NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

GEORGE D. PREWITT, JR.,

Claimant-Appellant,

v.

 Eric K. Shinseki, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee.

______________________ 

2013-7005

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-0792, Judge Alan G. Lance, Sr.

______________________ 

Decided: March 18, 2013 

______________________ 

GEORGE D. PREWITT, JR., of Greenville, Mississippi, 

pro se. 

MELISSA M. DEVINE, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent-appellee. 

With her on the brief were STUART F. DELERY, Principal 

Deputy Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and MARTIN F. HOCKEY, JR., Assistant Director. 
2 GEORGE PREWITT v. SHINSEKI

Of counsel on the brief were DAVID J. BARRANS, Deputy 

Assistant General Counsel, and JOSHUA P. MAYER, Attorney, United States Department of Veterans Affairs, of 

Washington, DC. 

______________________ 

Before O'MALLEY, BRYSON, and REYNA, Circuit Judges.

BRYSON, Circuit Judge. 

George D. Prewitt appeals from the judgment of the 

Court of Appeals for Veterans Claims (“CAVC”), which 

rejected certain of his claims for benefits and remanded 

others to the Board of Veterans’ Appeals. Because the 

Board’s decision on one of Mr. Prewitt’s claims may have 

been based on improper treatment of Mr. Prewitt’s lay 

evidence, we reverse and remand for further proceedings 

on that claim. We otherwise affirm.

I 

Mr. Prewitt served on active duty in the United States 

Army from March 1968 to March 1970. While in combat, 

he suffered a gunshot wound to the neck. The Department of Veterans Affairs (“DVA”) granted him a 30 percent disability rating for the residual effects of the 

gunshot wound, including an injury to muscle group I and 

a spinal accessory nerve, excision of a neuroma, limitation 

of motion of the left shoulder, and atrophy of the trapezius 

muscle. In November 1976 and again in January 1980, 

Mr. Prewitt requested increased compensation, but both 

times the DVA determined his disability had not become 

more severe. Then, in June of 1980, the DVA increased 

Mr. Prewitt’s disability rating from the gunshot wound to 

40 percent due to his demonstrated limitation of motion. 

In addition, the DVA granted a 10 percent rating for a 

service-related tender neck scar and injury to cranial 

nerve V. In September 2002, Mr. Prewitt again requested 

an increased rating for the gunshot wound. He underwent a DVA examination in February 2003, and the DVA 
 GEORGE PREWITT v. SHINSEKI 3

granted him a 20 percent rating for impairment of cranial 

nerve XI. 

In February 2005, Mr. Prewitt received medical attention for atrial fibrillation. DVA physicians diagnosed him 

with hyperthyroidism and recommended treatment. Mr. 

Prewitt then requested that the DVA grant service connection for hyperthyroidism and atrial fibrillation secondary to hyperthyroidism. He also sought service 

connection for tinnitus, hypertension, and alleged injuries 

to cranial nerves II, III, and X; in addition, he claimed 

that he had “never received any compensation for injury 

to the fifth cranial nerve.” Finally, Mr. Prewitt sought a 

total disability rating based on individual unemployability, but he asked that that claim be held in abeyance 

while he attempted to return to work.

Mr. Prewitt underwent a DVA medical examination in 

October 2005 that found “no evidence for injury to cranial 

nerves 2 and 3,” and “no clinical evidence for injury” to 

cranial nerve X. The examining DVA physician also 

found that Mr. Prewitt’s already diagnosed injuries to 

cranial nerves V and XI were “likely to be static since his 

neurological exam in 1980.” Following another examination, the examining physician concluded that Mr. 

Prewitt’s hyperthyroidism was not caused by the gunshot 

wound he sustained in service and that, although an 

abnormal result on a thyroid test administered in 2001 

should have led to an earlier diagnosis of Mr. Prewitt’s 

hyperthyroid condition, the delay in diagnosis did not 

result in any permanent disability.

The DVA then issued a decision in December 2005 

denying service connection for tinnitus, atrial fibrillation, 

hyperthyroidism, injury to cranial nerves II, III, and X, 

and glomerulonephritis with arterial hypertension. Mr. 

Prewitt did not appear for a scheduled DVA medical 

examination in May 2007, claiming lack of transportation, 

but he stated in June of that year that the examination 
4 GEORGE PREWITT v. SHINSEKI

was not necessary because it “would not be probative of 

whether there had been a clear and unmistakable error” 

in the DVA’s 1970 evaluation. In March 2008 the DVA 

denied service connection for hypertension as well. Mr. 

Prewitt appealed those decisions to the Board. 

