United States Court of Appeals 

for the Federal Circuit ______________________ 

RONALD G. DELOACH,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee. 

______________________ 

2011-7147

______________________ 

 Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 08-2532, Judge Frank Q. 

Nebeker. 

- - - - - - - - - - - - - - - - - - - - - -

WILLIAM H. GREENE, 

Claimant-Appellant,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee. 

______________________ 

2011-7166

______________________ 
2 DELOACH v. SHINSEKI

 Appeal from the United States Court of Appeals for 

Veterans Claims in case no. 09-3013, Judge Mary J. 

Schoelen. 

______________________ 

Decided: January 30, 2013 

______________________ 

IGOR V. TIMOFEYEV, Paul Hastings LLP, of Washington, DC, argued for claimant-appellants in both appeals. 

With him on the briefs was STEPHEN B. KINNAIRD. Of 

counsel on the brief were BARTON F. STICHMAN; and LOUIS 

J. GEORGE, National Veterans Legal Services Program, of 

Washington, DC. 

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

Department of Justice, of Washington, DC, argued for the 

respondent-appellee in both appeals. With him on the 

brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and MEREDYTH COHEN 

HAVASY, Trial Attorney. Of counsel on the brief were 

DAVID J. BARRANS, Deputy Assistant General Counsel, 

and JONATHAN TAYLOR, Attorney, United States Department of Veterans Affairs, of Washington, DC in appeal no. 

2011-7147. 

J. WILLIAM KOEGEL, JR., Steptoe & Johnson, LLP, of 

Washington, DC, for amici curiae in both appeals, Military Order of the Purple Heart, et al. 

______________________ 
 DELOACH v. SHINSEKI 3

Before NEWMAN, PROST, and REYNA, Circuit Judges. 

REYNA, Circuit Judge.

In these consolidated appeals, the veterans claim that 

their current disabilities are connected to injuries sustained during their military service. In both cases, the 

veterans’ medical records contained at least one physician’s report opining that the claimed disabilities were 

service-connected and at least one ambiguous or inconclusive report declining to confirm such a nexus. The Department of Veterans Affairs (“VA”) relied upon these 

latter medical opinions in denying the veterans entitlement to service-connected disability benefits, and the 

Board of Veterans’ Appeals (“Board”) affirmed. Finding 

that the medical examination did not comply with the 

Board’s instructions and that the Board failed to explain 

its reasons and bases for denying service connection, the 

U.S. Court of Appeals for Veterans Claims remanded. 

Deloach v. Shinseki, No. 09-4505, 2011 U.S. App. Vet. 

Claims LEXIS 512, at *1 (Vet. App. April 29, 2011); 

Greene v. Shinseki, No. 09-3013, 2011 U.S. App. Vet. 

Claims LEXIS 873, at *1 (Vet. App. April 26, 2011). 

Specifically, the Court of Appeals for Veterans Claims 

held that remand, rather than reversal, was the appropriate remedy where the Board’s decision lacks an adequate statement for its bases, or where the evidence of the 

record is inadequate.

For the reasons outlined below, we agree the remand 

was appropriate and affirm. 

I. BACKGROUND

A. RONALD G. DELOACH

Ronald G. Deloach served as a Neuropsychiatric Specialist in the Army from 1969 to 1971. He was tasked 

with restraining, treating, and counseling fellow soldiers 
4 DELOACH v. SHINSEKI

returning from the combat zone. In 1974, Mr. Deloach 

was hospitalized and diagnosed with catatonic schizophrenia. In connection with several additional hospitalizations between 1974 and 1978, he was diagnosed with 

schizophrenic reaction of chronic, paranoid type as well as 

anxiety and depression. 

Mr. Deloach filed a disability claim for service connection with respect to schizophrenia, depression, and PTSD 

in December 2001. In June 2002, the Veterans Affairs 

Regional Office (“VARO”) found nothing linking a mental 

condition to military service and, therefore, denied Mr. 

Deloach entitlement to service connection. 

In November 2002, Mr. Deloach timely filed a Notice 

of Disagreement with the VARO’s denial and requested 

that the VA review his claim. The VA issued a Statement 

of the Case in December 2002, which reaffirmed the 

denial. Mr. Deloach appealed to the Board. 

