Chavez: The Federal Circuit Considers a Remand Order

Chavez v. McDonough, Opinion Number 2022-1942, was decided April 19, 2024 by the Federal Circuit and attacks a Veterans Court remand.

In 2005, the veteran had been granted service connection for PTSD at a 100% rating.  In 2007, the veteran sought to have the rating be made permanent and total.  After a new examination, his disability was reduced to 50%.

Many attorneys are looking for ways to end the hamster wheel of DENY-REMAND-DENY-REMAND-DENY that the VA is so effective at using until a veteran misses a deadline or just gives up.  This was a case attacking those endless remands by attempting to force the Veterans Court to make a decision.  After a NOD was filed, the VA increased his rating to 70%.

The Board upheld the reduction from 100% to 70%.  The Veterans Court agreed the Board had improperly relied on evidence developed after the rating reduction but simply remanded the claim as opposed to reversing as was requested by the veteran.

Initially, the VA argued the Federal Circuit did not have jurisdiction over the appeal because the remand was not a final order within the Federal Circuit’s jurisdiction.  The VA argued the Veterans Court did not make any “clear and final decision on a legal issue,” but merely remanded for further consideration of the issues by the Board as a predicate to further review of those issues by the Veterans Court.  However, the Federal Circuit rejected this argument saying:

“That characterization of Mr. Chavez’s argument is inaccurate. His argument is not simply that the Veterans Court erred in remanding the case to the Board; instead, he argues that when the Board fails to provide adequate reasons or bases in support of its decision that a disability rating was reduced in accordance with law, the Veterans Court is legally compelled to reverse the Board outright and may not remand the case to the Board for further proceedings. That is a legal argument, and the Veterans Court has given a “clear and final decision” in response to that argument. That is, the Veterans Court has squarely rejected Mr. Chavez’s argument that the court lacks the authority to remand under those circumstances. Mr. Chavez’s legal argument may be meritless; indeed, we ultimately conclude that it is. But it is a legal argument nonetheless, and it is one that Mr. Chavez raised before the Veterans Court and that the Veterans Court squarely rejected.”

Id. at *5-6. It then summarized by saying: “Mr. Chavez argues that there is a legal prohibition against remanding the case once the Veterans Court finds that the Board has failed to apply the proper standards in a rating reduction case. Because that legal issue is properly before us, we deny the government’s request that we dismiss Mr. Chavez’s appeal.”  Id. at *8.

The Federal Circuit then turned to the merits and affirmed the Veterans Court.  The court explained the remand was because the Board noted some improvement in his ordinary life, but it was unclear from the Board’s decision whether the veteran attained material improvement under the ordinary conditions of life and work.  The Federal Circuit noted the Veterans Court found the Board’s explanation confusing and prevents effective judicial review and explained: “It is well settled that in federal appellate courts, the power to remand extends to cases in which “the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it.”  Id. at *10.

Despite the ultimate remand, this case demonstrates that a remand by the Veterans Court does not necessarily prevent the Federal Circuit from considering it.

Opinion by Judge Bryson and joined in by Judges Lourie and Stark.

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