United States Court of Appeals 

for the Federal Circuit 

__________________________ 

GINETTE J. EBEL, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7125 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 08-4130, Judge Frank Q. 

Nebeker. 

__________________________ 

Decided: March 21, 2012 

__________________________ 

PHILIP ANDREW RILEY, Finnegan, Henderson, 

Farabow, Garrett & Dunner, LLP, of Washington, DC, 

argued for claimant-appellant. With him on the brief 

were DORIS JOHNSON HINES and RONALD L. SMITH. 

MARTIN F. HOCKEY, JR. Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

respondent-appellee. With him on the brief were TONY 
EBEL v. DVA 2

WEST, Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and LAUREN A. WEEMAN, Trial Attorney. Of 

counsel on the brief were DAVID J. BARRANS, Deputy 

Assistant General Counsel, and RACHAEL T. SHENKMAN, 

Attorney, United States Department of Veterans Affairs, 

of Washington, DC. 

__________________________ 

Before PROST, SCHALL, and REYNA, Circuit Judges. 

PROST, Circuit Judge. 

Ginette J. Ebel appeals a decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”) to vacate and remand the decision of the Board of 

Veterans’ Appeals (“Board”) denying Mrs. Ebel’s claim for 

service connection on behalf of her deceased husband. 

Ebel v. Shinseki, No. 08-4130, 2011 WL 378851 (Vet. App. 

Feb. 7, 2011). Because the decision of the Veterans Court 

was not a final decision, we dismiss the appeal for lack of 

jurisdiction. 

BACKGROUND

Lowell A. Ebel (“the veteran”) served in the U.S. 

Army and then the U.S. Navy in the 1960s. Specifically, 

from February 1966 to February 1967 and from November 1968 to November 1969, Mr. Ebel served in Vietnam. 

The veteran was honorably discharged and subsequently 

received service connection compensation for arthritis and 

hearing loss. In November 1993, Mr. Ebel had a malignant melanoma surgically removed from his umbilicus. 

The malignant melanoma continued to spread and in 

October 1994, he died from respiratory arrest ultimately 

due to malignant melanoma. 
3 EBEL v. DVA

Mrs. Ebel, the surviving widow, filed an Application 

for Dependency and Indemnity Compensation (“DIC”), 

alleging that her husband’s death was service connected. 

Specifically, Mrs. Ebel argued that her husband’s malignant melanoma was the result of his exposure to Agent 

Orange and extensive sunlight while serving in Vietnam. 

In November 1994 and in May 1998, the Department of 

Veterans Affairs (“VA”) Regional Office (“RO”) denied 

Mrs. Ebel’s claim for service connection. 

In 2004, Mrs. Ebel filed the current claim for service 

connection and submitted an internet article discussing 

an Air Force study that found an elevated risk of melanoma in Air Force veterans who were exposed to Agent 

Orange. After the RO refused to reopen the claim, the 

Board reopened and remanded the claim, finding that the 

internet article constituted new and material evidence 

that needed to be considered in addition to the veteran’s 

medical records. 

On remand, a VA medical examiner reviewed the 

medical records on file, including those created during his 

period of service and leading up to Mr. Ebel’s death, and 

various articles regarding the correlation between melanoma and Vietnam veterans. In his April 2008 VA opinion (“examiner’s opinion”), the examiner determined that 

“[i]t is at least as likely as not . . . that the veteran’s 

melanoma was causally related to his active duty service, 

including exposure to herbicide agents and sunlight.” J.A. 

50. The RO again denied the claim, finding that “the 

examiner[‘s] opinion is unsubstantiated by the medical 

evidence of record” and otherwise there was “no evidence 

showing malignant melanoma manifest to a compensable 

degree within the one year presumptive period following 

discharge from service.” J.A. 43. Mrs. Ebel appealed. 
EBEL v. DVA 4

On October 21, 2008, the Board affirmed the RO’s denial. While the Board noted the various medical records 

documenting Mr. Ebel’s health from his time in service 

until his death in 1994, it based its decision on the relative weight of the examiner’s opinion as compared to 

various National Academy of Science (“NAS”) reports. It 

found that the “April 2008 opinion is certainly competent 

evidence of causation and must be considered,” but concluded that this one opinion was not entitled to more 

weight than the VA findings based on the NAS reports. 

J.A. 24-26. The Board reasoned that if “credible evidence 

for an association between a disorder and herbicide 

exposure was equal to or outweighed the evidence 

against, then by law [the] VA would be required to establish a presumption.” J.A. 26. Because no presumption 

could be established, the Board concluded that the medical opinion could not be sufficient to establish a service 

connection. 