In its review, the Board considered medical records 

from Mr. Deloach’s private treating physician, Dr. Linda 

Jenness-McClellan. In a January 2004 letter, Dr. Jenness-McClellan concluded that Mr. Deloach had significant depression and symptoms characteristic of PTSD and 

that “[Mr. Deloach’s] presentation and report strongly 

indicates that his initial schizophrenic break resulted 

from stress encountered as a psychiatric technician caring 

for maimed psychiatric veteran returnees from Vietnam.” 

Deloach Joint App’x at 946. 

In September 2004, the Board remanded the case to 

the VARO with instructions that Mr. Deloach undergo 

further psychiatric evaluation by a VA physician for a 

diagnosis of all his psychiatric disabilities. Additionally, 

the Board requested that the examination report include 

an opinion on the etiology of each disability diagnosis. 
 DELOACH v. SHINSEKI 5

In April 2005, the VA again issued a Statement of the 

Case denying Mr. Deloach entitlement to service connection. The VA considered new evidence provided by the VA 

examiner Dr. Lanette Atkins. The VA noted Dr. Atkins’ 

diagnosis of chronic schizophrenia and that her findings 

of evidence of psychosis as early as 1974 were consistent 

with Dr. Jenness-McClellan’s opinion. Finding that 

evidence demonstrated development of a mental disorder 

more than one year after Mr. Deloach’s discharge from 

active duty in 1971, Dr. Atkins could not confirm a service 

connection without speculating. 

Mr. Deloach again appealed the VA’s decision to the 

Board. In April 2006, the Board declined to make a 

service connection decision based on the evidence of 

record and remanded to the VARO for further development. The Board explained that the VA examiner failed 

to comply with remand instructions to provide an opinion 

on the etiology of Mr. Deloach’s disability diagnosis. 

Furthermore, the Board found no discussion in the examiner’s report as to whether Mr. Deloach satisfied the 

criteria for a PTSD diagnosis. 

In May 2007, in accordance with the Board’s remand 

instructions, the VA provided another evaluation of Mr.

Deloach’s mental condition. Another VA examiner, Dr. 

Monica Wright, offered a primary diagnosis of psychosis, 

but found that Mr. Deloach did not meet the criteria for 

symptoms of PTSD. In September 2007, the VA issued a 

Deferred Rating Decision notifying Dr. Wright that her 

examination failed to discuss the etiology of Mr. Deloach’s 

diagnosis and did not comply with the Board’s instructions. Dr. Wright submitted a follow-up report addressing 

the question of etiology in November 2007. Her report 

indicated that the history of Mr. Deloach’s illness during 

his military service is unclear due to a scarcity of available service medical records. Dr. Wright concluded that: 
6 DELOACH v. SHINSEKI

There is not presently a way to address the etiology of [Mr. Deloach’s] disorder. According to the 

sixth edition of Kaplan and Sadock’s Synopsis of 

Psychiatry post-1991, there is a direct quote that 

says, “The cause or etiology of schizophrenia is not 

known.” Therefore, I cannot address it, and to do 

so would result in mere speculation on my part.

Deloach Joint App’x at 1454. As a result, the VA issued a 

Statement of the Case in December 2007 which denied 

entitlement to service connection. The VA pointed to Dr. 

Wright’s opinion that etiology was indeterminable at the 

time of her examination and concluded that the evidence 

of record does not provide sufficient connection between

Mr. Deloach’s schizophrenia and his military service. Mr. 

Deloach appealed the VA’s decision to the Board for a 

third time. 

In May 2008, the Board affirmed the VA’s decision, 

which Mr. Deloach then appealed to the Court of Appeals 

for Veterans Claims. Mr. Deloach argued that the Board 

erred in denying his claim of entitlement to service connection for his mental disability and urged the court to 

reverse the Board’s decision under the “clearly erroneous” 

standard. Specifically, Mr. Deloach asserted that reversal 

is appropriate because the Board’s decision is “clearly 

erroneous in light of the uncontroverted evidence in [his]

favor.” 

The Court of Appeals for Veterans Claims held that 

reversal was not appropriate under the clearly erroneous 

standard because such a reversal would require the court 

to analyze the opinions of Dr. Jenness-McClellan and Dr. 

