NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

BRIAN J. DAVIS,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-1904

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-6444, Judge Amanda L. Meredith.

______________________ 

Decided: July 20, 2022

______________________ 

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka, 

KS, argued for claimant-appellant. 

 SARAH E. KRAMER, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.

MCCARTHY, LOREN MISHA PREHEIM; Y. KEN LEE, DEREK 

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2 DAVIS v. MCDONOUGH

SCADDEN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Before MOORE, Chief Judge, PROST and HUGHES, Circuit 

Judges. 

MOORE, Chief Judge. 

Brian Davis appeals an order from the Court of Appeals for Veterans Claims (Veterans Court) remanding to 

the Board of Veterans’ Appeals (Board) for additional evidentiary development and for the Board to interpret certain ratings criteria found in 38 C.F.R. § 4.114, Diagnostic 

Code (DC) 7346. Because the Veterans Court’s remand order was not a final decision, we dismiss.

BACKGROUND

Mr. Davis served on active duty in the United States 

Marine Corps from January 1984 to January 1988. In 

2016, he filed a claim for disability compensation for gastroesophageal reflux disease (GERD) with the Department 

of Veterans Affairs (VA). The VA Regional Office (RO) assigned Mr. Davis a 10% disability rating pursuant to DC 

7346. Mr. Davis filed a Notice of Disagreement, and the 

VA conducted a second medical examination in October 

2018 to reassess Mr. Davis’ symptoms. The medical examiner opined that Mr. Davis’ GERD was not a “considerable 

impairment of health,” as required by DC 7346 for a disability rating higher than 10%, but did not provide any rationale for that conclusion. The RO then issued a 

Statement of the Case denying Mr. Davis’ request for a 

higher rating. The Board affirmed. 

Mr. Davis appealed to the Veterans Court, arguing

that the medical examiner’s opinion was insufficient and 

requesting that the Veterans Court define “considerable 

impairment of health” and “severe impairment of health” 

in DC 7346, which the Board had not done. The Veterans 

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DAVIS v. MCDONOUGH 3

Court agreed the Board clearly erred by relying on the examiner’s unsupported opinion and remanded for it to obtain an adequate medical opinion. Davis v. Tran, No. 19-

6444, 2021 WL 266550, at *3 (Vet. App. Jan. 27, 2021). 

However, it declined to define the ratings criteria and instead remanded for the Board to do so in the first instance. 

Id. at *4. Mr. Davis appeals the Veterans Court’s remand 

order, asserting that he was entitled to a pre-remand construction of DC 7346 by the Veterans Court. 

DISCUSSION

“[R]emand orders from the Veterans Court ordinarily 

are not appealable because they are not final.” Adams v. 

Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001). This avoids 

“unnecessary piecemeal appellate review without precluding later appellate review of the legal issue or any other 

determination made on a complete administrative record.” 

Cabot Corp. v. United States, 788 F.2d 1539, 1543 (Fed. Cir. 

1986). Under narrow and rare circumstances, however, review of a remand order may be appropriate. We may review a remand order from the Veterans Court

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., that the remand proceeding may moot 

the issue. 

Williams v. Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002).

The Veterans Court’s remand order is not a clear and 

final decision of a legal issue and thus is not reviewable

under the Williams exception. A remand order instructing 

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4 DAVIS v. MCDONOUGH

a lower tribunal to interpret a regulation is not a final decision of any legal issue. Cf. Ebel v. Shinseki, 673 F.3d 

1337, 1341 (Fed. Cir. 2012) (dismissing appeal where veteran did “not allege that the remand order misinterprets 

any statutory or regulatory language”). The Veterans 

Court merely exercised its authority under 38 U.S.C. 

§ 7252(a) to “remand the matter, as appropriate” for the 

Board to construe DC 7346 in the first instance on a more 

developed record. Davis, 2021 WL 266550, at *4. To the 

extent Mr. Davis disagrees with the interpretation the 

Board provides on remand, he may seek appellate review 

by the Veterans Court and, if necessary, this Court. The 

Veterans Court’s order instructing the Board to construe 

certain terms thus did not finally resolve the legal issue of 

DC 7346’s interpretation. 

Nor is there any indication the Veterans Court’s remand order has or will adversely affect Mr. Davis. On remand, the Board may well adopt a construction of DC 7346 

that favors Mr. Davis. Moreover, the remand will allow 

Mr. Davis to further develop the evidentiary record supporting his claim, including by obtaining a new medical examination. And, as explained above, to the extent the 

Board’s decision on remand is unfavorable, Mr. Davis can 

appeal that decision. Any adverse effect is thus entirely 

speculative. 

Mr. Davis contends that the Veterans Court’s decision 

will adversely affect him because it will result in a Board

interpretation subject to Auer deference.1 But this argument, too, asserts only speculative adverse effects. It 

1 Mr. Davis also argues the remand order deprives 

him of fair process because he will be unable to effectively 

participate in pursuing his claim in the absence of a construction of DC 7346. Because we determine the Veterans 

Court’s decision did not finally resolve a legal issue, we 

need not address Mr. Davis’ fair-process argument.

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DAVIS v. MCDONOUGH 5

assumes not only that the Board’s interpretation will disfavor Mr. Davis, but also that it will be entitled to Auer 

deference. The Board’s interpretation will receive Auer 

deference only if DC 7346 is genuinely ambiguous and only 

if the interpretation is reasonable. Kisor v. Wilkie, 139 S. 

Ct. 2400, 2414 (2019). Even then, it will not receive Auer 

deference unless it “reflect[s] [the VA’s] authoritative, expertise-based, fair, or considered judgment.” Id. (internal 

quotation marks and alterations omitted). That issue has 

not yet been decided. Thus, Mr. Davis’ assertion that the 

Board’s interpretation will enjoy Auer deference, and any 

harm allegedly arising from such deference, is mere conjecture.

CONCLUSION

The Veterans Court’s remand order does not satisfy the 

narrow Williams exception permitting review of non-final 

orders. We therefore dismiss Mr. Davis’ appeal.

DISMISSED

COSTS

No costs.

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