On appeal, the Veterans Court vacated and remanded. It held that “the Board improperly weighed the 

VA [examiner’s] opinion providing a direct nexus against 

the NAS studies that pertain to whether a disease should 

be considered presumptively due to exposure to Agent 

Orange.” Ebel, 2011 WL 378851, at *3. Because the 

Board improperly weighed direct service connection 

evidence against presumptive service connection evidence, 

the Veterans Court found that the Board “did not adequately consider the evidence of record” and its “statement of reasons and bases [was] inadequate to facilitate 

review.” Id. at *3-4. The Veterans Court ordered the 

Board to properly consider the examiner’s opinion and 

other direct service connection evidence and to determine 

whether, in view of this evidence, equipoise exists warranting grant of direct service connection. Id. at *4. 
5 EBEL v. DVA

DISCUSSION

The threshold issue in this case is whether this court 

has jurisdiction over Mrs. Ebel’s appeal. Our jurisdiction 

to review decisions of the Veterans Court is governed by 

38 U.S.C. § 7292. Under § 7292, we have “exclusive 

jurisdiction to review and decide any challenge to the 

validity of any statute or regulation, or an interpretation 

thereof,” but, absent a constitutional issue, we cannot 

review factual determinations or challenges to the application of a law or regulation to facts. 38 U.S.C. § 7292(c)-

(d). 

Unlike statutes governing cases appealed from other 

tribunals, this provision does not explicitly premise 

appellate review on the finality of the Veterans Court’s 

decision. Compare 28 U.S.C. § 1295(a)(1) (conferring 

jurisdiction over “an appeal from a final decision of a 

district court”) with 38 U.S.C. § 7292(a) (“After a decision 

of the [Veterans Court] is entered in a case, any party to 

the case may obtain a review of the decision . . . .”). 

Nonetheless, we have “‘generally declined to review nonfinal orders of the Veterans Court.’” Joyce v. Nicholson, 

443 F.3d 845, 849 (Fed. Cir. 2006) (quoting Williams v. 

Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002)). This 

finality rule serves several purposes: it “promot[es] efficient judicial administration,” “emphasize[s] the deference that appellate courts owe to the trial judge,” and 

“reduces harassment of opponents and the clogging of the 

courts through successive appeals.” Williams, 275 F.3d at 

1364 (citing Firestone Tire & Rubber Co. v. Risjord, 449 

U.S. 368, 374 (1981)). 

Thus, we generally do not review the Veterans Court’s 

remand orders because they are not final decisions. 

Joyce, 443 F.3d at 849 (“We have repeatedly made clear 
EBEL v. DVA 6

that a decision by the [Veterans Court] remanding to the 

Board is non-final and not reviewable.”); Jones v. Nicholson, 431 F.3d 1353, 1357 (Fed. Cir. 2005); Williams, 275 

F.3d at 1363; Adams v. Principi, 256 F.3d 1318, 1321 

(Fed. Cir. 2001). We will depart from this strict rule of 

finality only when three conditions (the Williams conditions) are met: 

(1) [T]here 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., that the 

remand proceeding may moot the issue. 

Williams, 275 F.3d at 1364 (footnotes omitted); see

Mlechick v. Mansfield, 503 F.3d 1340, 1343 (Fed. Cir. 

2007); Joyce, 443 F.3d at 849; Jones, 431 F.3d at 1358. 

This exception to the finality rule is narrow. Jones, 431 

F.3d at 1358 & n.3 (noting that the Supreme Court has 

emphasized that departures from the finality rule should 

occur “‘only when observance of it would practically defeat 

the right to any review at all’” (quoting Flanagan v. 

United States, 465 U.S. 259, 263 (1984))); Conway v. 

Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (explaining 

that the Williams conditions are met only in rare circumstances); Adams, 256 F.3d at 1321 (noting that the finality rule should only give way in “unusual circumstances”). 
7 EBEL v. DVA

The remand order in this case does not meet the narrow exception articulated in Williams.1 Upon a close 

reading of the remand order, we do not find that the 

Veterans Court made a clear and final decision on a legal 

issue as necessary under the first Williams condition. 

Mrs. Ebel does not allege that the remand order misinterprets any statutory or regulatory language or misapplies 

binding case law.2 Rather, Mrs. Ebel alleges that the 

Veterans Court committed error by remanding and that it 

should have found that the examiner’s report was sufficient to establish direct service connection and reversed. 

This is not a legal issue over which we have jurisdiction 

but rather presents questions of fact and questions of law 

 1 If we were to hold otherwise, then virtually any 

petitioner would satisfy the Williams conditions by 

merely appealing a remand order and arguing that the 

petitioner was entitled to a reversal on the record. Such a 

holding would cause the allegedly narrow exception under 

Williams to swallow our strict rule of finality. 

2 Unlike the remand order here, prior remand orders in which we have found the first Williams condition 

satisfied involved the Veterans Court’s interpretation of 

statutes or regulations, or binding case law. See, e.g., 

Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275 (Fed. Cir. 