Atkins in the first instance. Instead, the court ruled that 

a remand was required because it was unclear whether 

the Board adequately considered all evidence in its evaluation, including the records of Dr. Jenness-McClellan, and 

provided a sufficient reason for denial of service connec-
 DELOACH v. SHINSEKI 7

tion. The Court of Appeals for Veterans Claims stated 

that “the lack of an adequate statement of reasons or 

bases frustrates judicial review, and the failure to provide 

an adequate medical examination involves factual development.” Deloach, 2011 U.S. App. Vet. Claims LEXIS 

512, at *8. The court observed that the Board did not 

comply with its remand instructions to ensure that the 

medical examination met instructions outlined by the 

Board; specifically, acquiring an opinion on the etiology of 

Mr. Deloach’s mental condition. The Court of Appeals for 

Veterans Claims concluded that remand was required to 

provide an adequate medical examination. 

B. WILLIAM H. GREENE

Mr. Greene served on active duty from February 6, 

1979 to February 5, 1983. During his station at Fort 

Hood in 1982, Mr. Greene injured his left foot while 

playing football. That year, a physician treated him for a 

“foot injury” and diagnosed his injury as a sprain. Mr. 

Greene reported ongoing pain, “swollen or painful joints,” 

and “foot trouble” in his separation medical examination. 

In December 2002, Dr. Edward A. Carrillo, a private 

physician had opined that Mr. Greene’s foot injuries were 

connected to military service. Similarly, in December 

2004, Dr. Richard DiBacco, another private physician,

rendered an opinion that Mr. Greene’s foot disability was 

a causal result of the original injury at Fort Hood. 

Mr. Greene filed a claim for service connection with 

respect to a bilateral foot condition in January 2001. The 

VARO denied Mr. Greene’s claim for service connection, 

stating that evidence shows the condition existed prior to 

service. Next, Mr. Greene submitted a Statement in 

Support of Claim requesting that his claim for serviceconnected compensation be reopened based on the medical 
8 DELOACH v. SHINSEKI

nexus provided by Dr. Carrillo. In the pertinent part, Dr. 

Carrillo’s report stated that:

After reviewing his military records it was noted 

that Mr. Greene was seen on base for left foot pain 

in October of 1982 . . . . Military service duties included activities such as marching, hiking, and 

other duties that involve the feet . . . . It is of my 

opinion that Mr. Greene’s left foot problem is military service related since the problem began while 

in the military and in the performance of the usual military service activities.

Greene Joint App’x at 403.

In August 2003, the VARO again denied Mr. Greene’s 

claim for service connection on the grounds that recent 

evidence submitted, including Dr. Carrillo’s medical

report, was not new material. Mr. Greene filed another 

Statement in Support of Claim in November 2003, requesting review and reconsideration of Dr. Carrillo’s 

opinion, and adding a claim for a secondary knee injury 

resulting from the foot injury.

In April 2004, the VARO denied service connection. 

Mr. Greene appealed to Board on May 6, 2005. The Board 

remanded to the VARO twice on August 2007 and November 2008 with instructions to provide Mr. Greene an 

examination and opinion addressing the nature and 

etiology of his foot disability. 

In December 2008, a VA Compensation & Pension examination (“C&P exam”) diagnosed residuals of a left 

ankle sprain with pain and limited motion and reported 

that the onset of the injury was November 1982 at Fort 

Hood. Yet the C&P exam concluded that the injury was

“at least as likely as not less than 50/50 the cause of 

current symptomatology of left foot and ankle pain.” 

Greene Joint App’x at A669–70. Based on evidence from 
 DELOACH v. SHINSEKI 9

the C&P exam, the VARO continued its denial of Mr. 

Greene’s claim because his “left ankle sprain . . . is less 

likely than not the cause of [his] current left foot problems.” Greene Joint App’x at 685. 

Mr. Greene appealed to the Board which, in June 

2009, considered his claim for the third time. The Board

found that the private physicians’ opinions—from Drs. 

Carrillo and DiBacco—in favor of service connection less 

probative than the C&P examiner’s opinion, which, according to the Board’s interpretation, did not support 

service connection. The Board discredited the private 

physicians’ opinions because they allegedly did not review 

the entire claim file, did not address a years-long symptomatology gap, and did not discuss relevant facts in the 

case. In contrast, the Board found the C&P examiner’s

opinion probative because it reviewed all the evidence and 

offered a thorough rationale for its opinion that was 

supported by the record. The Board found that the preponderance of the evidence was against awarding service 

connection and, therefore, denied Mr. Greene’s claim. 

