NOTE: This order is nonprecedential.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 moves 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 earlier than April 20, 1993 for the award of 

service connection for post-traumatic stress disorder (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 Board’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, the Court of Appeals for Veterans Claims 

determined that the Board had failed to read Canady’s request sympathetically and thus 

set aside the Board’s dismissal order and remanded 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 issues raised in the two Board decisions 

are separate and distinct. 

 This court generally does not review nonfinal decisions of the Court of Appeals 

for Veterans Claims. Departure from this rule 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 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. 

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 that 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 Canady’s appeal is not sufficiently final for 

purposes of our review. Thus, we dismiss the appeal. 

2007-7021 2
 Accordingly, 

 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