once the Veterans Court had
concluded that the Board had applied the wrong legal standard, "it was
proper for the court to remand Mr. Stevens's case to the Board." 289
F.3d at 818. There is no issue here as to the authority of the Veterans
Court to remand.

Nor is our decision in [Allen v. Principi]{.underline}, 237 F.3d 1368
(Fed. Cir. 2001), to the contrary. In [Allen]{.underline}, the appellant
waived his right to proceed on remand, conceding that he neither could
nor would seek to introduce new evidence on the remand that could lead
to a favorable decision. 237 F.3d at 1373-74. The appellant's sole
contention was that the Veterans Court had misinterpreted section 1110
as precluding service connection for alcohol abuse either on a secondary
service-connection basis or as evidence of an increase in the severity
of a service-connected disability. [Id.]{.underline} at 1371. We held
that because the Veterans Court's statutory interpretation "completely
precludes Allen from using his alcohol abuse disability to increase his
rating level," and because "Allen plans to submit no additional evidence
relating to any non-alcohol-related PTSD symptoms," the appellant was
entitled to appellate review in this court without exhausting his
remand. [Id.]{.underline} at 1373, 1374. But in [Allen]{.underline}, we
specifically distinguished [Winn]{.underline}, on the grounds that
"\[u\]nlike Winn . . . Allen cannot 'win' on remand, because no matter
what facts the Board finds on the issue of secondary service-connection,
Allen cannot \[and would not\] rely on his alcohol abuse disability to
increase his rating level." [Id.]{.underline} at 1373. Under the unique
circumstances presented in [Allen]{.underline}, where the veteran waives
the right to a remand, that remand order may be a final appealable
order.[^2] But [Allen]{.underline} provides no authority for considering
a decision to be final where, as here, the appellant intends to
participate in the remand proceeding. Where such participation is not
foreclosed by a concession, the remand decision is not final. This case
is controlled by [Winn]{.underline}.

CONCLUSION

Because Myore has not appealed from a final order, the appeal is

[DISMISSED.]{.underline}

COSTS

No costs.

[^1]: The regulation provides as follows:

    > Willful misconduct means an act involving conscious wrongdoing or
    > known prohibited action. A service department finding that an
    > injury, disease or death was not due to misconduct will be binding
    > on the Department of Veterans Affairs unless it is patently
    > inconsistent with the facts and the requirements of laws
    > administered by the Department of Veterans Affairs.

    It involves deliberate or intentional wrongdoing with knowledge of
    or wanton and reckless disregard of its probable consequences.

    Mere technical violation of police regulations or ordinances will
    not per se constitute willful misconduct.

    Willful misconduct will not be determinative unless it is the
    proximate cause of injury, disease or death.

    38 C.F.R. § 3.1(n) (2001).

[^2]: Under these rare circumstances, in the future a party wishing to
    appeal must ask the Veterans Court to enter an adverse final
    judgment, so that there is no doubt about the finality of the
    judgment. The Veterans Court may, of course, decline such a request
    for the entry of a final judgment, because it thinks that further
    development of the law or the facts is necessary for the court's
    review purposes. In that event, there will be no final judgment for
    purposes of our review.