Mr. Greene appealed to the Court of Appeals for Veterans Claims, which issued an opinion in April 2011 

vacating the Board’s denial and remanding the case for 

additional development. It determined that the Board’s 

decision to attribute less weight to the private physicians’

opinions and more probative value to the C&P exam was 

based on findings that were (1) inadequate and (2) either 

erroneous or unclear. In addition, the court noted that 

the Board ignored internal inconsistencies in the C&P 

examiner’s report and failed to provide an adequate 

statement of reasons and bases for why it found that 

report more probative. In light of the incomplete record 

resulting from the Board’s inadequate findings, the Court 

of Appeals for Veterans Claims held that reversal was not 
10 DELOACH v. SHINSEKI

appropriate. Instead, it remanded the matter to the 

Board. 

These appeals of the remand orders followed. We 

have jurisdiction pursuant to 38 U.S.C. § 7292(a), (c). 

II. ANALYSIS

A. JURISDICTION

The Secretary argues that this court lacks jurisdiction to review the decisions remanding Mr. Deloach’s 

and Mr. Greene’s cases to the Board. Generally, we 

decline to review remand orders of the Court of Appeals 

for Veterans Claims because they are viewed as non-final 

decisions. See Ebel v. Shinseki, 673 F.3d 1337, 1340 (Fed. 

Cir. 2012); Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. 

Cir. 2006); Williams v. Principi, 275 F.3d 1361, 1363 (Fed. 

Cir. 2002). But see Byron v. Shinseki, 670 F.3d 1202, 1204 

(Fed. Cir. 2012); Stevens v. Principi, 289 F.3d 814, 817 

(Fed. Cir. 2002); Adams v. Principi, 256 F.3d 1318, 1320 

(Fed. Cir. 2001). Unlike statutes governing cases appealed from other tribunals, the jurisdictional statute 

implicated by these appeals does not explicitly premise 

appellate review on the finality of the decision. Compare

28 U.S.C. § 1295(a)(1) (2006) (conferring jurisdiction over 

“an appeal from a final decision of a district court”), with

38 U.S.C. § 7292(a) (2006) (“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 . . . .”). Thus, we have recognized a narrow 

exception and depart from the strict finality rule only 

when three conditions, termed 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 
 DELOACH v. SHINSEKI 11

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). 

While apparently conceding that the appeals of Mr. 

Deloach and Mr. Greene require resolution of issues that 

adversely affect the appellants (the second Williams

condition), the Secretary contends that neither appeal 

presents a final decision on a legal issue or a substantial 

risk that the decision would not survive a remand. Those 

contentions, however, reflect a misunderstanding of the 

legal issue appellants have pressed on their appeals. 

Appellants do not assert that the Court of Appeals for 

Veterans Claims misinterpreted its standard of review 

when it determined that initial fact finding by the Board 

was required or that the Board failed to properly explain 

why it rejected certain evidence and favored other evidence. Rather, the Appellants maintain that they are 

legally entitled to a reversal on the record, and should not 

be required to undergo a remand. 

This case involves the same legal issue presented in

three cases where we had jurisdiction, Adams, Stevens, 

and Byron: whether the Court of Appeals for Veterans 

Claims has authority to reverse the Board instead of

remanding the case. As in Bryon, where the Court of 

Appeals for Veterans Claims explicitly analyzed its statutory authority and held that it did not have the authority 

to reverse and must remand, the court in the instant 

appeals held that reversal would be impermissible or not 

appropriate notwithstanding Appellants’ contentions that 

the record required reversal rather than remand. Compare Byron v. Shinseki, No. 09-4634, 2011 U.S. App. Vet. 
12 DELOACH v. SHINSEKI

Claims LEXIS 1293, at *17 (Vet. App. Jun. 20, 2011) 

(“The Court will not address whether direct service connection and an earlier effective date are warranted because that would require it to make factual 

determinations in the first instance based on the evidence 

the Board failed to consider, which it may not do. Therefore, reversal is precluded as a remedy, and remand is 

appropriate.” (citations omitted)), with Deloach, 2011 U.S. 

App. Vet. Claims LEXIS 512, at *7–8 (“To reverse the 

Board’s decision as the appellant requests would require 

the Court to analyze the opinions of Drs. JennessMcClellan and Atkins in the first instance and to weigh 

those opinions against the other evidence of record. 

Because the Court is generally prohibited from finding 

facts in the first instance, this would be impermissible.” 