On December 29, 2009, the Board upheld the denial of 

service connection for tinnitus, hyperthyroidism, atrial 

fibrillation, and injuries to cranial nerves II, III, and X. It 

remanded Mr. Prewitt’s claim for service connection for 

hypertension to obtain a DVA medical opinion. In evaluating Mr. Prewitt’s hyperthyroid condition for possible 

service connection, the Board found no evidence of, or 

reference to, that condition in Mr. Prewitt’s service medical records. The Board also denied Mr. Prewitt’s claims of 

CUE in the DVA’s rating decisions regarding cranial 

nerves V and XI and in its 1970 finding of lack of service 

connection for cranial nerves II, III, and X. 

Mr. Prewitt appealed the Board’s decision to the 

CAVC. The court held that it lacked jurisdiction to entertain Mr. Prewitt’s service connection claim for hypertension because the Board had remanded that claim to the 

regional office. In reciting the case’s procedural history, 

the CAVC stated that in June 2006 Mr. Prewitt notified 

the DVA that he waived any appeal regarding his injury 

to cranial nerve V. Nevertheless, the court remanded Mr. 

Prewitt’s claim “regarding any of [his] assignments of 

CUE”—including for cranial nerve V—because the record 

was uncertain as to whether the regional office had considered it in the first instance. As to Mr. Prewitt’s hyperthyroidism and atrial fibrillation claims, the CAVC 

affirmed the finding of no service connection. The court 

noted that the only potential evidence supporting Mr. 

Prewitt’s claim for service connection regarding hyperthyroidism was that one of his handwritten service records 

contained an illegible term. Although the court noted 

that the term might be “hyperthyroidism,” it concluded 

that the term more likely referred to the neuroma that 
 GEORGE PREWITT v. SHINSEKI 5

had been surgically excised and the related hyperesthesia 

that he complained of at the time. 

The CAVC also examined Mr. Prewitt’s medical records and determined there was no evidence of any injury 

to cranial nerves II, III, and X. The court held that the 

Board had properly relied on the results of the medical 

evaluations in 1980 and 2005, which found no clinical 

evidence of injuries to those cranial nerves.1 With respect 

to Mr. Prewitt’s allegations that the DVA had failed to 

assist him in obtaining all of his service medical records, 

the court held that Mr. Prewitt had failed to raise that 

issue in a timely manner and that it was not reasonably 

raised by the record. Moreover, the court ruled, Mr. 

Prewitt had failed to point to any basis for believing the 

service records that had been produced were incomplete.

The court further held that the Board did not err by 

denying service connection for his tinnitus. It ruled that 

Mr. Prewitt was incompetent to provide lay testimony 

concerning the cause of his condition, and that, because 

he had failed to attend a DVA medical examination 

without good cause, the DVA was required to rest its 

decision on the existing evidence under 38 C.F.R. 

§ 3.655(b).

Finally, the court held that the DVA did not commit 

CUE in denying service connection for hyperthyroidism. 

The court agreed with the Board’s determination that Mr. 

Prewitt “suffered no permanent disability from VA’s 

failure to diagnose his hyperthyroidism in 2001.” Once 

the CAVC’s decision became final, Mr. Prewitt appealed 

to this court.

1 Mr. Prewitt referred to those nerves as “muscle 

groups,” but the CAVC correctly noted that his argument 

was directed to the cranial nerves.

 
6 GEORGE PREWITT v. SHINSEKI

II

At the outset, we must determine whether the 

CAVC’s ruling constitutes a final order over which we 

may exercise jurisdiction even though the CAVC remanded certain of Mr. Prewitt’s claims to the Board. 

This court may not review the CAVC’s treatment of 

the CUE and hypertension issues, because the court’s 

decisions as to those issues are not final. We have repeatedly made clear that “a decision by the Court of Appeals 

for Veterans Claims remanding to the Board is non-final 

and not reviewable” unless “the remand action itself 

would independently violate the rights of the veteran.” 

Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006). 

The CAVC’s remand order did not address Mr. Prewitt’s 

CUE and hypertension claims, but simply permitted the 

Board and the regional office to engage in further development of those claims. The court’s decision does not 

deprive Mr. Prewitt of any right or opportunity to have 

those claims reviewed if he is not satisfied with the later 

decisions of the regional office or the Board.2 

Mr. Prewitt contends that the court erred by finding 

that he had waived his CUE claim regarding cranial 

nerve V. However, the CAVC made no such ruling; instead, it remanded his CUE claim for further development. Going forward, the court directed the Board to 

consider any additional argument or evidence submitted 

in connection with that claim. 

