United States Court of Appeals 

for the Federal Circuit 

__________________________ 

RACQUEL S. DUCHESNEAU, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7112 

__________________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in 09-1702, Judge Robert N. Davis. 

__________________________ 

Decided: May 17, 2012 

__________________________ 

LINDA J. THAYER, Finnegan, Henderson, Farabow, 

Garrett & Dunner, LLP, of Cambridge, Massachusetts, 

argued for claimant-appellant. With her on the brief was 

RONALD L. SMITH, of Washington, DC. 

L. MISHA PREHEIM, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, argued for respondentappellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, 
DUCHESNEAU v. DVA 2

and BRIAN M. SIMKIN, Assistant Director. Of counsel on 

the brief were MICHAEL J. TIMINSKI, Deputy Assistant 

General Counsel, and LARA K. EILHARDT, Attorney, 

United States Department of Veterans Affairs, of Washington, DC. 

__________________________ 

Before LOURIE, LINN, and PROST, Circuit Judges. 

PROST, Circuit Judge. 

Racquel Duchesneau appeals a decision of the United 

States Court of Appeals for Veterans Claims (“Veterans 

Court”), which vacated and remanded a decision of the 

Board of Veterans’ Appeals (“Board”) denying Ms. 

Duchesneau’s request for an increased disability rating 

for a service-connected right shoulder disability currently 

evaluated as bursitis. Duchesneau v. Shinseki, No. 09-

1702 (Vet. App. Jan. 31, 2011). Because the decision of 

the Veterans Court was not a final judgment, we dismiss 

the appeal for lack of jurisdiction. 

BACKGROUND

Ms. Duchesneau served on active duty in the United 

States Army from July 1996 to January 1999. In April 

2000, a Department of Veterans Affairs Regional Office 

(“RO”) issued a rating decision granting Ms. Duchesneau 

service connection for right shoulder bursitis with a 10% 

disability rating under 38 C.F.R. § 4.71a, diagnostic code 

(“DC”) 5203 (2010). In December 2003, Ms. Duchesneau 

filed a claim for an increased disability rating, but the RO 

denied her claim, maintaining that her right shoulder 

bursitis merited only a 10% disability rating. Ms. 

Duchesneau timely appealed that decision to the Board, 

and on January 13, 2009, the Board sustained the RO’s 

determination. The Board also considered, but ultimately 
3 DUCHESNEAU v. DVA

rejected, the possibility of whether Ms. Duchesneau’s 

limitation of motion in her right shoulder warranted a 

rating under other DCs in § 4.71a, including DC 5201, 

which provides disability ratings depending on limitation 

of motion of the arm. 

Ms. Duchesneau subsequently appealed the Board’s 

decision to the Veterans Court, where she made two 

arguments:1 (1) that the Board erred by failing to award 

her an additional disability rating for limitation of motion 

in her right shoulder under DC 5201; and (2) that the 

Board erred by failing to award her not only one but two 

separate 20% disability ratings under DC 5201 because 

her right shoulder’s range of motion is limited on two 

planes—flexion and abduction.2 In a January 31, 2011 

decision, the Veterans Court rejected Ms. Duchesneau’s 

claim for two separate disability ratings under DC 5201, 

holding that the argument was “obviated and negated by 

the [Veterans] Court’s recent decision in Cullen v. Shinseki, 24 Vet. App. 74 (2010).” Duchesneau, slip op. at 3. 

In that case, the Veterans Court held that “within a 

particular diagnostic code, a claimant is not entitled to 

more than one disability rating for a single disability 

unless the regulation expressly provides otherwise.” Id.

(quoting Cullen, 24 Vet. App. at 84). But after rejecting 

Ms. Duchesneau’s claim for two separate disability ratings under a single diagnostic code, the Veterans Court 

 1 Because Ms. Duchesneau did not contest the 

Board’s finding that she is not entitled to a higher disability rating under DC 5203, the Veterans Court deemed 

that issue abandoned. Duchesneau, slip op. at 1, n.1. 

2 The flexion plane is defined by the shoulder’s and 

arm’s forward movement while the abduction plane is 

defined by the shoulder’s and arm’s side movement. See

38 C.F.R. § 4.71 (2010) (Plate I). 
DUCHESNEAU v. DVA 4

proceeded to set aside the Board’s decision as to a single 

appropriate disability rating under DC 5201 and remanded the case to the Board to clarify the precise extent 

of her right shoulder limitation. Id. at 3-5. Ms. Duchesneau now appeals the Veterans Court’s interpretation of 

38 C.F.R. § 4.71a, DC 5201. 

DISCUSSION

On appeal, Ms. Duchesneau argues that the Veterans 

Court erred in holding that 38 C.F.R. § 4.71a, DC 5201 

provides only a single disability rating for a single disability. The government defends the Veterans Court’s decision, but first argues that this court should dismiss the 

appeal because the Veterans Court’s decision is not final. 

The jurisdiction of this court to hear appeals from the 

Veterans Court is limited by statute. Under 38 U.S.C. § 

7292(a), this court may review “the validity of a decision 

of the [Veterans Court] on a rule of law or of any statute 

or regulation . . . or any interpretation thereof (other than 

a determination as to a factual matter) that was relied on 

by the [Veterans Court] in making the decision.” Section 

7292(c) vests this court with exclusive jurisdiction “to 

review and decide any challenge to the validity of any 

statute or regulation or any interpretation thereof 

brought under this section, and to interpret constitutional 

and statutory provisions, to the extent presented and 

necessary to a decision.” While the statutory provision 

that gives this court jurisdiction to review a decision of 

the Veterans Court does not expressly premise our review 

on the finality of the Veterans Court’s decision, we have, 

nonetheless, “‘generally declined to review non-final 

orders of the Veterans Court.’” Williams v. Principi, 275 

F.3d 1361, 1363 (Fed. Cir. 2002) (quoting Adams v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001)). This finality 
5 DUCHESNEAU v. DVA

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)). Moreover, “[t]he 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.” Myore v. Principi, 323 F.3d 1347, 1352 

(Fed. Cir. 2003). 