(citations omitted)), and Greene, 2011 U.S. App. Vet. 

Claims LEXIS 873, at *13 (“Although, the appellant asks 

this Court to reverse the Board’s erroneous findings and 

order the award of service connection, such a request is 

not appropriate in this case. The Court, therefore, will 

remand this matter to the Board.” (citations omitted)). 

Similarly, Stevens involved a situation where the Court of 

Appeals for Veterans Claims ordered remand for an 

alleged prohibited purpose—to allow the government to 

make up a shortfall in its evidence to rebut a presumptive 

entitlement to compensation. 289 F.3d at 817. Likewise, 

a clear and final decision on a legal issue existed in Adams when the appellant argued that the Court of Appeals 

for Veterans Claims should have ruled, without a remand, 

that the government offered insufficient evidence to rebut 

the presumption of sound condition. 256 F.3d at 1321. 

All of these cases, like the ones pressed by Appellants, 

implicate a legal right not to be subjected to a remand, 

which if reversed by this court, would render the remand 

proceedings unnecessary.
 DELOACH v. SHINSEKI 13

These cases are readily distinguished from Ebel where 

the Court of Appeals for Veterans Claims remanded when

it found the examiner’s report insufficient to establish 

direct service connection. See 673 F.3d at 1341. The 

court in the instant appeals, as in Byron, explicitly held 

that it did not have authority to reverse. The court in 

Ebel simply remanded without addressing whether it had 

authority to remand. See Ebel v. Shinseki, No. 08-4130, 

2011 U.S. App. Vet. Claims LEXIS 250, at *6, 10–11 (Vet. 

App. Feb. 7, 2011). It follows that while the decision in 

Byron and these appeals was final as to the issue of the 

court’s lack of authority to reverse, Ebel did not present a 

clear and final decision on that legal issue as required 

under the first Williams condition. Thus, while the first 

Williams condition was not satisfied in Ebel, it is satisfied 

in the instant appeals.1

These cases present an even more compelling circumstance for an immediate review than Byron. The Board 

on remand in Byron still had to address whether the 

appellant had established a direct service connection, and 

if so, whether she was entitled to an earlier effective date. 

Byron, 2011 U.S. App. Vet. Claims LEXIS 1293, at *17. 

1 To be clear, these appeals meet the narrow exception to finality enunciated in Williams exclusively on the 

rationale articulated in Byron; that is, after addressing 

the matter, the CAVC determined that it lacked authority 

to reverse the Board rather than remand the case. Byron, 

670 F.3d at 1205 (“[T]his is one of the rare circumstances 

where review of a remand order is proper.”). It remains 

true that appellants cannot satisfy the Williams conditions by merely appealing a remand order and arguing 

that the petitioner was entitled to a reversal on the record. Ebel, 673 F.3d at 1341 n.1. Otherwise, the narrow 

exception under Williams would swallow the strict rule of 

finality. Id.

 
14 DELOACH v. SHINSEKI

Notwithstanding the remaining issues that could only be 

addressed on remand, this court held that jurisdiction 

was proper in Byron. 670 F.3d at 1205. Appellants in the 

instant cases alleged that the Board clearly erred in not 

awarding a service connection based on the record as it 

stood; thus, reversal would inure in them the relief they 

seek without further fact-finding on tangential matters.

The Secretary makes the related jurisdictional argument that the instant appeals do not involve a “challenge 

to the validity of any statute or regulation or any interpretation therefore,” or require interpretation of constitutional or statutory provisions. See 38 U.S.C. § 7292(c). 

This, the Secretary contends, divests the court of jurisdiction notwithstanding satisfaction of the Williams conditions. Prior decisions by this court, however, make clear 

that questions concerning the Court of Appeals for Veterans Claims’ statutory authority to remand are legal 

questions that negate the Secretary’s alternative jurisdictional challenge. Myore v. Principi, 323 F.3d 1347, 1353

(Fed. Cir. 2003) (citing Stevens, 289 F.3d at 818 and 

Adams, 256 F.3d at 1321).

Turning to the third Williams condition, there is undoubtedly a substantial risk that the legal issue will not 

survive a remand. A remand will surely moot Appellants’ 

claim that they have a legal right to a favorable decision 

without the need for a remand. Byron, 670 F.3d at 1205. 