The fact that the remand decisions are non-final, 

however, does not require us to dismiss Mr. Prewitt’s 

appeal entirely. “This court has consistently recognized 

2 We also agree that any of Mr. Prewitt’s claims that 

are directed to various muscle groups were not presented 

to the Board and therefore were not before the CAVC.

 
 GEORGE PREWITT v. SHINSEKI 7

that the various claims of a veteran’s overall ‘case’ may be 

treated as distinct for jurisdictional purposes.” Elkins v. 

Gober, 229 F.3d 1369, 1374 (Fed. Cir. 2000). Because the 

issues Mr. Prewitt appeals are not so “intertwined” that 

deciding the claims before us would “disrupt the orderly 

process of adjudication,” we are authorized to entertain 

his appeal from the court’s decision as to those claims for 

which the court’s ruling is final. Id. at 1376. 

In addition, Mr. Prewitt has failed to dispute the 

CAVC’s ruling regarding his rating for cranial nerves II, 

III, and X; we therefore affirm those rulings. He does 

challenge several of the CAVC’s other holdings, however, 

and we now discuss each of those arguments.

1. TINNITUS

The Board and the CAVC held that Mr. Prewitt’s lay 

testimony as to whether his tinnitus had an in-service 

cause was incompetent and that his tinnitus claim had to 

be denied because it was not supported by competent 

medical evidence on that issue. 

Section 1154(a) of Title 38 requires the DVA to give 

“due consideration” to “all pertinent medical and lay 

evidence” when it evaluates a claim for disability benefits. 

In Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 

2009), we rejected the DVA’s position that “competent 

medical evidence” is required whenever the issue involves 

“either medical etiology or a medical diagnosis.” In that 

case, we held that a veteran’s wife was competent to 

testify that her husband had committed suicide as a 

result of a mental disorder related to his military service. 

Id.; see Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 

(Fed. Cir. 2006) (vacating a CAVC decision because it 

“failed to consider whether the lay statements presented 

sufficient evidence of the etiology of [the veteran’s] disability”); see generally Jandreau v. Nicholson, 492 F.3d 

1372, 1376-77 (Fed. Cir. 2007). 
8 GEORGE PREWITT v. SHINSEKI

The government argues that the CAVC simply affirmed the Board’s fact-specific determination that Mr. 

Prewitt’s lay evidence was incompetent in this particular 

case. But the Board’s ruling is not clear in that regard. 

The Board stated that, although Mr. Prewitt was “competent to establish the presence of the disability,” he was 

not competent to testify as to causation, i.e., whether that 

condition had its origin in service. The Board concluded 

by stating that where, as in this case, “the determinative 

questions involve a nexus or causation, where a lay assertion on medical causation is not competent evidence, . . . competent medical evidence is required to 

substantiate the claim.” The CAVC upheld the Board’s 

ruling on this point, stating that Mr. Prewitt “did not 

have the specialized training necessary to provide an 

etiology opinion as to causation of his tinnitus.”

The government acknowledges that the Board’s discussion of this issue “perhaps lacks clarity,” and it suggests that if this court should find the Board’s 

“statements on this point so unclear as to permit an 

inference that the [B]oard categorically excluded the 

potential relevance of lay testimony” as to causation, the 

court “could remand the tinnitus claim for clarification 

and, if necessary, more specific findings as to the competence and sufficiency of Mr. Prewitt’s lay opinion.”

Upon consideration of the governing case law and the 

record in this case, we believe that a remand for those 

purposes is appropriate. To the extent that the Board 

concludes, as a factual matter, that Mr. Prewitt’s lay 

testimony is not sufficient to satisfy his burden of showing 

service connection for his tinnitus, that is a factual determination that is not within our jurisdiction to review. 

But to the extent that the Board was applying, and the 

CAVC was upholding, a broader rule that lay evidence is 

incompetent and therefore inadmissible on the issue of inservice causation for a condition that manifests itself after 
 GEORGE PREWITT v. SHINSEKI 9

the veteran has left the service, that rule is inconsistent 

with section 1154 as we have construed it.

2. HYPERTHYROIDISM AND ATRIAL FIBRILLATION

Mr. Prewitt next argues that the CAVC erred in denying service connection for hyperthyroidism and atrial 

fibrillation because it misinterpreted the requirement of 

38 U.S.C. § 5107(b) that the DVA give the veteran claimant the “benefit of the doubt.” But the CAVC and the 

Board did not construe section 5107(b) at all. Mr. 

