NOTE: This order is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7021 MICHAEL W. CANADY, Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. ON MOTION Before BRYSON, Circuit Judge , FRIEDMAN, Senior Circuit Judge , and PROST, Circuit Judge

. PER CURIAM. O R D E R The Secretary of Veterans Affairs move s to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Michael W. Canady’s appeal. Canady opposes. The Board of Veterans’ Appeals issued two decisions. The first decision denied Canady’s request for an effective date earlie r than April 20, 1993 for the award of service connection for post-traumatic stress di sorder (PTSD) and for a total disability rating based on individual unemployability (TDIU) . In the second decision, the Board dismissed without prejudice to refiling Canady ’s request for revision on the basis of clear and unmistakable error (CUE) in the Board’s April 1991 decision denying service connection for PTSD. Canady appealed the Boar d’s decisions to the United States Court of Appeals for Veterans Claims. The Court of Appeals for Veterans Claims affirmed the Board’s first decision concerning the earlier effective date and TDIU claim.With respect to Canady’s CUE claim, t he Court of Appeals for Veterans Claims
determined that the Board had failed to read Canady’s reques t sympathetically and thus set aside the Board’s dismissal order and re manded the case for further proceedings. Canady v. Nicholson , 20 Vet. App. 393 (2006). The Secretary argues that this court lacks jurisdiction because the Court of Appeals for Veterans Claims decision was not final and does not meet the standard for appealability of nonfinal decisions set forth in Williams v. Principi , 275 F.3d 1361, 1363 (Fed. Cir. 2002). Canady responds that the i ssues raised in the two Board decisions are separate and distinct. This court generally does not review nonf inal decisions of the Court of Appeals for Veterans Claims. Departure from this ru le is justified only if three conditions are fulfilled: (1) there must have been a clear and final decision of a legal issue that (a) is separate from t he remand proceedings, (b) will directly govern the remand proceedings or, (c) if revers ed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seek ing review; and, (3) there must be a substantial risk that the decisi on would not survive a remand, i.e. , that the remand proceeding may moot the issue. Id. at 1364 (footnotes omitted). Both Board decisions concern PTSD and, if Canady ultimately prevailed on either, the result could be an earlier effective date. Thus, we determine that the issues raised in the two Board decisions are sufficiently intertwined t hat they should be considered together. See Smith v. Gober , 236 F.3d 1370 (2001). Because the Court of Appeals for Veterans Claims remanded to the Board for further proceedings concerning Canady’s CUE claim, we determine that C anady’s appeal is not sufficiently final for purposes of our review. Thus, we dismiss the appeal.

2007-7021 2Accordingly, IT IS ORDERED THAT: (1) The Secretary's motion to waive the requirements of Fed. Cir. R. 27(f) is granted. (2) The Secretary's motion to dismiss is granted. (3) Each side shall bear its own costs. FOR THE COURT

April 4, 2007 /s/ Jan Horbaly Date Jan Horbaly Clerk cc: Michael W. Canady J. Reid Prouty, Esq.
s17 ISSUED AS A MANDATE: April 4, 2007

2007-7021 3