“Our cases have distinguished (1) situations where an 

issue might be mooted by a failure to present sufficient 

evidence on remand from (2) situations where the very 

authority of the [Court of Appeals for Veterans Claims] to 

remand might be mooted by the remand itself.” Duchesneau v. Shinseki, 679 F.3d 1349, 1353 (Fed. Cir. 2012). 

This court does not have jurisdiction in cases presenting 

the first situation. See, e.g., id.; Donnellan v. Shinseki, 

676 F.3d 1089, 1093 (Fed. Cir. 2012); Joyce, 443 F.3d at 
 DELOACH v. SHINSEKI 15

850; Myore, 323 F.3d at 1352–53; Winn v. Brown, 110 

F.3d 56, 57 (Fed. Cir. 1997). This is true regardless of 

whether the appellant would win or lose based on the 

facts and legal standards confronted on remand so long as 

the disputed issue would survive a subsequent appeal. 

See Winn, 110 F.3d at 57. Conversely, in cases like Adams, Stevens, and Byron, we have held that challenges 

questioning the authority of the Court of Appeals for 

Veterans Claims to order a remand, which might not 

survive a remand, satisfied the third Williams condition

and, therefore, constituted an appealable final decision. 

Duchesneau, 679 F.3d at 1354. Because the instant 

appeals present the same question of the authority of the 

court to reverse instead of remanding, jurisdiction is 

therefore proper.

B. DISCUSSION

Congress has limited the scope of our review of a decision of the Court of Appeals for Veterans Claims by 

statute. See 38 U.S.C. § 7292. Absent a constitutional 

issue, this court may not review challenges to factual 

determinations or challenges to the application of a law or 

regulation to facts. 38 U.S.C. § 7292(d)(2). We review 

questions of law, including the interpretation of statutes 

and regulations, de novo. DeLaRosa v. Peake, 515 F.3d 

1319, 1321 (Fed. Cir. 2008).

The Court of Appeals for Veterans Claims has “exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.” 38 U.S.C. §7252(a). On review, 38 

U.S.C. §7261(a)(4) instructs the court to examine the 

Board’s findings of material fact according to a “clearly 

erroneous” standard. 38 U.S.C. § 7261(a)(4); see also

Padgett v. Principi, 19 Vet. App. 133, 145 (2005) (en banc) 

(identifying the Board’s decision regarding service connection as a finding of fact that the court “reviews under the 

‘clearly erroneous’ standard of review set forth in 38 
16 DELOACH v. SHINSEKI

U.S.C. § 7261(a)(4)”), withdrawn on other grounds, 19 Vet.

App. 334 (2005), rev’d, 473 F.3d 1364 (Fed. Cir. 2007). 

Where the Court of Appeals for Veterans Claims determines that findings of material fact adverse to the claimant are clearly erroneous, the court shall “hold unlawful 

and set aside or reverse such finding[s].” 38 U.S.C. 

§7261(a)(4) (emphasis added). “A finding is ‘clearly erroneous’ when, although there is evidence to support it, the 

reviewing court on the entire evidence is left with the 

definite and firm conviction that a mistake has been 

committed.” United States v. U.S. Gypsum Co., 333 U.S. 

364, 395 (1948); see also Andino v. Nicholson, 498 F.3d 

1370, 1373 n.1 (Fed. Cir. 2007) (“To be ‘clearly erroneous’

there must be a definite and firm conviction that a mistake has occurred.”); Sanchez-Benitez v. Principi, 259 F.3d 

1356, 1360 (Fed. Cir. 2001). 

In reviewing for clear error, the Court of Appeals for 

Veterans Claims is required under § 7261(b) to “take due

account of the Secretary’s application” of the benefit of the

doubt standard outlined in 38 U.S.C. § 5107(b). 38 U.S.C. 

§ 7261(b); see also Mariano v. Principi, 17 Vet. App. 305, 

313 (2003). The statutory provision establishing the 

benefit of the doubt standard provides: 

The Secretary shall consider all information and 

lay and medical evidence of record in a case before 

the Secretary with respect to benefits under laws 

administered by the Secretary. When there is an 

approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the 

benefit of the doubt to the claimant.