2009) (finding the clear and final decision was that 38 

U.S.C. § 5103(a) required the VA to provide a veteran 

with relevant criteria); Mlechick, 503 F.3d at 1343-44 

(holding that the clear and final legal decision was the 

Veterans Court’s interpretation of the rule of prejudicial 

error); Smith v. Nicholson, 451 F.3d 1344, 1348 (Fed. Cir. 

2006) (finding that the court’s interpretation of the regulations was a clear and final decision on a legal issue); 

Myore v. Principi, 323 F.3d 1347, 1351 (Fed. Cir. 2003) 

(finding that the Veterans Court’s interpretation of 

§§ 1310(a) and 1110 was a clear and final decision on a 

legal issue). 
EBEL v. DVA 8

applied to fact. 38 U.S.C. § 7292; see Cook v. Principi, 353 

F.3d 937, 941 (Fed. Cir. 2003). To evaluate the issue Mrs. 

Ebel appeals, first we would need to analyze the surrounding facts, such as whether the examiner’s opinion is 

the only evidence on record and is sufficient, standing 

alone, to establish a direct service connection; then, we 

would need to evaluate the remand decision for an abuse 

of discretion. See Appellant’s Br. 20-21 (asking this court 

to determine that Mrs. Ebel satisfied the requirements 

necessary to prove entitlement to DIC). Because the issue 

Mrs. Ebel raises is not a legal one, she does not satisfy the 

jurisdictional requirements for non-final orders articulated in Williams. To hold otherwise would lead to the 

odd result that an appeal could satisfy the first condition 

under Williams—that there was a clear and final decision 

of a legal issue—but not the jurisdictional statute limiting 

our jurisdiction to questions of law. 

Nevertheless, Mrs. Ebel argues that case law requires 

us to find that her challenge to the Veterans Court’s 

decision to remand satisfies the first Williams condition. 

While we have previously found that a decision to remand 

could constitute a clear and final legal decision satisfying 

the first Williams condition, this case is distinguishable. 

Unlike other cases, such as Byron v. Shinseki, where the 

Veterans Court explicitly analyzed its statutory authority 

and held that it did not have the authority to reverse and 

must remand, the court here made no such legal determination and Mrs. Ebel does not allege that any statute was 

violated. No. 2011-7170, slip op. (Fed. Cir. Feb. 17, 2012) 

(finding the first condition met where the Veterans Court 

decision analyzed case law to determine that reversal was 

precluded and remand was required); see Joyce, 443 F.3d 

at 849 (“We have repeatedly made clear that a decision by 

the [Veterans Court] remanding to the Board is non-final 

and not reviewable. . . . [unless] the remand action itself 
9 EBEL v. DVA

would independently violate the rights of the veteran, for 

example, where a remand would be barred by statute.”). 

Rather, the Veterans Court evaluated the Board’s factual 

determinations and remanded because the “Board did not 

adequately consider the evidence of record” such that the 

Board’s “statements of reasons and bases [were] inadequate to facilitate review.” Ebel, 2011 WL 378851, at *3-

4. The basis of this remand is most similar to that of 

Williams, where we held that the first condition was not 

met because “the [Veterans Court] has merely remanded 

for further consideration of the issues by the Board as a 

predicate to further review of those issues by the [Veterans Court].” 275 F.3d at 1365. Mrs. Ebel counters that 

her case is more analogous to Adams, a pre-Williams case 

in which we reviewed a non-final remand order. Yet, the 

decision in Adams is limited. According to the opinion, 

the case presented “unusual circumstances”—the veteran 

had already established entitlement to compensation 

based on a presumptive service connection and was 

arguing that because he had an established right to a 

favorable decision, the remand was prohibited. Adams

256 F.3d at 1321; see also Stevens v. Principi, 289 F.3d 

814, 817 (Fed. Cir. 2002) (finding the first condition met 

where the veteran presented similarly unusual circumstances). Mrs. Ebel’s appeal does not present these 

unusual circumstances. There was no finding that Mrs. 

Ebel has an entitlement to a finding of direct service 

connection3 and Mrs. Ebel does not allege that the re-

 3 On appeal, Mrs. Ebel has represented that the examiner’s opinion is the only evidence of direct service 

connection and thus entitlement is guaranteed. The 

record suggests otherwise. The Board’s decision describes 

various service records and personal medical records that 

are already in the record but were not considered when 

the Board weighed the evidence. See J.A. 22-24, 43. As 

the Secretary indicated during oral argument, in addition 
EBEL v. DVA 10

mand was for a prohibitive purpose or violated statutory 

authority. Thus, Mrs. Ebel has failed to identify a clear 

and final decision on a legal issue over which this court 

has jurisdiction and our case law is of no avail to her. 

In order for this court to have jurisdiction over a nonfinal remand order, each of the Williams conditions must 

be met. Because Mrs. Ebel has not met the first Williams

condition, we dismiss her appeal for lack of jurisdiction. 

DISMISSED 

 

to the examiner’s opinion, those records are pertinent to a 

direct service connection determination.