Prewitt’s real complaint is that the CAVC did not apply 

that provision to his case. Section 5107(b), however, 

applies only “[w]hen there is an approximate balance of 

positive and negative evidence.” In this case, the CAVC 

held that the facts weighed against a finding of service 

connection. It reasoned that the ambiguous word in Mr. 

Prewitt’s service medical records was likely “hyperesthesia,” not “hyperthyroidism,” because the former term 

“makes much more sense” in context. The mere presence 

of an ambiguous term in a service record does not legally 

require the CAVC to apply section 5107(b).3

3 In his reply brief, Mr. Prewitt alludes to the provision in 38 U.S.C. § 1154(b) requiring that “every reasonable doubt” regarding service connection be resolved in a 

combat veteran’s favor. Mr. Prewitt failed to make that 

argument in his opening brief, however, and he has 

therefore waived it. SmithKline Beecham Corp. v. Apotex 

Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006). In any event, 

the “every reasonable doubt” rule in section 1154(b) 

applies to the question whether the combat veteran 

incurred an injury or disease during service, not to 

whether there is a nexus between the in-service event and 

a condition that manifested itself later. Davidson, 581 

F.3d at 1315. 

As for Mr. Prewitt’s argument that the CAVC improperly discounted a medical article that he cited in support 

 
10 GEORGE PREWITT v. SHINSEKI

Contrary to Mr. Prewitt’s argument, the CAVC did 

not engage in improper de novo factfinding in making its 

ruling. It simply affirmed the Board’s decision, on the 

same record, finding a lack of service connection for 

hyperthyroidism. Likewise, the court did not rely on its 

observation that Mr. Prewitt refused certain medicines 

and left a VA hospital against medical advice. The recitation of those facts served only as background to the 

CAVC’s decision and therefore do not provide a basis for 

reversing the court’s judgment. 

3. FAILURE TO ASSIST

Mr. Prewitt claims that the Secretary failed in his duty to assist because the DVA issued several medical 

opinions regarding his disability even though Mr. Prewitt 

was not given a physical examination. The Secretary, 

however, is obligated to provide “a medical examination or 

. . . a medical opinion” only “when such an examination or 

opinion is necessary to make a decision on the claim.” 38 

U.S.C. § 5103A. Mr. Prewitt has pointed to no reason to 

conclude that the multiple DVA medical opinions he 

received were insufficient to resolve his claims, and we 

lack jurisdiction to review the Secretary’s determination 

that a physical examination was not necessary to an 

accurate resolution of his case.

4. DUE PROCESS

Mr. Prewitt points to two alleged due process violations in the handling of his case. He first argues that the 

DVA altered or ignored portions of his service medical 

records that supported his disability claims and that the 

CAVC improperly engaged in de novo factfinding in 

determining that no files were missing from his records. 

But the CAVC simply held that Mr. Prewitt had failed to 

of his service connection claim, we lack jurisdiction to 

review that fact-based ruling. 38 U.S.C. § 7292(d)(2).

 
 GEORGE PREWITT v. SHINSEKI 11

provide a basis to conclude that some records were missing. It did not engage in de novo factfinding.

More importantly, the CAVC properly held that Mr. 

Prewitt had waived his service-records argument by not 

raising it before the Board. See Maggitt v. West, 202 F.3d 

1370, 1378 (Fed. Cir. 2000) (holding that “the Veterans 

Court is uniquely positioned to balance and decide the 

considerations regarding exhaustion in a particular 

case”). Mr. Prewitt argues that the CAVC’s finding of 

waiver is itself an instance of improper de novo factfinding, but that contention is plainly incorrect. The CAVC 

merely reviewed the arguments presented to the Board; 

the court did not add any factual determinations to the 

record. To the extent Mr. Prewitt complains that the 

Board never made factual findings about the completeness of his service records, the reason for the Board’s 

failure to do so is that Mr. Prewitt did not raise that 

argument before the Board.

Mr. Prewitt’s other due process contention is that the 

CAVC struck his timely filed reply brief and required him 

to refile his principal brief. The CAVC, however, “has 

broad discretion to interpret and apply its Rules of Practice and Procedure,” Bastien v. Shinseki, 599 F.3d 1301, 

1307 (Fed. Cir. 2010), and Mr. Prewitt has not provided 

any reason to believe that the CAVC abused that discretion in applying its rules in this case. Moreover, the 

record indicates that the CAVC ultimately permitted Mr. 

Prewitt to file his principal brief and reply brief, so it is 

unclear what prejudice he claims to have suffered as a 

result of the orders to which he objects. Accordingly, we 

reject his due process claims as groundless.

No costs.

AFFIRMED in part, REVERSED in part, and 

REMANDED