38 U.S.C. § 5107(b). 

The dual requirement placed on the Court of Appeals 

for Veterans Claims by § 7261(a)(4) and (b)—to hold 
 DELOACH v. SHINSEKI 17

unlawful and set aside or reverse clearly erroneous findings of fact and take due account of the Secretary’s application of the benefit of the doubt standard—indicates 

congressional intent to invest the court with the authority 

to reverse certain Board decisions. Congress’ enactment 

of the Veterans Benefits Act of 2002, which altered the 

scope of the court’s judicial review, expressly empowered 

it to reverse adverse findings of material fact that are 

“clearly erroneous” rather than remand to the Board for 

re-determination. Veterans Benefits Act of 2002, Pub. L. 

No. 107-330, § 401(c), 116 Stat. 2820, 2832 (codified as 

amended at 38 U.S.C. § 7261(a)(4)). 

The language of the statute and legislative history indicates that the Court of Appeals for Veterans Claims has 

full authority to reverse cases that are clearly erroneous. 

See 38 U.S.C. § 7261(a)(4). Congress added the “or reverse” language to the statute with the enactment of the 

Veterans Benefits Act of 2002 (“VBA”). See Pub. L. No. 

107-330, § 401(c), 116 Stat. at 2832. The problem in 2002 

with the appeals process was the number of cases being 

remanded by the court and the delay those remands 

caused. See Pending Legislation: Hearing Before the S. 

Comm. on Veterans’ Affairs, 107th Cong. 60, 66 (2002) 

(statement of James Fischl, Director, The American 

Legion) (addressing the long wait created by the remand 

of cases by the Court of Appeals for Veterans Claims back 

to the Board). Congress added the “or reverse” language 

to mitigate this problem. See id. (expressing the view 

that the “or reverse” language would “address[] a longstanding concern of The American Legion . . . [and] provide more timely final decisions on issues on appeal.”). 

It was Congress’ intent to clarify the Court of Appeals 

for Veterans Claims’ authority and expressly instruct the 

court that it had the power to reverse. See 148 Cong. Rec. 

22,913 (2002) (statement of Sen. Rockefeller). Senator 
18 DELOACH v. SHINSEKI

Rockefeller, Chairman of the Committee on Veterans’ 

Affairs, explained that “the addition of the words ‘or 

reverse’ after ‘and set aside’ . . . is intended to emphasize 

that the [Court of Appeals for Veterans Claims] should 

reverse clearly erroneous findings when appropriate, 

rather than remand the case.” Id. Representative Lane 

Evans, a House committee member on the legislation, 

expressed the same when urging for passage of the bill. 

Id. at 22,594 (explaining that the legislation “clarifies the 

authority of the Court of Appeals for Veterans Claims to 

reverse decisions of the Board of Veterans Appeals in 

appropriate cases”). Additionally, the House and Senate 

Committees’ Joint Explanatory Statement to the VBA 

noted that the addition of the language indicates that 

both Houses of Congress “expect the Court to reverse 

clearly erroneous findings when appropriate, rather than 

remand the case.” Id. at 22,917 (emphasis added). Consequently, the court is free to exercise reversal power in 

appropriate cases and is not legally restricted only to 

remand.

Against this backdrop, we turn to the instant appeals. 

Appellants argue that the Court of Appeals for Veterans 

Claims erred by remanding instead of reversing the 

Board’s decision under the clearly erroneous standard. 

Reversal is mandated, they maintain, when the records 

are viewed in their entirety and after they have been 

given the benefit of the doubt under § 5107. Appellants 

reason that due to the interplay between the court’s 

ability to reverse and veteran’s entitlement to the benefit 

of the doubt, it has a duty to independently weigh the 

entirety of the evidence to determine whether the Board’s 

factual findings are clearly erroneous. We disagree. The 

Court of Appeals for Veterans Claims, as part of its clear 

error review, must review the Board’s weighing of the 

evidence; it may not weigh any evidence itself. As we 

have recognized, the statute prohibits the court from 
 DELOACH v. SHINSEKI 19

making factual findings in the first instance. Andre v. 

Principi, 301 F.3d 1354, 1362 (Fed. Cir. 2002) (quoting 38 

U.S.C. § 7261(c)). 

The statutory provisions are consistent with the 

general rule that appellate tribunals are not appropriate fora for initial fact finding. Thus, the 

Supreme Court has held that when a court of appeals reviews a district court decision, it may remand if it believes the district court failed to 

make findings of fact essential to the decision; it 

may set aside findings of fact it determines to be 

clearly erroneous; or it may reverse incorrect 

judgments of law based on proper factual findings; 

“[b]ut it should not simply [make] factual findings 

on its own.”

Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)

(alterations in original) (quoting Icicle Seafoods, Inc. v. 

Worthington, 475 U.S. 709, 714 (1986)). We reaffirm that 

the evaluation and weighing of evidence are factual 

determinations committed to the discretion of the factfinder—in this case, the Board. Bastien v. Shinseki, 599 

F.3d 1301, 1306 (Fed. Cir. 2010). But where the Board 

has performed the necessary fact-finding and explicitly 

weighed the evidence, the Court of Appeals for Veterans 

Claims should reverse when, on the entire evidence, it is 

left with the definite and firm conviction that a mistake 

has been committed. U.S. Gypsum, 333 U.S. at 395.

Appellants also argue that the Court of Appeals for 

Veterans Claims impermissibly remanded after allegedly 

finding that the evidence was controverted. As explained 

below, we do not perceive the courts’ remand orders as 

contingent upon the existence of controverted evidence, 

but rather on procedural and substantive defects in the 

proceedings before the Board. Thus, this argument 

entitles Appellants to no relief. To be clear, this opinion 
20 DELOACH v. SHINSEKI

does not foreclose the Court of Appeals for Veterans 

Claims from finding that reversal is appropriate where, 

despite the existence of controverting evidence, a finding 

of material fact is clearly erroneous. See Padgett, 19 Vet. 

App. at 147. 

In Mr. Deloach’s case, the Court of Appeals for Veterans Claims held that the Board failed to provide adequate 

reasons and bases for rejecting the opinions of Drs. Jenness-McClellan and Atkins. “The Board is statutorily 

compelled by [38 U.S.C. §] 7104(d)(1) to articulate reasons 

and bases to provide for judicial review of its findings and 

conclusions.” Sickels v. Shinseki, 643 F.3d 1362, 1365 

(Fed. Cir. 2011). Without an adequate statement, it is 

impossible to understand the precise basis for the Board’s 

decision and conduct informed appellate review. The 

Court of Appeals for Veterans Claims also determined 

that the VA failed to provide an adequate medical exam 

despite the Board’s earlier order of an examination 

providing an opinion on the etiology of Mr. Deloach’s 

current diagnosis. The VA is required to provide a medical examination when “necessary to make a decision on 

the claim.” 38 U.S.C. § 5103A(d)(1). And if inadequate, 

the VA should request clarification or order a new examination. See 38 C.F.R. § 4.2. Remand is appropriate under 

either of these defects identified by the Court of Appeals 

for Veterans Claims. See Adams, 256 F.3d at 1322 (“If the 

reviewing court simply cannot evaluate the record before 

it, the proper course, except in rare circumstances, is to 

remand to the agency for additional investigation or 

explanation.” (quoting Fla. Power & Light Co. v. Lorion, 

470 U.S. 729, 744 (1984))).

In Mr. Greene’s case, the Court of Appeals for Veterans Claims viewed the Board’s justification for according 

less probative weight to the opinions of Drs. Carrillo and 

DiBacco as unclear, inadequate, and legally erroneous. 
 DELOACH v. SHINSEKI 21

Similarly, it found inadequate reasons and bases for 

affording the C&P examiner’s report more probative 

value, particularly when it was internally inconsistent 

and ambiguous. As we previously recognized, “when the 

Board misinterprets the law and fails to make the relevant initial factual findings, ‘the proper course for the 

Court of Appeals for Veterans Claims [is] to remand the 

case to the [Board] for further development and application of the correct law.’” Byron, 670 F.3d at 1205 (citing 

Hensley, 212 F.3d at 1264); Stevens, 289 F.3d at 817–18 

(holding that when the Board commits a legal error “the 

appropriate remedy is normally for the reviewing court to 

remand”); Adams, 256 F.3d at 1322 (remanding for explanation of a medical examination or a supplemental exam 

given the ambiguity of the original). As was true in Mr. 

Deloach’s case, the Court of Appeals for Veterans Claims 

properly ordered remand in Mr. Greene’s. No doubt 

situations will arise where clearly erroneous judgments 

will be based on proper factual findings where the court

must reverse rather than remand. Neither of these 

appeals, however, present such a situation. 

III. CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals for Veterans Claims’ decision remanding the case to 

the Board.

AFFIRMED

COSTS

Each party shall bear its own costs.