Our decision in Williams provides a limited exception 

to the general rule that remand orders are not appealable. 

We will depart from the strict rule of finality when a 

veteran establishes: (1) the Veterans Court issued 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 issue adversely affects the party 

seeking review; and (3) there is 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. This exception to the finality rule is narrow. 

Jones v. Nicholson, 431 F.3d 1353, 1358 & n.3 (Fed. Cir. 

2005) (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, 
DUCHESNEAU v. DVA 6

256 F.3d at 1321 (noting that the finality rule should only 

give way in “unusual circumstances”). 

In the present case, the parties agree that Ms. 

Duchesneau satisfies the first two Williams factors. Ms. 

Duchesneau argues that the third Williams factor is also 

satisfied because “if the Board finds in Ms. Duchesneau’s 

favor on remand for the higher disability rating, Ms. 

Duchesneau will not be able to file a second appeal and 

reassert her claim for separate disability ratings for 

limitation of abduction and flexion.” Ms. Duchesneau is 

mistaken. If the Board grants Ms. Duchesneau a 20% 

disability rating under DC 5201, it must apply the law of 

the case and deny two separate disability ratings under 

DC 5201, even if the Board finds that Ms. Duchesneau’s 

right shoulder is indeed limited in both planes. Consequently, Ms. Duchesneau will still be adversely affected 

by the Board’s decision to limit her to just one rating. 

After completion of the remand proceedings and entry of a 

final judgment, Ms. Duchesneau is free to file a second 

appeal and raise her argument regarding the Veterans 

Court’s interpretation of § 4.71a. See Myore, 323 F.3d at 

1351-52; Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). 

Moreover, Ms. Duchesneau’s appeal to this court “may 

raise any objections to the judgment that was entered [by 

the Veterans Court], whether the errors arose from the 

original [Veterans Court’s] decision or the second and 

final decision.” Joyce v. Nicholson, 443 F.3d 845, 850 

(Fed. Cir. 2006). 

To be sure, Ms. Duchesneau currently has no disability rating under DC 5201. Indeed, she contends that 

there is a substantial risk that on remand the Board will 

continue to find that the evidence does not support a 

disability rating for either her abduction limitation or her 

flexion limitation, or both. Under these scenarios, Ms. 
7 DUCHESNEAU v. DVA

Duchesneau argues that the remand would moot the issue 

of whether she is entitled to two disability ratings under 

DC 5201. This argument does not, however, rise to the 

level of a substantial risk that the Veterans Court’s 

interpretation of § 4.71a would evade review. On remand, 

Ms. Duchesneau may present evidence that she is entitled 

to a disability rating under DC 5201 for her serviceconnected limitation of motion in her right shoulder. And 

Ms. Duchesneau is correct that she may lose on the facts 

she presents without regard to the Veterans Court’s 

interpretation of § 4.71a. That uncertainty alone, however, is not enough to create a substantial risk that the 

Veterans Court’s interpretation of § 4.71a would evade 

review. 

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 Veterans Court to remand might be 

mooted by the remand itself. For example, in Myore, we 

explained that the third Williams factor was not satisfied 

despite the fact that the veteran “may win or lose on the 

facts of her case without regard to the Veterans Court’s 

interpretation of [statute] . . . .” Myore, 323 F.3d at 1352.3 

That is to say, a failure to present sufficient evidence may 

have mooted the issue regardless of the Veterans Court’s 

interpretation of the statute, but that was not enough to 

establish a substantial risk that the Veterans Court’s 

interpretation would evade review. However, in both 

Adams, 256 F.3d at 1321 and Stevens v. Principi, 289 F.3d 

 3 We also explained that “[i]f Myore loses before the 

Board, and [the statute] 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 

[the statute] . . . .” Myore, 323 F.3d at 1352 
DUCHESNEAU v. DVA 8

814, 817 (Fed. Cir. 2002), we held that the third Williams

factor was satisfied because “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.” Myore, 323 F.3d at 1353. See also Winn, 

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”). Put differently, in order to satisfy the third 

Williams factor, “the appellant’s claim must be that he 

has a legal right not to be subjected to a remand.” Donnellan v. Shinseki, No. 2011-7127, slip op. at 7 (Fed. Cir. 

Apr. 18, 2012). 

In this case, Ms. Duchesneau does not question the 

authority of the Veterans Court to remand. Rather, she 

asserts that the remand proceedings should be conducted 

under a different interpretation of § 4.71a than that 

ordered by the Veterans Court. That Ms. Duchesneau 

may lose before the Board without regard to the Veterans 

Court’s interpretation of § 4.71a does not, however, create 

a substantial risk that the Veterans Court’s interpretation of § 4.71a would evade review. Were we to hold 

otherwise and “accept [Ms. Duchesneau’s] framing of the 

exception to the rule against review of remand orders, the 

exception would swallow the rule.” Donnellan, slip op. at 

8. The Veterans Court’s remand is, therefore, not a final 

appealable order. 
9 DUCHESNEAU v. DVA

CONCLUSION

Because Ms. Duchesneau’s appeal does not present 

any issues that would evade further review by this court 

and because Ms. Duchesneau has not appealed from a 

final order or judgment, we dismiss the appeal for lack of 

jurisdiction. 

COSTS

Each party shall bear its own costs. 

DISMISSED